Whose Jews?

The decision by the Court of Appeal in this case was wrong on its face. The student would face no obstacle to admission if her mother had undergone an orthodox rather than a progressive conversion. That’s not discrimination based on ethnicity but on religious practice. The chief executive of Liberal Judaism, Rabbi Danny Rich, admits as much in the article when he says the JFS is “selecting applicants on the basis of religious politics.” That’s not an ethnic criterion. The only question is whether a religious school is allowed to favor one religious denomination over another, which seems pretty clearly to be the case.

Apart from this, however, the British courts are imposing a Christian view of religion on Jews. Christianity is a universal religion that takes no account of ethnicity. In Judaism, however, religion is inseparable from a particular “chosen people,” ethnic Jews. By forcing British Jews to accept a distinction between religion and ethnicity, Britain is unabashedly Christianizing them.

An American court probably would not impose a similar decision. (The fact that this is a state school, let alone that there is even a Chief Rabbi of the United Hebrew Congregations of the Commonwealth, indicates that Britain lacks the same tradition opposing religious establishments — though of course the Chief Rabbi is no longer exactly the Archpriest of the Jews in England.) The U.S. Constitution requires more deference to religious beliefs and institutions. But an interesting question is to what extent the American government can regulate religious institutions that, directly or indirectly, receive public funds. Regulations like this one, which purports only to require a state-funded institution to follow a secular law, may implicate religious belief — and that might sometimes make public support for religious institutions self-defeating.

A Reply to Comments: So I should add, in response to the comment, “If the school doesn’t want state involvement, it shouldn’t take state funds. That principle holds on both sides of the Atlantic,” that I don’t think the principle actually holds on either side of the Atlantic. As the article notes, this school and others, though state-funded, are indisputably allowed to make admissions decisions based on religious preference. I’m writing something longer about the question in American law, but in brief I’d just note that even if a school receives public funds you still have concerns about unconstitutional conditions and government entanglement with religion if not simple free exercise.

With respect to the comments about liberalism and fairness, there is of course a liberal idea that requires public affirmation of liberal values, but there is also liberal civil libertarian tradition that would respect the right of people to associate, which includes a right to exclude, in order to profess religious or illiberal views. So I do think this is “only a legal issue” because we want fairness both for individuals and for religious communities that want to educate their children in a school that reflects their beliefs.

Regarding the Sullivan book, it seems to me vastly overstated. Sure, we need some laws of general applicability and it’s not always easy to draws lines or to define a “substantial” burden (in the case of the Florida law), but this is really an attack on judicial review in general rather than religious freedom in particular. Every constitutional doctrine has been attacked as vague and hard to define, but fuzzy rules abound not only in church-state relations but in obscenity or the Commerce Clause. That’s why judging is not always easy. I don’t actually think the case she discusses required such a searching examination of religious doctrine, but in any event this sort of case — involving a religious institution — is very easy. We exempt religious institutions from employment discrimination laws, for example, because we don’t want courts evaluating whether a religious institution’s decision was really motivated by religion. It is much clearer that a religious school is entitled to deference on the question of who counts as a member of its religious denomination in order to study there.

The Supreme Court has followed a course that involves deference to religious institutions, but no special exemptions from general laws for religiously motivated conduct. That seems to avoid the Sullivan problem of having to evaluate an individual’s religious motivation while still acknowledging the right of a religious school to make its own admissions decisions.

Anyway, Sullivan’s additional argument that laws protecting religious freedom “penalize nonreligious people, whose secular motivations … are not given equal status” is a non sequitur. There is no reason why a society may not privilege certain practices or motivations over others; indeed, the Constitution singles out religious activity for special protection. In a parallel example, hate crimes legislation singles out activity based on certain motivations for special punishment; there is no reason why a society may not also disfavor activity based on bad motivations.

I’m not familiar with Lieberman clauses beyond the Wikipedia article, but I don’t see why they should not be enforced as any other arbitration clause in any other contract.

With respect to my supposed “Catholic monolith,” while an orthodox school would require an orthodox conversion presumably a progressive Jewish school would recognize a progressive conversion. So I don’t think I’ve said that the chief rabbi gets to decide who’s a Jew for everyone, just that a religious institution gets to decide that sort of thing for itself — which is the opposite of saying that some state authority can mandate an answer to the question. You don’t get a “great and mutable Jewish diversity” when the state judiciary forces everyone to adopt the same standard regardless of their diverse religious traditions.

(In any case, all I’ve said is that the school didn’t violate the law and that it undermines Judaism to impose a religion/ethnicity distinction. If I had my own school, student “M” would be welcome to attend.)