Analysis: No reason to think a consensus is at hand

By Simon Rocker, December 23, 2009

When, two years ago, an 11-year-old boy was rejected by Europe’s largest Jewish school, no one would have foreseen the consequences: three court hearings costing hundreds of thousands of pounds, the interference of the secular authorities in the affairs of a religious minority, and the forced overhaul of entry polices which had served Jewish schools for decades.

But the roots of the JFS conflict lie outside this country: they are part of a global battle over the definition of who is a Jew which has been gradually heating up in the post-war years and may well become fiercer yet.

It has often focused on the Law of Return and who is eligible to settle in Israel as a Jew: but it is liable to flare up anywhere at any time — over who may marry whom, who may be buried where, or, as here, who may pass through the gates of a Jewish school.

Worldwide, there is a growing number of Jews who are not recognised as such by most Orthodox authorities.

Some are Progressive or Conservative converts, others the children of Jewish fathers, rather than mothers, who are included by movements, such as the American Reform or British Liberal, that recognise (though not unconditionally) patrilineal status.

In response, Orthodox rabbinical courts have felt forced to hold the line against what they see as the invidious effects of intermarriage. There has been a general movement towards setting tougher entry standards on conversion, while the few Orthodox rabbis who have called for less stringent polices on Jewish status have largely been swept aside by the broader swing to the right.

Negotiations between Orthodox and non-Orthodox to agree some common approach over who is a Jew have borne little fruit. And now in Israel, some stricter Orthodox rabbis are refusing even to accept the conversions of their more lenient colleagues.

If there has been failure to reach consensus in Israel, there is no reason to suggest why it should be more likely here. No serious move to cut a deal appears to have been made since 20 years ago when the Liberal leader Rabbi Sidney Brichto made overtures to Chief Rabbi Lord Jakobovits — to no avail. Although Rabbi Jonathan Sacks welcomed the Brichto initiative at the time, if he has done anything to follow it up since becoming Chief Rabbi, he has kept it well and truly under his black hat.

So, in one sense, the JFS court case was simply a dispute waiting to happen. No one, of course, foresaw that the 1976 Race Relations Act, which was designed to protect Jews, among others, from discrimination, could have been used to declare the entry policies of Jewish schools unlawful. But while the legislation was old, what has changed over the years is the emergence of lawyers specialising in human rights able to take a fresh look at the law.

While many in the Jewish community believe the recent case should never have reached court, and certainly not the Supreme Court, it is actually hard to see what realistic alternative there was, given the lack of any communal consensus over who is a Jew.

Once JFS decided some years ago to set rules giving priority to children determined as Jewish by the Office of the Chief Rabbi, it was bound to follow the ruling of the Chief Rabbi on who was Jewish or not. Nothing in the Chief Rabbi’s tenure has suggested he would overrule his Beth Din by insisting on a more lenient stance on such a sensitive issue.

With more applicants than places, the school could not have accepted the child of a Progressive convert without breaching its own admissions policy and therefore inviting legal complaints from children accepted as Jewish by the Chief Rabbi, but who had not found a place.

The boy at the centre of the court had therefore no option but to turn to the courts for help. Legally challenged, the United Synagogue had no option other to defend itself on such a cardinal religious principle.

It may be that a change in the law will effectively kick the Supreme Court ruling into touch and restore the right of Jewish schools to choose pupils as they used to be.

But even so, no one can be sure that the growing body of discrimination law will not once again pit Jew against Jew in court.

Last updated: 2:26pm, November 8 2010