M & JFS
It must be appreciated that this case was decided on the basis of The Race Relations Act 1976 This Act prohibits discrimination on racial ground, defines racial by reference to “colour, race, nationality or ethnic or national origins.”
In its judgement the Court of Appeal relied on the 1988 judgement of the House of Lords in Mandla v Lee where it was held that to fall within the meaning of “ethnic group” under the Act, the group must have 7 characteristics: a long shared history; its own cultural tradition; a common language; literature; religion; a common geographical origin; and being a minority or oppressed group within a larger community. It is considered that Jews fall within this definition and have long benefited from the protection of the Act.
Looking at it simply from the point of view of the Race Relations Act, it is hard to see how the Court of Appeal could come to any other conclusion than it did. Lord Pannick argued for the school that M was Jewish for all purposes of the Act except for the purposes of the Chief Rabbi’s office and the JFS. That means that if M were to apply for a job and be discriminated against on the grounds that he were Jewish he would be able to claim the protection of the Act. That is as one would expect but if it were agued as a defence that he was not Jewish how would he be able to prove his Jewishness? The Chief Rabbi could not help him and it would be left to others in the non orthodox traditions to assert his Judaism for the purposes of the Act. The best that the Chief Rabbi could do is to assert that he was being discriminated against because his father was Jewish and was therefore entitled to the protection of the Act! It is effectively on this basis that the Court decided against the school because the mother was not Jewish.
One of the characteristics of an ethnic group pursuant to the requirements of Mandla v Lee is religion. Those of us of the orthodox persuasion believe in Torah min Hashamaim . We believe in and observe to varying degrees, Kashrut.. Shabbat Observance has different requirements in the orthodox and progressive traditions. Generally the non orthodox differentiate themselves from the Orthodox by rejecting the concept of Torah min Hashamaim. This is in itself a sufficient doctrinal difference to argue that there are, in fact, different religions. Does that mean that for the purposes of the Act there is more than one Jewish ethnic group- e.g. Orthodox, Masorti or Progressive? This is a dangerous path to go down, particularly in a non Jewish public arena, but in welcoming the decision, Rabbi Danny Rich, speaking for Liberal Jews, in comments reported in the Jewish Chronicle appears quite happy to go down it.
Another problem in this case is that people considered Jews for the purposes of the Halachah can be accepted into the JFS but are perfectly at liberty to practice their religion in a progressive tradition. Put simply a person who is born of a Jewish mother and who with his/her family attends a non orthodox synagogue is entitled to attend the school. If such a child attends church with a non Jewish father he is still entitled to attend the school. In contrast a child of a non orthodox Jewish convert mother is not. Pursuant to the Act, in those circumstances the admission to JFS can only be on the basis of ethnic rather than religious grounds.
We should accept that the difficulty is procedural rather than substantive and may simply be remedied by an “opt in” rather than a definition from on high. Thus the first category of people eligible for the school should be children where both parents are members of a United Synagogue, Federation Synagogue or a Union of Orthodox Hebrew Congregations. I appreciate that that may mean that halachically Jewish families who wish to attend a progressive synagogue may have to pay membership at an orthodox synagogue as well but that is a small price to pay and may even provide a source of income for some smaller congregations. In addition there will be difficulties accepting children of a Jewish mother and a non Jewish father but again that is presumably a tiny proportion of the schools intake, albeit an important category.
The saddest thing about this fiasco is that, in the case of M, whose father is Jewish but whose mother is a progressive convert, it must have been appreciated that for the generally accepted norms of authentic orthodox Judaism, M would not be Jewish. Unless the House of Lords overturns this case (which now looks unlikely) the net result of an acceptable change to the entry requirements is likely to deprive both M and some halachic Jews, who may benefit from a JFS education, of the opportunity to enjoy one.