Who’s a Jew? In the UK, Judges Decide

November 8, 2009

A recent story in today’s New York Times illustrates just how important secularism – by which I mean the separation of religion and government – is to rational government. 

The case before Britain’s Supreme Court involved a 12-year-old student’s application to one of London’s publicly financed Jewish high schools.  (The UK has almost 7,000 publicly financed religious schools, representing Judaism, the Church of England, Catholicism and Islam, among others.)  Under a 2006 law, the religious schools can give preference to applicants of their own faiths, using criteria set by a designated religious authority. 

In this case, the applicant, identified in court papers as "M," was an observant Jew whose father is Jewish and whose mother is a Jewish convert.  M would be considered Jewish under many common standards. But the school defines Judaism under the traditional Orthodox definition; because M’s mother converted in a progressive, instead of an Orthodox synagogue, neither she nor her son are considered Jews under Orthodox Jewish law. The high school turned down M’s application.This case turned on whether the school’s test of Jewish identity was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M himself practiced Judaism.

The court concluded that basing school admissions on whether one’s mother is Jewish is by definition discriminatory. Whether the rationale was "benign or malignant, theological or supremacist," the court wrote, "makes it no less and no more unlawful."

In many cases, I tend to think that Americans can learn from our British cousins.  In this case, they have a good deal to learn from us.  Courts should not be in the business of deciding who counts as Jewish.  As we remove bricks from the wall of separation between church and state, we can expect more of this kind of nonsense in American courts.