Who is a Jew? - The Jewish Free School Case

In a decision that has gone mostly unnoticed by the American media, last week Britain's Supreme Court issued a ruling whose impact is potentially quite damaging to the Jewish community. The court held that defining one's membership in the Jewish faith on parentage alone is "racist and discriminatory."

Now in all fairness, Britain has no written constitution, no constitutional separation of church and state, and apparently no abstention doctrine whereby the courts won't get involved in deciding religious doctrinal matters. It also directly funds parochial schools. Thus, the likelihood of a similar case and a similar decision occurring in the United States is relatively small. Nevertheless, this case bears commenting on because of its implications for the Jewish community.

The case involved the Jewish Free School, a government funded Jewish school in London, which under British law, as a "faith school," is allowed to give preference to members of the Jewish religion in admissions, although it is barred from discriminating on racial grounds.

A student applied for admission to this school but was turned down because his mother wasn't born Jewish. The child and the mother were converted to Judaism by a Progressive rabbi, a conversion which was not recognized by Britain's Orthodox establishment. Britain's chief rabbi therefore ruled that the child was not Jewish and not eligible for admission to the JFS. The child's parents then sued the school claiming racial discrimination.

Whether this child's conversion was valid or not is not the issue. The issue here is that the courts decided the question of "who is a Jew?" And they decided that basing one's membership in the Jewish faith on lineage and parentage is discriminatory and racist. In other words the Supreme Court effectively said that Judaism's way of defining its own membership, as practiced for over 3,500 years, is illegal.

The Court's decision thus requires Jewish schools to rely on the belief and practice of a child to determine if that child is Jewish and eligible for admission to a Jewish school. Synagogue attendance, observing holidays and participating in Jewish rituals will now be the deciding factors in determining if one is Jewish or not.

Why belief and practice? Because those are the criteria for determining religion in the Christian world. And now, in England, those are the criteria in the Jewish world as well. As Lord Brown noted, essentially we must now apply a "non-Jewish definition of who is Jewish."

And you know what the ironic part of this decision really is? Hitler didn't care if a Jew practiced Judaism or not, was observant or not, or was converted by the Orthodox or Progressive or Conservative or Reform. To Hitler if you had Jewish blood, if an ancestor was Jewish, then you were Jewish. At least Hitler understood the importance of parentage to Judaism.

While I'm sure many might be glad that the Court struck down an Orthodox-only standard of conversion, bear in mind that this decision also essentially struck down a Reform standard of patrilineal descent and any other standard of lineal descent as well.

When the secular authorities begin to determine "who is a Jew," when the courts choose sides in an inter-denominational debate on the validity of conversions, on how we define our own membership criteria, or on any other standard of religious practice, there can be no good result. And I have no doubt that this decision will also be used by anti-Jewish groups, which are growing in strength and numbers throughout the world, to support their contention that Judaism is racist and that the state of Israel is the equivalent of apartheid South Africa.