November 19, 2009
In light of what is going on across the pond these days, it behooves us to pay attention to what happens where you fail to separate state and religion. Though to be honest, when your head of state also serves as Supreme Governor of the Church of England, such an exercise might be somewhat difficult. Britain's Supreme Court (until recently known as the House of Lords) recently heard arguments on appeal from R (E) v. Governing Body of JFS, [2009] EWCA Civ 626, [2009] 4 All ER 375, and is expected to release a decision before the year is out. In making its decision, the Court will be determining not only the validity of the school's entrance policies, but the point at which religion will yield to other competing social values.
Background
Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school's own faith, using criteria determined by a designated religious authority. The Jew's Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school's present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).
M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly "converted", M was not regarded as Jewish and his application was denied.
M's father E alleges the refusal to admit M to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground of both his and his mother's ethnicity. JFS defends its action, stating that the criterion used to select students is purely religious and not ethnic in nature. At trial, the High Court of Justice agreed. The Court of Appeal overturned that ruling, on the basis that the admissions test was ethnic in nature and thus discriminatory. Since the test concerned the status of M's mother rather that M's personal religious practice, the test could not be said to be purely religious.
Comments
The court's ruling reveals several problematic issues. To begin with, there is considerable unease with the court's foray into the religious realm. As Lord Sacks wrote following the court's decision:
"An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake."
Under Orthodox Jewish belief, one's religious practices are largely irrelevant to their Jewish identity. As Rabbi Yitzchak Shochet famously said, “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish”. Conversely, one can be most devout of faith, but if not born Jewish (or "properly" converted) one would not be perceived as such by the Orthodox community. Ethnicity and the Orthodox faith are inextricably intertwined, and the court's attempt to separate ethnicity and religious practice inherently misunderstands the relationship between the two.
Be that as it may, the argument is made --not without footing-- that the private religious laws must yield when there is an adverse impact on social welfare. The problem is the Court of Appeals' conclusion that the admission criterion was an ethnic test is simply untenable. The first difficulty is understanding what ethnicity means. The Court of Appeal, when attempting to define what constitutes racial discrimination, refers to the House of Lords decision Mandla v. Dowell-Lee, [1983] 2 AC 548. In that case, Lord Fraser notes that an ethnic group is defined as a distinct community sharing certain characteristics. He goes on to state that a group is defined by shared characteristics, and membership in such a group is also open to members joining through a conversion process. Following that reasoning, the Court of Appeal concludes that (a) Jews constitute a racial group defined by ethnic origin and additionally by conversion and (b) to discriminate against a person on the ground that he or someone else is not Jewish is to discriminate on racial grounds.
Two points are relevant here. First, the court conveniently does not take notice of the following line from Mandla:
Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.
The very issue of the case at hand is that the group (the Orthodox Jewish community) had not accepted M's mother into the group by virtue of the wrong conversion process. Second, to discriminate on ethnic or racial grounds implies an almost immutable, or constructively immutable, characteristic that serves as the basis of the discrimination. In contrast, if M's mother had undergone the Orthodox conversion process, she would have been recognized as Jewish. There was nothing inherently "ethnic" in the decision; rather, it was the practice which formed the basis for inclusion in the group. The conversion process itself is an inherently religious practice, rather than ethnic. A possible response is that focusing on the mother's actions rather than M's means that the criterion is not religious in nature. Yet, were JFS to deny a child admission on the grounds his or her parents were born Jewish but did not practice religiously, can it be said that the decision would be "ethnic" rather than religious? My point is solely that the OCR took issue not with identity, but with the practice of converting Progressive rather than Orthodox; as such, the issue goes to religion rather than ethnicity. In the alternative, the two are so deeply intertwined that any religious criterion is by definition discriminatory.
A further response is that, by accepting the government's money, JFS' admissions policy became a social policy rather than a religious policy. If a school disliked the conditions associated with funding, it would be free to operate privately and determine their own admissions policy. That being said, it is important to examine the social goals the government is advancing. The Secretary of State for Education is intervening on behalf of the respondents, JFS, to argue that a faith-based admission criterion pursues a legitimate aim. The underlying policy purpose is to add to the diversity of choice for parents, and to enable children to be educated within the State sector in accordance with the values of their faith. Since such criterion are the only way to further that purpose, finding them discriminatory would take away from this social purpose. Additionally, Parliament has implicitly endorsed this practice through the enactment of the Equality Act of 2006, despite its potentially discriminatory effects. Accordingly, the appropriate balancing of competing social interests should be a matter for Parliament to decide, rather than the courts. The faith-based admission criterion at issue, therefore, in fact supports sound social policy rather than running contrary to it.
Comparative Law
A similar case occurred during the late 1980s in the Netherlands. In the Maimonides case, the Hoge Raad (the highest civil law court) accepted that an Orthodox Jewish school could exclude a boy from a non-religious family because it was based on consistent policy directly related to the religious foundation of the school. It would seem that a "religious" but non-Jewish individual could also be excluded because it doesn't fit within the religious foundation of the school.
In Canada, the courts have been prepared to value religious rights over certain other social policy concerns. In Dhillon v. British Columbia, [1999] B.C.H.R.T.D. No. 25, for example, the court held the religious rights of Sikhs to wear a turban trumps other safety concerns behind the helmet laws at issue. The fact that most religious education is not eligible for public funding (see Adler v. Ontario, 1996 CanLII 148 (S.C.C.)) largely prevents the issue from arising. If such an issue did arise, legislation similar to the Equality Act of 2006 would likely be held to infringe s. 15 because religion has been held to be a constructively immutable ground (as in Corbriere v. Canada, [1999] 2 S.C.R. 203.) While the Secretary of State points to an important policy objective, it is doubtful in the Canadian context whether similar legislation would constitute a minimal impairment under the proportionality test of s. 1.
Conclusion
If the newly minted Supreme Court is looking to make its mark, it has such an opportunity when it releases judgment on this case. I, for one, am curious to see which direction the Court will choose to take: whether it will sit back and largely defer to Parliament's social policy objectives, or whether it will try to carve out the appropriate spheres religion plays in society. The clash between different religious conceptions is almost always inevitable. In Canada, we pride ourselves on a widely diverse culture that is willing to accept a broad spectrum of beliefs. In the quest to increase inclusiveness, however, we inevitably run up against religions that by definition are exclusive. By granting equality with one hand, consequently we take away autonomy with the other. Canada --as with much of the world-- watches this case with bated breath.
9 Comments
May I comment briefly on this article?
The essence of the judgment given by the Court of Appeal in the case of “M” was that, in rejecting “M’s” application to the JFS, the school and Lord Sacks, the chief rabbi of the United Synagogue (the school’s parent body) brought to bear a criterion based on parental lineage rather than religious practice. That, said the Court of Appeal, was a breach of the 1976 Race Relations Act. It would have been open to the school and the chief rabbi to have rejected “M” on the grounds of his (and presumably his parents’) own religious practice, but they chose not to do so. Interestingly, the JFS has since admitted “M” and has given an undertaking that whatever happens, “M” and his siblings can remain at the school. In relation to religious practice, counsel for the JFS admitted at the Supreme Court hearing that “M” was regarded as Jewish by the Reform, Progressive and Masorti (Conservative) movements, but declared that although the rabbinical authorities of the Assembly of Masorti Synagogues regard “M” as Jewish, the criteria Masorti Judaism chooses to apply are not those of Orthodox Judaism. Indeed the lawyer speaking for the United Synagogue went further, asserting that “the different denominations of Judaism are … separate religions.” But “M’s” counsel answered this by presenting to the Supreme Court a document, signed by chief rabbi Sacks personally in 1994, certifying the St. Albans Masorti synagogue as “a congregation of persons professing the Jewish religion.” Why, if Masorti Judaism is a religion “separate” from Orthodox Judaism, such certification was ever given? Finally, I can assure the writer of this article that there are numerous examples of state intrusion into Jewish religious practice in the UK, ranging from interference with Jewish marriage laws in the 19th century to regulation of (and interference with) the laws pertaining to shechita (slaughter of food animals) in the 20th.
Professor Geoffrey Alderman
University of Buckingham, England
Interesting comment. I had read of the CA decision earlier, and am unable to understand it. One has a statute allowing for discrimination on the ground of religion, and an entirely reasonable method of determining whether someone qualifies as being of that religious group. How does ethnicity enter into it for an instant? Because one can be born into the group and stay in it, regardless of active belief? Then, as you say, the two concepts are indissoluble, but for the purpose of the Equality Act, 2006, religion has to trump because religion is the determining factor for that decision (who gets to go to the religious school).
Canada may treat religion as a constructively immutable characteristic, but presumably it also accepts voluntary mutation - so if the boy's mother in the English case had converted by the Orthodox method here, she and the boy would have been recognized as Jewish here (assuming there were some legal reason to characterize someone by his or her religion, which is not clear) - though the law would have recognized her immutable status as Christian/Hindu/pagan/whatever she was before, up to the moment of conversion.
The fewer times our legal system has to get into this mystical discussion, the better, in my view. But of course it does from time to time - to determine who is authorized to perform marriages, who qualifies for tax benefits as a religion, and so on. Sometimes the Supreme Court's test, which is essentially that of Linus van Pelt - it doesn't matter what you believe, so long as you're sincere - isn't really good enough for drawing the appropriate lines.
@ Professor Geoffrey Alderman
Thank you for your insightful comments. I was not aware "M" had been admitted to JFS, and I defer to your knowledge of other incidents of state interference with Jewish religious practice in the U.K. That being said, I would like to comment briefly on each of your points. First, the fundamental difficulty is in Orthodox Judaism's perceptions of religion and ethnicity being intertwined. While you mention that the board could presumably have rejected his admission on his parent's religious practice, I find it difficult to see how the two differ. If, hypothetically speaking, Orthodox Judaism required as one of its basic tenets of religious practice immersion in a body of water in accordance with certain specifications, and one did not adhere to such practice, I agree that they should fail the religious practice criteria. So too if the immersion, which forms part of the process of conversion, is not carried out according to those specifications, the conversion process fails as not meeting the religious requirements. The argument could be made that "ethnicity" flows from a religious failing, and thus any distinction is at its basis, a religious one.
As to your second point, it all depend on perspective. From an Orthodox Jewish perspective if one is born Jewish, they remain Jewish, whether they practice according to Reform, Conservative principles or not all. To profess, is to affirm belief in. There is no doubt that the Conservative Jews affirm believe in Judaism. However to an Orthodox perspective, the practice of those beliefs are not the "proper" practices. Hence insofar as the practice of religion, they are "separate religions".
Finally, while a state's intrusion into the religious sphere may often be mandated by important social objectives, one must tread cautiously. One must examine the underlying social goals to be advocated to be balanced against that intrusion. For example, if a religion advocated murder society would be justified in its intervention. The fact that there are historical precedents to such intrusion does not in itself justify it. For extreme example, you can look back to the 13th century to King Edward I expelling all Jews from England. While this may be a historical precedent one can hardly condone such state's actions. A line must be drawn somewhere, and courts should be chary of crossing it.
Could the genetics of both parents and the child have helped to determine this case? Are these child "M's" biological parents?
Each biological parent contributes half of the genetic make up to the baby. The female or mother is genetically XX. The female gives an X to the baby. The father of the baby is XY and gives either X or a Y. It is pretty clear it is the father's sperm that decides the gender of their biological baby.
In this case, the father is Jewish by birth and therefore, basic biology does not support this religious argument that a child is Jewish only if his mother is Jewish.
Diane,
While modern scientific knowledge may seem to question the basis for certain beliefs, there are practical reasons why certain religions focus on the birth mother. For example, prior to the emergence of DNA testing, there would be little way to know for certain who was the father of a child. Thus it would seem pragmatic to focus on the religion of the mother for certainty.
To respond briefly to your points: No one debates that both a father and mother are instrumental in the process of conceiving a child. Unless sex ed has changed recently, I think this is quite common knowledge. The fact that the father's sperm helps decide the gender of a child is quite beside the point, that a child is the by-product of two parents. Thus we return to the basic question of when thw two parents are of different religions, what religion is the child.
I take it your answer to this question is that religion should follow the father since his sperm decides the gender of the child. But why should this purely biological process have any bearing? Counter arguments abound that the mother, who arguably has a greater nurishing effect, and whose values are likely instilled in the child, should be decisive. While I am happy to debate the theological reasons for this choice, my point is simply that to determine the child's religion based on biology is fallacious. All the more so when you consider that religion is a concept of the spirit, and not solely of the body.
Alternatively, your point may be that if any parent is Jewish, so should be the child. However - ignoring the gender of the parent for the moment - if one parent is Catholic and the other Jewish, the child cannot be both. The religions are diametrically opposed theologically and from any perspective one cannot be both. So much for Chistmakkuh.
Hello Benjamin,
I appreciate your timely response and communication.
In this specific case, DNA testing was available and my query is why it would not be considered as contributory evidence to the child's true genetic identity. Isn't one half of the child's birthright Jewish if one assumes this is his biological father (DNA testing)? I do think the father's Jewish birthright is significant, coupled with the mother's sincere commitment and attempts to convert to the Jewish faith. I find it hard to believe, after what I read about this case, that this mother intentionally tried to circumvent the "correct" processes and/or procedures for her conversion. Is it possible there was a misunderstanding and that, neither she nor her husband clearly understand the absolute necessity to ensure she was "fully converted" (Orthodox perspective) before applying to have "M" enrolled in the school? While an individual can lie about his/her real identity, the scientific community, considers a DNA profile a reliable determinant of the individual's genetic identity.
I have little doubt that both parents are fully committed to raising their child to practice the Jewish faith properly. I hope he will also grown up with an appreciation for the power of love and the human spirit...I think "M's" mother and father are good role models for both.
Let us proceed with the assumption - as I believe it correct - that M's father is his biological father.
Like you, I don't believe M's mother tried to intentionally circumvent the process. She had converted through the Progessive movement and in accordance with their standards. She fully considered herself Jewish. One can imagine her indignation when she was informed she was not considered Jewish by Orthodox standards.
Let me pose a poor metaphor, to drive home a point rather than draw precise parallels. A student upon arriving in Canada meets an individual who tells her that he runs a college, and for a couple thousand bucks plus eight months of classes, she can receive a degree as a nurse. She pays the money. She spends eight months with several other students studying. She receives a degree and considers herself a nurse. Imagine her frustration when she applies to the hospital and finds out she was studying at a non-accredited "diploma mill", and she is not considered a nurse and cannot get a job.
The point is that we accept organizations have certain standards which if not complied with, do not entitle to the position. Good intentions are not the be all end all. I'm sure lawyers can appreciate this, knowing colleagues who have received a degree in the US and then find out they have to begin all over in Canada.
To your main point of genetics. I believe you're viewing Judaism as an ethnicity rather than a religion. To that effect, I believe the Court of Appeal as well got hung up on that concept, since ethnicity is immutable while religion is arguably not. Ethnicity is a by-product of genetics. Religion is not. Therefore genetics are not indicative of one's Judiasm.
To further emphasize the point, religion embraces absolutes. Morality is a white and black world. Relative morality, the by-product of an a liberal atheist perspective is the antithesis of religion. Universal morality however, presupposes the existence of a single deity since that would be the only logical basis for a "correct" way. In such a universe there is no room for halves, one cannot be half Jewish and half not. Thus if genetics reveal one is half Jewish, at best it canot be dispositive and we must rely on some other factor to tell us one hundred percent, what one is.
One final note. You mention that you have no doubt that both parents are fully commited to raising their child to practice the Jewish faith. I would add one caveat. To practice their version of the Jewish faith. Far be it from me to say one version of Judaism is better than another, let alone any religion from another. However if they are committed to a certain practice of Judaism, there is no reason why their beliefs should be imposed on another. If they have no desire to practice Orthodox Judiasm, then the school should not be forced to accept them. After all isn't that the entire purpose of the Equality Act, in giving preference to those of their own faith?
If the "nurse" would say she would abide by the hospital's rules, does that mean the hospital should be forced to hire her even though she does not have a degree?
(I do apologize for the length of these replies, I find the topic quite interesting)
Hi Benjy,
I too have been finding these comments fascinating ... and have been following these comments all day while approving them.
Just to make this even more fun, try googling "Jewish ethnicity." By no means do I suggest a Google search is an accurate way of finding the truth, but there's certainly an argument to be made that, while Judaism is not (in the traditional sense) an ethnicity, it has morphed into one over the years.
This can be supported through requirements of the religion. I am not Jewish but it is my understanding that Jewish children are encouraged or even forced to marry Jewish for bloodline purposes. I have also heard rumours that genetic testing has been done on Jewish ancestry.
Personally, I absolutely see religion as a choice. But I also can't discount the possibility that there may be a genetic element involved (however small).
Each individual in a family is by definition interrelated (like it or not) at several complementary levels including, but not limited to the following: culturally, socially, historically, economically-politically, emotionally/mentally, environmentally and (genetically). Can't this interrelatedness account for some of the fundamental options available for the diversity of practices in the Jewish faith? What I am suggesting, given my background as a retired nurse and teacher, is that DNA testing may offer a coherent identity which can be scientifically validated, in addition to, rather than to the exclusion of, the national-ethnic-religious package a candidate brings to the "job" interview.
Given that "M" did not have the "ideal profile", according to the Orthodox perspective, I would hope the school could show patience, tolerance and understand in this regard and help all the family to achieve the status of being "fully converted".
I wonder if "M" would have choosen this school for himself?
Note: A very low paid and minimally trained (no flashy degrees just worked on the nursing floor for years and years) but a highly skilled, knowledgeable and caring nurse (the head nurse) once told me, Diane, I feel you've presented me with a "fairly terminal case for dull philosophers."
I hope the dialogue will continue even if I have exhausted my limited contributions to the topic. My thanks to both Benjamin and Allison for this wonderful exchange.