Who Is a Jew? Court Ruling in Britain Raises Question - NYTimes.com

Who Is a Jew? Court Ruling in Britain Raises Question - NYTimes.com The New York Times reports on a case in Great Britain in which a family is suing a Jewish Day School because the school rejected their son's application to the school.

A few of the relevant facts of the case:

• The boy's father is acknowledged to be a Jew.


• The boy's mother is a convert in the Progressive movement (the European equivalent of Reform)


• Religious schools receive funding from the state

The family sued and lost in the lower court, but the appeals court overturned that decision stating: “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act,” the court said. It added that while it was fair that Jewish schools should give preference to Jewish children, the admissions criteria must depend not on family ties, but “on faith, however defined.”

The case is now before the English Supreme Court.

I have no insight into English jurisprudence, but it seems to me that the argument of the decision of the appellate court is right but for the wrong reason. The appellate court should not get involved in the question of whether a Jew is anyone who calls themselves a Jew. If a religion sets certain tests on one's membership, that is the business of the religious community and the state should not get involved. Where the court should get involved is to decide how the state determines where the authority for determining religious membership lies. Does the state recognize different types of Judaism (Orthodox, Progressive, Liberal, Reform, Conservative, Reconstructionist, Humanist, etc) or does the state recognize only a religion called Judaism? If the former, then the state has determined that there are actually many different religions, each calling itself Jewish, but each in fact distinct and therefore entitled to define membership according to its own rules. However, if the state determines that there is only one religion called Judaism within which there are several legitimate but variant streams, then the state may elect to recognize that any person who is acceptable to one of those streams is a Jew for the purpose of the state's functions. The state may also choose to disenfranchise all of the streams but one or to create tests that allow a determination of what is considered a legitimate stream for the purpose of state recognition within the body called Jews.

The mistake that the appellate court makes is in trying to make a state determination of who is a Jew. The court would be better off determining who can legitimately make that determination within the competing Jewish claims.

But most important for Americans, this is a cautionary example of the slippery slope that could affect Jews in this country should state financing of private, religious schools be enacted. Once a school opts to accept state financing, whether offered directly in the form of grants or indirectly in the form of vouchers, the school loses substantial control to determine who may and may not attend the school. In a school whose population is itself a statement about the school's philosophy, this could be a serious challenge to their identity.

One could use this case to warn those in the religious community who support school vouchers to be careful what they wish for.