Who Is a British Jew?
Anyone accused of racism in Britain stands in danger of extreme condemnation. The historical memory of the cost to the United Kingdom of defeating Nazism is carried along, apparently, by fear of a repeat. With forebodings of that kind in mind, the Race Relations Act of 1976 prohibited discrimination on grounds of “colour, race, nationality, or ethnic or national origins,” and subsequent acts have confirmed the thrust of it. The theoretical area between race and ethnicity is a slippery and undifferentiated zone, but the wording of the act seems intended to cover the prejudices that set people apart.
At about that same time, however, the United Nations passed the resolution declaring “Zionism is racism” with the very intention of encouraging ethnic or racist discrimination against Israel and anyone supporting it. This had a malign contemporary originality all its own. For if Israelis and Jews are truly to be perceived by the world as racist, then they are nothing more than criminals, and they are lost.
The UN resolution was eventually reversed, but the campaign to criminalize Israel as racist has ever since been pursued with persistence and considerable success by Arab and Iranian spokesmen and their well-wishers on the Left. Unexpectedly, indeed unimaginably, a small, localized, and very specific issue in London has added a new and potentially dangerous twist to it.
Last year, Mr. and Mrs. M applied to send their 12-year-old son E to the Jewish Free School, one of the most famous educational institutions in London (the three protagonists are identified only by initials). The Jewish Free School dates back to the 18th century. One of some 30 Jewish faith schools in Britain, every one subsidized by the state, it has 1,900 pupils and has been such an outstanding academic success for such a long time that every year there are many more applicants than places. Parents are reputed to go to great lengths to get their children in—entering them at birth, changing addresses, and so on.
Mr. M is Jewish and had brought his son up to be Jewish, so it appeared that the family had met the school’s essential precondition for entrance. Mrs. M, on the other hand, had been born into a Catholic family but converted to Judaism—and, by coincidence, she is a teacher in the school. A Reform rabbi had supervised her conversion.
Following the ruling of the Chief Rabbi of Great Britain, Jonathan Sacks, the Jewish Free School decided that E did not qualify for admission because Mrs. M’s conversion did not pass the test of Orthodoxy, and therefore their son was not deemed Jewish by the standards of the Jewish community of Great Britain. For the past 2,000 years or so, Jews have considered themselves Jewish by virtue of a Jewish mother—that is, by matrilineal descent.
Mr. M decided to sue the school on grounds of discrimination under the Race Relations Act. Stephen Pollard, editor of the Jewish Chronicle, a London weekly that is almost an official voice for Britain’s Jewish community, expressed the sudden anxiety that things might well get out of hand: “This is potentially the biggest case in the British Jewish community’s modern history. It speaks directly to the right of the state to intervene in how a religion operates.”
The fact that there is controversy over E’s Jewishness springs from the well-known inability of Jews to devise a consistent answer to the question “Who is a Jew?” More precisely, there are several answers to that question, and some are incompatible with others. In all likelihood, Mr. M wanted only to do the best he could for his boy, but by bringing suit, he was obliging the state to address a question of identity that divides and vexes Jews—a question, moreover, that only Jews themselves are in a position to resolve, and that is, and should be, of no real concern to anyone else.
The case went to court, and the court found in favor of the school. Mr. M then appealed, and last summer the Court of Appeal overturned the earlier ruling. It was legal as well as fair, that court found, for the Jewish Free School to base its admission policy on religion; the JFS is, after all, a parochial institution. But to exclude a pupil on grounds of race or ethnicity would be illegal, and that is what the court decided had occurred. The status of Mrs. M decided the issue. The court held that basing admission to the school on the traditional precondition of having a Jewish mother was some sort of test of ethnicity, not a matter of faith, and therefore discriminatory.
Whether the rationale for the school’s policy of admission was “benign or malignant, theological or supremacist, makes it no less and no more unlawful,” the court decided. Beneath the obfuscatory complexity of such negatives and adjectives working against each other, there surely lurks a discernible degree of doubt as to whether the court was contented with the implications of what it was doing. The obscurantist language may be explained by an unexpressed fear that the appeals-court judges themselves might be accused of racism.
The case was brought to its final hearing in front of the Law Lords, a 19th-century institution of the House of Lords transformed just this past October into an American-style Supreme Court consisting of nine judges. The Law Lords affirmed the decision of the Appeals Court, deciding that the boy had been excluded on racial grounds in contravention of the Race Relations Act. In its decision, Lord Phillips, the Lord Chief Justice, also detected the odor of ethnicity, without defining what exactly he meant by it: “one thing is clear about the matrilineal test; it is a test of ethnic origin by definition.” Using matrilineal descent to determine who is a Jew for the purposes of admission to the school was, therefore, “discrimination . . . on racial grounds.”
The judges reached their verdict by the slender majority of 5 to 4. They reflected awareness of the delicate ground they were standing on when they said that the Jewish Free School had not been racist in a pejorative sense, and that they did not consider Sacks, the Chief Rabbi, racist either. Sacks did not return the compliment. He finds that the judgment has “branded racist” the Jewish faith, and he made a further point directed against Mrs. M: “One cannot convert to an ethnicity.” A spokesman for Sacks summed up the view of Orthodox Jews: “Essentially we must now apply a non-Jewish definition of who is Jewish.”
Lord Rodgers, one of the dissenting judges, said that the decision “leads to such extraordinary results, and produces such manifest discrimination against Jewish faith schools in comparison with other faith schools, that one cannot help feeling that something has gone wrong.” In a thoughtful article in the Guardian, no friend of things Jewish as a rule, Naftali Brawer, a rabbi and an educator, spoke with dismay of what has become “a very heated, difficult and potentially divisive community debate.” The ruling “betrayed an appalling insensitivity towards the Jewish community by deeming racist its definition of Jewishness.” The Independent, also no friend of things Jewish, featured the bald headline, “Jewish School Racially Discriminated, Says Court.” No one could have predicted, ran an article in the Daily Telegraph, that a modern liberal democracy would take it upon itself to say: “We decide who is a Jew.”
Several commentators noted the irony that the Race Relations Act, set up to protect minority groups, has ended up punishing one of them. The court has declared that members of a particular religion do not have the final authority to define themselves, although such a definition has to be the core element of all religions. Neil Addison, a lawyer at the Thomas More Legal Centre, went as far as to declare the ruling redolent of “the most insidious form of totalitarianism”:
What the decision means is that the historic Jewish definition of “who is a Jew” is now illegal and Orthodox Jewish organizations and schools can no longer apply their own definitions of membership. As a lawyer I can understand the technical legal argument but as a human being I regard it as a profoundly dangerous extension of state power.
In response to the ruling, the Jewish Free School and the other Jewish faith schools are instituting what is called a Certificate of Religious Practice. Candidates for admission will have their level of Jewish observance tested. In other words, Jewish practice, rather than ethnicity or race, will now be the criterion that will keep the schools on the right side of the Race Relations Act. Parents are now taking their children to Orthodox synagogues to obtain these duly stamped certificates that will serve as passports to a school like the Jewish Free School.
Such a modification would have allowed young E to enter the school without all this fuss. By now there are evidently large numbers of men and women who are Jews merely because they think they are, not because Jewish law or tradition agrees. Edward Frankel, the great classical scholar who fled from Germany to Oxford in the 1930s, was one example among many, explaining to pupils that his mother was not Jewish, but “Hitler thought me Jewish and what was good enough for him is good enough for me.”
That may well be, but the imagery of a religion being forced to comply with a fiat of the state through the means of a stamp—effectively compelling the bureaucratic enforcement of the ultimate private matter in which the state should have no interest—itself has, as Neil Addison pointed out, a whiff of Hitler as well. The ruling also suggests the dangers involved when any religious institution comes to rely on the financial munificence of government.
Even more disturbing, the damage comes at a time when Britain is proving to be one of the most anti-Semitic countries in Europe. The number of attacks on Jews in Britain in 2009 far surpassed those in 2006 and 2008, previously the highest on record. An unusual combination of elite figures, neofascist thugs, and Muslim extremists speaks in unbridled tones about Jewry and the State of Israel, in a manner that suggests that the rhetorical violence is a progenitor of and an explanation for the physical violence taking place.
For example: a tribunal is currently inquiring into the circumstances leading up to the Iraq war of 2003. Two of its five members are the eminent historians Lawrence Freedman and Martin Gilbert. Writing in the Independent, Sir Oliver Miles, a former ambassador to Libya (and chairman of MEC International, which lobbies for Arab interests), objected to the tribunal’s composition with these words:
Both Gilbert and Freedman are Jewish, and Gilbert at least has a record of active support for Zionism. Such facts are not usually mentioned in the mainstream British and American media . . . it is a pity that, if and when the inquiry is accused of a whitewash, such handy ammunition will be available. Membership should not only be balanced; it should be seen to be balanced.
In other words, Jews cannot be trusted to be fair or truthful in anything that might involve their own interest. Sir Oliver has since protested that his words do not make him an anti-Semite; and another diplomat, Sir Alistair Hunter, has defended him in print by expressing what has become the characteristic apologia: “Anti-Israel is different from anti-Semitic. . . . There is . . . a growing tide of outrage at Israel’s behaviour towards the Palestinians.”
In the meantime, the British government has been openly hardening its policy against Israel; its latest move is to put into operation an implicit boycott of goods and merchandise imported from the West Bank by labeling them to show whether their origins are Israeli or Palestinian. Several trade unions are pushing for wider boycotts. An embargo already exists on some armaments. Recently a firm of British lawyers in cooperation with Hamas applied for a warrant to arrest the Israeli politician Tzipi Livni on charges of war crimes because she was the Israeli foreign minister during the Gaza fighting at the end of 2008. Warned in advance, Livni, who ran for prime minister in the recent Israeli election as a dove, felt obliged to cancel her visit to England.
Into this gathering climate of hostility drops the verdict of the Law Lords sitting in the Supreme Court, in which, with a sprinkling of qualifications and double negatives, it has stigmatized as racist those Jews most concerned with hewing to the specifics of Jewish law. The old slogan “Zionism is racism” has, in effect, been revived in a more explicit and comprehensive form: “Judaism is racism.”