The following is a guest contribution. Reuters is not responsible for the content and the views expressed are the authors’ alone. Heather Miller Rubens is a PhD candidate in History of Judaism at the University of Chicago Divinity School.*
By Heather Miller Rubens
On June 11, London’s Jewish Chronicle ran the provocative headline: “Jewish girl’s King David place goes to non-Jew.” This breaking news is the latest incident in the Anglo-Jewish community’s struggle to establish a means of identifying their own that comports with British law. Since the British High Court recently declared the Orthodox Jewish matrilineal lineage test in violation of England’s racial discrimination laws, Anglo-Jews have had difficulty determining who counts as Jewish for admissions to Orthodox Jewish schools. (Photo: Big Ben, 9 May 2010/Chris Helgren)
In England, religious schools are permitted to give admissions preference to applicants who share the school’s religious affiliation. Usually this preference is a matter of mutual agreement between the students and the schools. Until recently, the Office of the Chief Rabbi (OCR), the designated authority over Orthodox Judaism in England, instructed Orthodox Jewish schools that a child was considered Jewish if he or she was born to a Jewish mother, regardless of his or her level of religious observance. Failing this, a child could also apply to undergo a conversion that would be recognized by the OCR. However, in December of 2009 the OCR’s matrilineal test was declared illegal in R v The Governing Body of JFS.
In R. v The Governing Body of JFS, twelve-year-old “M” applied for admission to the Jews’ Free School (JFS) in London. The well-regarded Orthodox Jewish school had more applicants than seats, and thus JFS employed a policy of giving preference to those applicants who were “…recognized as being Jewish by the Office of the Chief Rabbi (OCR)” (§24, UKSC 15). M was denied entry to JFS because he did not satisfy the OCR’s matrilineal test. While M’s father was Jewish by birth, M’s mother had converted to Judaism under the supervision of the Masorti Jewish rabbinate. England’s OCR does not recognize Masorti conversions. Thus, according to the OCR, M was ‘not Jewish’ because his mother was not Jewish by OCR standards, and M himself did not wish to undergo an Orthodox conversion.
M’s father sued JFS, arguing that in utilizing the matrilineal test JFS’s admissions policy violated the United Kingdom’s Race Relations Act of 1976. The British Supreme Court explained that while religious discrimination is permissible under British law for religious schools, racial discrimination is not under the Race Relations Act. The Court ruled that when JFS utilized the matrilineal test the school was engaged in ethnic discrimination, rather than religious discrimination. As Lady Hale said in the majority opinion: “M was rejected, not because of who he is, but because of who his mother is” (§66, UKSC 15). The Court instructed JFS to establish a new test that did not make determinations of Jewish identity based on ethnicity.