Thursday, December 17, 2009

Apparently Deciding Who Is Jewish Is Now Racially Discriminatory

This annoys me in so many ways:

The Jewish Free School has lost the hard-fought case on the criteria for admissions to this sought-after school. The next step might be to challenge equality legislation itself, as the admissions criteria, found to be racially discriminating, was based on the 3,500-year-old criteria for judging whether a person is Jewish or not, fundamentally by the religion of the mother.

The UK Supreme Court today, by the narrowest of margins, held that the admissions criteria of JFS, which gave preference in the event of oversubscription to children who are Jewish according to Orthodox Jewish law (either by descent or conversion), were in the definition of the 1976 Race Relations Act, directly racially discriminatory.

This despite the fact that Judaism in Jewish law is not a racial category. As Gledhill notes, anyone can become Jewish by conversion, but even more than that, even being Jewish by descent isn't a racial matter. If your mother was English and converted before your birth, that counts, although (as in the case that started this off, in which a boy's Italian mother was a convert) sometimes there are conditions that must be met before the conversion is considered adequate (in this case, the problem was that the synagogue under whose auspices the mother converted was liberal rather than Orthodox). The ruling is here (PDF). The majority tries, and tries, and tries to insist that it is not being anti-Semitic, and that it is not calling the JFS policy racist, but it rings very hollow. The reasoning given for treating the admission criterion as racial discrimination under the definition of the law is extremely strained in Lord Phillips's opinion, and insisting that there is no way to distinguish Jewish religion and Jewish ethnicity, which the presiding judge openly does, is a standard anti-Semitic ploy. Also, Lord Phillips, appealing to the Chief Rabbi's discussion of conversion, so massively misreads it as a discussion of Jewishness that it is difficult to see it as anything but deliberate. Lady Hale's reasoning is, as far as I can see, thoroughly incoherent; the mother's Italian origins were entirely irrelevant, since someone with Italian origins can be eligible for admission (as Lord Rodger rightly notes: "His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared..."). And, as any rational person knows (and as Lord Rodger also suggests), when you get absurd results on the basis of your reasoning, that should lead you to reconsider thoroughly the principles on which you got them, to make sure that no mistake was made on the way. Lord Mance accepts a ridiculous argument that requires reading a statement by the Office of the Chief Rabbi as saying that Jewishness is a racial category, when it actually just says that anyone recognized by the OCR is Jewish and considered to be Jewish, which is an entirely different thing. Lord Kerr says that the issue is "whether it is discrimination on ethnic grounds to discriminate against all those who are not descended from Jewish women," calmly ignoring the fact that the use of the Orthodox criteria for Jewishness makes this impossible: since you can be Jewish if you are not descended from Jewish women, use of the criteria cannot be discrimination against everyone not descended from Jewish women. Saying otherwise is a straightforward contradiction.

On the definition given by the act, a person or group racially discriminates if they treat someone less favorably for reasons of "colour, race, nationality or ethnic or national origins". Not one of these is genuinely involved here; treating the matter as discrimination on the ground of ethnic origins or ethnic status is absurd given that there is a perfectly straightforward way for someone to be eligible despite his origin -- matrilineal descent is merely one way to be eligible -- and given that on this argument virtually every religion becomes an ethnic group. The only issue involved in the case at hand was that the OCR does not recognize conversions for certain kinds of synagogues; the JFS policy is clearly proportionate to its aim, which is to give Orthodox Jews, whether they are practicing or not, a better education, including an education in the Jewish religion. The JFS got into trouble here precisely because it intended for all Orthodox Jews to be eligible for admission; if its admission criteria required proof of religious practice, it would not have had this problem, and would not have been accused by the UK's supreme court of racial discrimination under the law. But its mission is to give Orthodox Jews, practicing or not, a better understanding of the Jewish legacy, and therefore it counts as eligible anyone whom the OCR deems to meet the Orthodox Jewish criteria for being a Jew. And the Court has effectively ruled that any application of the Orthodox Jewish criteria for being a Jew is racial discrimination. This is the height of absurdity, and this decision has shown British discrimination law to be a laughingstock.

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