Who Is A Jew? UK Courts weigh in

Last week, the New York Times reported on a British case, here:

http://www.nytimes.com/2009/11/08/world/europe/08britain.html?em

For American lawyers (and Jews), the issue can be stated simply: can a Jewish high school (in this case, the Jews' Free School or JFS in North London) give preferential admissions treatment to halakhically Jewish children (that is, Jews by maternal descent or approved conversion)? The answer -- perhaps surprisingly, perhaps not -- is "no." While the school is permitted to discriminate in favor of Jews, it is not permitted, under British anti-discrimination law, to do so as a matter of "ethnicity" or "race," but only the basis of religious practice or faith. This is, of course, obviously deeply problematic for both halakhic and non-halakhic Jews -- who would more or less be unanimous, I think, in agreeing with Rabbi Yitzchak Schochet, chair of the Rabbinical Council of the United Synagogue, who is quoted in the article as saying that “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish.” Of course it doesn't -- as we all know (right?), at most it makes you a BAD Jew -- but no less a Jew.

There are lots of things to say about a case like this, but I'll confine myself to one: that it points out the degree to which what purports to be a secular legal and/or non-discriminatory approach to religion in fact embeds a deeply Christian (which is to say, creedal) idea of what religion itself IS. It fails, profoundly, to acknowledge that the difference BETWEEN various Christian sects (which tends to be creedal/doctrinal -- in or out on Virgin Birth, on papal infallibility, on celibate clergy, etc.), is not structurally similar to the difference between Christianity and Judaism (at least). Christianity, as a "daughter" religion of Judaism, deliberately (as part of what we might call its "marketing campaign" to the pagan world) cast off Jewish racial/ethnic particularity in favor of a certain version of universality. It created an alternative "biology" for a new Christian Church "family," in which actual blood relationship was subordinated to other connections, and to practices (like baptism, confession, attendance at Mass -- the sacramental structure, in essence). That's all well and good, as far as it goes -- the difficulty is when this becomes the definition of religion itself, so that anything not so defined ceases to look like religion at all (and thus must be shoehorned into another, equally problematic category, like race or ethnicity).

I don't have a freestanding opinion on whether JFS should or shouldn't have admitted M, whose father is halakhically Jewish but whose mother's conversion was not recognized by the relevant authorities. As an American raised under the 1st Amendment, the readiness of British courts to interject themselves into a dispute of this type is naturally a little unnerving. But more than that, I think we ought to be deeply troubled by the idea that Judaism and Jewishness must be theorized in terms that make Christians comfortable, or relegated to the increasingly-disreputable categories (for purposes of preferential treatment) of race or ethnicity.

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