WHEN ANTI-DISCRIMINATION LAWS DISCRIMINATE


You’ve got to hand it to the English.  They sure know how to sniff out a good case of discrimination when they sense one. 
 
Latest example of this prodigious olfactory power:  The case of “M”, the progeny of a non-Jewish mother and a Jewish father who lives in London.  “M” sought admission to the Jewish Free School (now known by its acronym JFS) in North-West London, an institute which characterizes itself as an orthodox Jewish day school offering a high school education to a wide spectrum of practices within the British Jewish community.  It has been doing so since 1732, making it the longest established Jewish educational institution in Europe.
 
” M” found himself  on the wrong branch of the family tree when he applied for admission to the school.  He was denied entry because it was determined that his mother’s earlier conversion to Judaism had not been conducted by strict orthodox standards.  This rendered ‘M’  technically non-Jewish, and therefore an inadmissible candidate.

A suit was launched on behalf of student ‘M’ under the U.K.’s 1976 Race Relations Act, claiming that school’s use of rabbinic law to determine the Jewishness of the student was  discrimination based on the student’s ethnicity –  the first time in English history such a claim had been made in a civil court.

According to ‘M”s legal team, an act of discrimination had occured and the father ( who had long since divorced the mother) had decided to ask the English legal system to fix it. 

For years the case dragged through the courts until the Court of Appeals finally held that the application of Jewish law in this case had indeed violated the Race Law.  And last week the newly re-established Supreme Court, by a narrow majority, supported the earlier decision, mandating that M  be allowed to attend the school.  

While the nine esteemed justices all went out of their way to make it clear that JFS’ admission’s policy was not ‘racist’ in the normal sense, the majority opinion nevertheless maintained that the observance of strict Jewish law by this school had infringed the rights of others.  Therefore JFS’s admission policies would not be allowed to stand.
 
 Anyone with even an ounce of understanding of the operation and influence of  common law must surely appreciate the seriousness of this assault on privacy and communal  rights.

 If not, then lets make it clear:  This decision amounts to a non-Jewish court dictating to a Jewish community as to who is and who is not a Jew, removing that privilege from the hands of the community’s own religious leaders.  

The  implications of the interference of a secular court  in a religious matter of this nature has telling consequences.  I have alluded in an earlier piece Tyranny of the Minority,  to the repercussions of  religious institutions bowing  to multicultural pressure. But with the Court now taking an interventionist role in a religious matter, all bets are off on the rights that will be trampled in the inexorable drive to build a just, diverse and truly multicultural British society.  
 
Faith schools could lose not only their right to select pupils on religious grounds but could have the entire gamut of religious life opened to judicial review by secular judges who will bring their own prejudices, experiences and likely ignorance to bear on the subject.

So a Jewish woman objects to her synagogue’s practice of dividing men and women during prayer services?   No problem.  Take it to the district judge who will review the case and decide it on the basis of common community practices.  Unhappy with the absence of a kosher certification for certain favorite products?  Well just hop  on down to your local attorney to file a complaint of  discrimination and presto, you will have a non-Jewish judge determining what kind of food is kosher and what is non-kosher.

In the United States, the Jewish Reform Movement and certain groups within the Conservative Movement, have long held that Orthodoxy’s focus on matrilineal descent is discriminatory.  But they should not be popping champagne corks any time soon.  With this Supreme Court decison, arguably the most authoritative voice on common law in the world,  schools, community centers, Jewish oriented social programs and even religious practices could all potentially come under the purview of secular law.  What the decision amounts to, (notwithstanding the five majority justices’ earnest hand wringing over the ‘unimpeachable’ and ‘ honest’ actions of the JFS school), is an attack on Jewish identity itself.  That is not a cause for any Jew to celebrate.
 
The decision could not have come at a worse time for  the British Jewish community.  According to commentator Gabriel Schoenfeld, anti-Semitic incidents in the first six months of 2009 alone – including vandalism, hate mail and direct attacks on Jews, exceeded the entire number for 2008. Antisemitism in Britain is higher than it has been in several generations and grows worse by the week with undisguised attacks on Jews from respectable publications such as the Times of London, the Guardian and numerous university student newspapers.
 
An example of how the British public is coming to view its Jewish citizens and its private religious schools, was given some illumination in a series of on-line comments which appeared with the report of the Supreme Court decision in the Daily Mail:
 
 
Denominational schools should be totally banned and made illegal . There should be no place of any Religeous( sic) Denominational Schools, Jewish,Muslim, Catholic or Church of England etc., in this multi-cultural country. It only breeds racism and religeous( sic) hatred. ALL religious schools should be banned and made illegal. ”
                                    Chomskyite, London, United Kingdom,
 
Of course parents should be free to bring up their children in whatever faith they wish  – but outside of the education system.  That way children of all faiths mix and make friends which makes for a more cohesive population.”
                                      Marie, Lancashire
 
“Faith schools foster division, you only have to look at Northern Ireland to see what they have done. Education should be purely that and not have anything to do with faith.”

                                                                  (unattributed)                                        
 
Christians in the U.K. have not escaped from this growing hostility to the practise of religious faith.  Last week Olive Jones, a 54-year-old math teacher who teaches children too ill to attend school, was dismissed following a complaint from a sick girl’s mother. She was visiting the home of the terminally ill child when she asked the mother if she would join her in prayer on the girl’s behalf.  The mother responded  that they were not believers and so this would not be appropriate.
 
Jones was then called in by her managers who, she says, told her that sharing her faith with a child could be deemed bullying.   They then informed her that her services were no longer required.
 
How ironic it is that the multicultural creed, with its unflinching emphasis on freedom of cultural expression, grows increasingly intolerant of any religious practice, even while it continues to extol the benefits of pluralism and diversity.
 
As a result of the Court decision, JFS has already changed its admission policies.  Unable to give priority on the question of Jewish status, the School will now give consideration to those who obtain a religious practice certificate, issued on the basis of a child’s synagogue attendance, Jewish education and communal activities. Fifty other Jewish communal schools across the nation have followed suit.
 
To an outsider this might not seem to be such a remarkable change.  But for the U.K. Jewish community, which has lived within English secular and Christian societies for 20 generations, and for whom the sense of Jewish identity is tied inextricably to the concept of Jewish nationhood, it prevails as a monumental challenge to its existence.  It means that the community can no longer safely conduct its religious practices without worrying how commonly held  secular attitudes might judge them;  it  implies that those same practices may be subject to review by legal and political elites, who are indifferent to Jewish history and insensitive to Jewish tradition.
 
Across the Atlantic, religious communities should be no less concerned about these developments. With our local judges give increasing weight to the decisions of extra-territorial courts, this could be a wind blowing our way.  Perhaps we should all be wondering then, if the day will come, when to be “Jewish”  or “Christian”, ” Muslim” or “Bahai” will be regarded by our Courts as so inherently discriminatory that further laws will be needed to protect society from the attitudes, views and policies of those inflexible ‘religious separatists.’

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: