Latest update: December 4th, 2012
This past Chanukah, which of course commemorates the Jews’ revolt against Greek attempts to destroy Judaism, the Supreme Court here in Great Britain issued a ruling that attacked as racist and made illegal a fundamental principle of Jewish life: that Judaism is transmitted through the mother.
According to the judges, who split 5 to 4, the halacha violates the English Race Relations Act of 1976. The immediate cause of the ruling was the admissions policy of the Jewish Free School (JFS), a state-supported Orthodox high school in London. Its admissions were similar to those at most Jewish schools: priority is given children who are halachically Jewish; if there are unfilled places they go to gentiles who have a Jewish father, followed by gentiles with no Jewish ties.
Admissions policies in Jewish schools are no different from those in Catholic or Church of England schools. The original case was brought by a Jewish man whose child is halachically non-Jewish and was refused admission because there were no places unfilled by Jewish children.
This is now illegal in England, at least for Jews. It remains to be seen whether schools of other faiths will have to scrap their admissions policies. If they do, it would mean the destruction of parochial schools, which generally give the best education available to parents who cannot afford private schools in the UK. This is something many leftists and powerful figures in the current government have long been seeking.
The court’s ruling represents the kind of state interference in the core of Judaism and Jewish life rarely seen in history. The practical significance remains to be seen. The immediate effect is to force schools to institute admissions policies based on Jewish practice, as required by the decision of the justices.
For schools serving the Torah-observant community, this is what is done formally and informally anyway. These schools want to know about the synagogue (and, if relevant, the group or community) to which the family belongs. Keeping kosher and observing Shabbat and Yom Tov according to halacha are certainly required and would be assumed in most cases. Some schools might have other criteria, such as whether or not the family has a television or Internet access.
It is for the Anglo-Jewish schools – those for whom the chief rabbi is the supreme religious authority – that the question becomes more complex. Many of these schools, such as JFS, have reached out to all Jewish children regardless of observance of their family. Some, again like JFS, have reached out to children from non-observant families in an attempt to keep such children within the Jewish community. These schools now need to draw up criteria sufficiently loose so as not to deter the very children they seek while not being so loose that they are forced to take gentile children of Jewish descent over Jewish ones.
One obvious standard is to require synagogue membership and attendance, probably on Shabbat – since mere membership would not be enough, according to the justices – at an Orthodox synagogue. In essence this is no different from what the Church of England, which has the largest parochial school network in England, has long done, giving preference to those who attend their churches. It is not unusual to find middle class English families suddenly start attending church when their children come of school age.
If this is the extent of the practical fallout from the decision, the damage will be limited. Only schools like JFS that purposely cater to children of non-observant Jews will be affected. There could even be a positive result: families who do not belong to a synagogue would be required to join an Orthodox one and actually attend.
It is not known, however, if Jewish schools could legally use halachic criteria indirectly to ascertain Jewishness. There likely will be further court cases if schools attempt indirect means to give priority to Jews. But this opens the question of what constitutes Jewish practice. The non-Orthodox can be expected to challenge any criterion based on halacha.
It is also uncertain whether other areas of Jewish life based on the halachic definition of Jewishness are open to legal challenge. If they are, it could mean the destruction of organized Jewish life in the UK.
Since the principle of interference by secular courts in Jewish life has now been established, it is secular judges who are the final arbiters and authority on what is Judaism and Jewish practice. Rabbis are now only performers of religious ritual. Regardless of any practical consequences, this development is the most worrying and profound of all for people accustomed to living in a free society.
The best option is to change the law, as the judges indeed advised. Given the current political situation and with new elections due by early June, the only immediate choice is to add an amendment onto the “Equalities” Bill going through Parliament. But the Board of Deputies, the main representative body of Anglo-Jewry, will not do this because the non-Orthodox are opposed. The United Synagogue, the main Orthodox body, will not go it alone.
The only immediate legal option is to piggyback onto one of the amendments the churches are seeking, or perhaps get the churches to introduce an amendment that in reality would be for the Jews. Given the politics of the Anglo-Jewish community and the desire of the Board of Deputies and the United Synagogue to avoid a communal split, either of these would be useful.
Without a law change, some sort of fudge to cover over the chasm in the community is likely. Principled action is not something for which Anglo-Jewish leadership has historically been known. Whether waffling is necessary to avoid a split within the Jewish community is beside the point. This ruling has opened a Pandora’s box that can be closed only if one side or the other backs down, or if the British government and courts refuse to get involved any further, or if the Orthodox will openly defend the Torah.
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