Weiler on the UK Supreme Court

The first issue of the Jewish Review of Books has just published an excellent critique by Joseph Weiler of the UK Supreme Court’s decision in the Jewish Free School Case (see our earlier posts here and here). The case held that the admissions criteria of the Jewish state-supported school, denying admission to a child whose mother had undergone a non-Orthodox conversion, amounted to illegal racial discrimination under the English Race Relations Statute. The Race Relations Act makes an exception for religious discrimination generally, so that a Muslim or Christian or Sikh school can favor applicants of a particular faith. But in the case of Judaism, the Court held that its status as both religion and ethnicity meant that discrimination in favor of adherents as defined through the internal processes of the religion amounted to racial discrimination.

Of course that conception of the case is unfair to the applicant, who was religiously identified and represented a branch of the religion with a different approach to what constitutes a valid conversion. So in some sense the court was being called on to adjudicate as between competing conceptions of who is defined as a Jew.

My own initial reading of the case was through the American lens of the establishment clause. If the British government chooses to use public funds for religious schools, surely it can insist on non-discriminatory admissions criteria. But when any single religion is especially affected by the non-discrimination policy, one should perhaps look a little deeper. The gist of Weiler’s argument is that the UK Court applied a profoundly Protestant understanding of religious affiliation in considering the school’s admission criteria. The Christian idea is that salvation is available to anyone who chooses it, and so religion becomes a matter of choice. Judaism has a different self-definition, encompassing both religious and ethnic dimensions. The admissions decision in question in the Jewish Free School case applied only religious critera: as the dissent says, the child would have been admitted regardless of ethnicitiy had he undergone a religiously acceptable conversion.

Once the British state decides to use public funds for religious schools, it ought to defer to internal religious understandings of membership in the group, rather than imposing modernist and Christian ideas of religion as a free choice.
To be sure, these religious understandings are themselves internally contested, which is precisely why the Court was called on to hear the case. But should not the Supreme Court adopt a stance of staying out of such internal religious processes? That certainly has been the approach of the US Supreme Court when called on to make similar determinations.

–TG