By Patrick B. Craine
LONDON, England, December 17, 2009 (LifeSiteNews.com) – The U.K. Supreme Court overturned a 3,500 year old Jewish tradition yesterday, ruling that the Jewish law of matrilineality violates the country's anti-discrimination laws.
The decision came in a case between the Jewish Free School (JFS) and a father who had sought admission for his son. The son had been denied based on JFS' admissions policy, which gave preference in the event of oversubscription to children confirmed as Jewish by the Office of the Chief Rabbi.
According to Jewish law, a child is considered Jewish if his mother is Jewish, either by descent or conversion. But in this case, the conversion of the child's mother, who was originally Italian Catholic, was not recognized because it had been through a reform synagogue.
With five justices in favour and four dissenting, the Supreme Court found that JFS' admissions policy was, according to the 1976 Race Relations Act, directly racially discriminatory. While the justices emphasized that the policy was not 'racist', they nevertheless found that the school had excluded the child based on his mother's ethnic origins.
In a dissenting judgment, Lord Rodger insisted that the school's decision was actually based on religion and not ethnic origins, and he signalled the danger inherent in the ruling. “The decision of the majority means that there can in future be no Jewish faith schools which give preference to children because they are Jewish according to Jewish religious law and belief,” he wrote. “Instead, Jewish schools will be forced to apply a concocted test for deciding who is to be admitted.”
As a result of their loss in the Court of Appeal, JFS rewrote their admissions policy for the upcoming year, applying a test of religious practice rather than lineage. The Supreme Court favoured this approach, saying that “those who satisfy a practice test are likely to satisfy this requirement [of matrilineal descent],” and that this is now accomplished without the school employing “direct discrimination.”
“That test might appeal to this secular court but it has no basis whatsoever in 3,500 years of Jewish law and teaching,” commented Lord Rodger.
“The majority's decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can't help feeling that something has gone wrong,” he added.
According to the United Synagogue, an intervener in the case, “the closeness of the Court's decision underlines the inherent difficulty in applying the complex modern law of discrimination to an ancient religion, particularly where the UK law of direct discrimination does not allow any breach to be justified, however legitimate the motive.”
In fact, a majority of the Justices said that the law may be actually be wrong and one indicated that an amendment to the Equality Bill should be investigated.
In his dissenting opinion, Lord Brown pointed out the decision's violation of religious freedom. “The root question for the Court is simply this: can a Jewish faith school ever give preference to those who are members of the Jewish religion under Jewish law. I would answer: yes, it can. To hold the contrary would be to stigmatise Judaism as a directly racially discriminating religion.”
While the decision will have far-reaching effects for the U.K.'s dozens of Jewish schools, it also is a further warning sign for other faiths about the growing loss of religious freedom in the U.K., particularly as the country considers the new Equality Bill.
The U.K. Catholic Bishops expressed their fear last week that the proposed legislation could result in them facing prosecution for not ordaining women or practicing homosexuals as priests. The proposed religious exemption, they say, would only apply if priests were engaged in celebrating liturgy and teaching doctrine more than half of their time, which they consider unrealistic.
Dr. Simon Hochhauser, President of United Synagogue, said they were “extremely disappointed” with the Supreme Court ruling, which, he said “interferes with the Torah-based imperative on us to educate Jewish children, regardless of their background.”
“Practice tests are anathema to the United Synagogue, which for centuries has opened its institutions to all Jews, observant or not. These practice tests have no relevance under Jewish law and serve only to support the notion of a test of religion in the eyes of the English legal system. As Lord Brown noted, essentially we must now apply a 'Non-Jewish definition of who is Jewish.'”
See the 150-page decision.
See the 5-page press summary.
See related LifeSiteNews.com coverage:
U.K. Church Could Face Prosecution for Refusing to Ordain Women, Homosexuals: Bishops
https://www.lifesitenews.com/ldn/2009/dec/09121005.html