Reflections on the JFS ruling
Last week, the new Supreme Court of the UK dismissed the appeal of JFS, an Orthodox Jewish school, against a judgment that had branded its admission policy discriminatory. The details of the case (which hinged on how the Law views the unique blend of ethnicity and religion that defines Jewishness in the context of the Race Relations Act) are mystifying even to insiders; the final result is deeply disappointing.Despite this, there are fascinating and surprisingly positive aspects to the judgment, as well as some delicious ironies that cannot go unmentioned. The ruling itself, which was handed down by only the slimmest of majorities (5-4) offers the most extraordinary vindication of Judaism, the motivation of the Chief Rabbi and of the governors of JFS. Is it not remarkable that Lord Phillips, the president of the court, should open a judgment about Jewish status with excerpts from Deuteronomy about intermarriage? All of the justices asserted that the Chief Rabbi (who is the arbiter of Jewish status for the Orthodox community) acted in the best possible faith and that ‘no-one doubts that he is honestly and sincerely trying to do what he believes that his religion demands of him’. The governors of JFS were also deemed ‘entirely free from moral blame’. Put simply, despite falling foul of the Law, the school’s admission policy, and, by extension, Judaism itself, are not ‘racist’ according to any normative understanding of the word. Yet the greatest irony is the justices’ realisation, in the words of Lord Phillips, ‘that there may well be a defect in our law of discrimination’. How astounding that legislation drafted to outlaw anti-Semitism, among other evils, has been utilised to achieve what Lord Rodger calls, ‘such manifest discrimination against Jewish schools in comparison with other faith schools’. Catholics and Muslims are entitled to admit children to their schools according to their faith criteria, but following yesterday’s ruling, Orthodox Jews are now not. Lady Hale, who, incidentally, voted against JFS, reflected on whether Jews ‘should be allowed to continue to follow [Jewish] law’ in this regard. Indeed, could one fail to agree with Lord Rodger’s assertion that ‘one can’t help feeling that something has gone wrong’? It is good news that several of the justices felt that there may be a problem with the law. However, while any legislative remedy will certainly be very challenging, we will need to muster the support of those who are able to influence this process to ensure that Judaism is treated on a par with other faiths.Jewish schools like JFS will now have to continue with the chaotic practice test forced upon them by the ruling. While compliance is, of course, mandatory, it undermines everything that the Jewish schools’ movement holds dear: the universal delivery of Jewish education to Jewish children regardless of practice or affiliation. Yet the Jewish community is renowned for its resourcefulness and ability to turn a crisis into an opportunity. Orthodox synagogues have been inundated with new families seeking schools’ ‘practice certificates’ for their children. Many have no previous affiliation to the Jewish community and their attendance at the synagogue is an unparalleled chance to reach out to them and share with them the beauty of Jewish life and observance. It may well be that this unwanted and unfortunate decision has quite unexpected consequences.