The Supreme Court has spoken:
The Supreme Court has ruled a Jewish school in London did act unlawfully by refusing places to pupils it did not consider to be ethnically Jewish.
The boy has a father who is Jewish by birth and a mother who is Jewish by conversion.
But the conversion ceremony was conducted by a Progressive rather than an Orthodox synagogue which is not recognised by the Office of the Chief Rabbi.
Court president Lord Phillips said the school broke race relations legislation by restricting its admissions.
Lord Phillips said the justices had made a split decision of five to four.
But he stressed that while the school had acted unlawfully over its admissions, it should not be regarded as racist.
“The majority have made it plain in their judgments that the fact that the JFS admission policy has fallen foul of the Race Relations Act certainly does not mean those responsible for the admissions policy have behaved in a way that is racist, as that word as generally understood.”
The Chief Rabbi said:
“We must now set about establishing a more workable solution for a Jewish practice test to be used for admissions in 2011.
“JFS School felt it had no alternative than to continue to press for its test of ‘Jewishness’ to be based solely on orthodox Jewish religious law, rather than on a series of factors which themselves have no relevance under Jewish law, but which seem to support the notion of a test of Jewish practice required by the English legal system.”
Chief Rabbi Lord Sacks said the matter required “careful reflection and consultation” and instant reactions would be inappropriate.
“The closeness of the court’s judgement indicates how complex this case was, both in English law and in debated issues of Jewish identity.
I hope you’ll excuse me making an “instant reaction”. This is a blog, and I am not a religious leader, so shooting from the hip is my prerogative.
Religious sects have a perfect right to define themselves however they want. It is absolutely no business of the state how they do so.
However, the moment they take a penny from the state, the rules change. Denominational schools are funded from general taxation, and are subject to anti-discrimination law.
I have a more fundamental concern, which has yet to be addressed. I have a real problem with religious authorities being given the ability to decide on how to allocate scare resources. If there are self-identifying Jews who wish to attend Jewish schools, they should be allowed to do so. If there is insufficient provision to meet the demands for places, then more places should be provided. Clerics should never be in charge of rationing those resources. Neither do parents have the right to call for the exclusion of children, because they don’t meet a particular religious test.
This principle applies not just to Jews, but to members of all religions and none. At present, some parish priests require attendance at church as a condition of entry into certain oversubscribed schools. Attendance at church bears absolutely no relation to a child’s entitlement to education, and it is an outrage that priests are allowed to use state resources – taxpayers money – to encourage religious practice.
Now, I appreciate that some of you will say that the effect of this judgement will be that certain Jewish schools will introduce a religious practice test, whereas previously they allowed the children of Jewish atheists to attend, while excluding ‘observant’ non-halachically Jewish children. So it will be.
But that’s the next fight.
This is how the court divided (corrected):
Yes, there was DIRECT discrimination: Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke
Yes, thhere was INDIRECT discrimination: Lords Hope and Walker
No discrimination at all: Lords Rodger and Brown
The JC reports:
Lady Hale added that there may be a good case for allowing Jewish schools to adopt criteria “which they believe to be required by religious law even if these are ethnically based.
“But if such allowance is to be made, it should be made by Parliament and not by the courts’ departing from the long-established principles of the anti-discrimination legislation.”
She suggested that the mechanism for introducing such change might be through the Equality Bill which is currently making its way through the House of Lords.
A statement by the Board of Deputies said that it would immediately explore the possibility of a legislative change.
It said: “We will be exploring, as a matter of urgency and after consultation across the community, the possibility of a legislative change to restore the right of Jewish schools of all denominations to determine for themselves who qualifies for admission on the basis of their Jewish status, which we consider to be a fundamental right for our community and one with which the members of the Supreme Court had great sympathy.”
The Chief Rabbi Lord Sacks said he “welcomed” the suggestion that the issue may merit legislative remedy.
Here is Lord Phillips (speech? judgement? What is the correct term for the Supreme Court?):
This demonstrates that there may well be a defect in our law of discrimination. In contrast to the law in many countries, where English law forbids direct discrimination it provides no defence of justification. It is not easy to envisage justification for discriminating against a minority racial group. Such discrimination is almost inevitably the result of irrational prejudice or ill-will. But it is possible to envisage circumstances where giving preference to a minority racial group will be justified. Giving preference to cater for the special needs of a minority will not normally involve any prejudice or ill-will towards the majority. Yet a policy which directly favours one racial group will be held to constitute racial discrimination against all who are not members of that group – see, for instance, Orphanos v Queen Mary College  AC 761 at p. 771. Nothing that I say in this judgment should be read as giving rise to criticism on moral grounds of the admissions policy of JFS in particular or the policies of Jewish faith schools in general, let alone as suggesting that these policies are “racist” as that word is generally understood
I agree that orthodox halachic definitions of “who is a Jew” are not motivated by racism, in the ordinary sense of the word. Perhaps this should not be a case of ‘direct’ discrimination, but only ‘indirect’ and unintentional discrimination.
However, a ‘legislative remedy’ to permit discrimination would be an outrage. It would be a huge political blunder, that frankly would strip the Chief Rabbi of political legitimacy.
If such a move looks likely, I will actively campaign against it.
As a footnote, Lord Phillips has form here. It was he who went to the Jamaat-e-Islami controlled East London Mosque to endorse a discriminatory system of justice.
Why do our judges not uphold universal human rights? Why do they have such a soft spot for religious sectarianism? Do they think that they’re doing us a favour? They’re not.