The Supreme Court has given judgment today in this case about the admissions policy of JFS school, a state secondary school that has been educating Jewish children in London since 1732. M’s father, E wanted M to go to the school: but he wasn’t given a place because according to Orthodox Jewish principles, M is not recognised as Jewish. That’s because his mother was not herself Jewish according to those rules (she is or was Italian, and was originally a Catholic). She converted to Judaism – which would have been okay had she converted according to the process recognised by the Chief Rabbi. But she converted under the auspices of a non-Orthodox synagogue. That wasn’t good enough for JFS; and so E went to law – claiming race discrimination, on the basis that his son was turned down because of his mother’s non-Jewish ethnic origins. It’s not about religious discrimination because faith schools have special protection under that law.
Having just invented the term religitigation to cover legal cases about religion, it’s good to come across an example in which both sides seem to have a reasonable case. I should say that, as a very severely lapsed Catholic, I have very little knowledge of Orthodox Judaism as opposed to Reform or Masorti Judaism (the type of Judaism E and his family follow). Temperamentally, being an atheist, I tend to be friendlier to “reform” anything than I am to “orthodox” anything. I certainly have no views on who is a Jew, or what sort of Jew should be allowed into Jewish schools. I’m not even sure how happy I am that there are faith schools, though I’m pretty clear I’m against allowing them to grow much in number. But I can certainly understand E’s frustration about his family not being regarded as sufficiently Jewish for the school. Equally, I have some sympathy with the school’s desire to stick by the Orthodox approach I understand it’s been applying for many years.
The Court has split 5-4 on the main issue: the majority holds that the admissions policy amounts to direct discrimination on racial grounds. As Lady Hale puts it (para. 66):
Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic. The fact that the Office of the Chief Rabbi would have over-looked his mother’s Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact. M was rejected, not because of who he is, but because of who his mother is. That in itself is not enough. If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity. But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected. This was because of his lack of descent from a particular ethnic group.
Lord Mance (para. 86) says:
A test of membership of a religion that focuses on descent from a particular people is a test based on ethnic origins. Whether matrilineal descent was originally chosen because it was an easy and secure way of identifying ancestry or because some other special significance was attached to women’s role is not relevant. Other tests identifying a people by drawing on descent or ancestry can of course exist, for example, a test based on patrilineal origins, or on the origins of both parents. Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line. But all such tests look, in one way or another, at ethnic origins…. This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion. It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the school’s view, to make the child Jewish.
Or as Lord Kerr puts it (para. 117)
The basis for the decision, therefore, or the grounds on which it was taken, was M’s lack of Jewishness. What motivated the school to approach the question of admission in this way was, no doubt, its desire to attract students who were recognised as Jewish by OCR and that may properly be characterised as a religious aspiration but I am firmly of the view that the basis that underlay it (in other words, the grounds on which it was taken) was that M did not have the necessary matrilineal connection in his ethnic origin.
Here’s Lord Clarke (para. 148):
As I see it, once it is accepted (as Lord Brown does) that the reason M is not a member of the Jewish religion is that his forbears in the matrilineal line were not Orthodox Jews and that, in that sense his less favourable treatment is determined by his descent, it follows that he is discriminated against on ethnic grounds. It makes no difference whether the reason M is not acceptable is that neither his mother nor anyone in his matrilineal line was born Jewish or that his mother was not converted to Orthodox Judaism. The question is, in my opinion, not that espoused by Lord Rodger, but whether it is discrimination on ethnic grounds to discriminate against all those who are not descended from Jewish women. In my opinion it is.
All of these rulings are seductive in the reading – Lord Phillips’s is the only one of the majority which I would pick out as, in my view, not clearly setting out the reasoning on which his conclusions was based (as opposed to his reasons for rejecting JFS’s arguments). They each deploy legislation and precedent fairly persuasively and make a pretty good case for their conclusion.
But having read Lord Rodger’s judgment, I have to say I see great force in his point (para. 226) that
The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.
The consequences he means are that Jewish schools will be prohibited by law from selecting their pupils according to their own religious principles. His judgment is by far the most impressive piece of reasoning of any of the Justices’, and has a clarity and force that is sharpened by its trenchancy. As he explains at para. 228
Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices. It was her resulting non-Jewish religious status in the Chief Rabbi’s eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission. The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.
and at para. 230
Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision. The governors were simply asked to consider admitting him as the son of a Jewish mother. They declined to do so because his mother had not converted under Orthodox auspices. It was her non-Orthodox conversion that was crucial. In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers’ conversions – a religious, not a racial, ground.
I think what makes his approach so convincing it that is focuses so clearly on first principles: in comparison the majority’s approach seems clouded by the intellectual frameworks they found in earlier cases – the extent to which the motive underlying discrimination could be distinguished from its grounds, for instance, which has perhaps led them to discount what can be characterised as JFS’s motivations as irrelevant.
Lord Brown agrees with Lord Rodger.
All the Justices agree there was at least indirect discrimination here (i.e. that the Orthodox Jewish rules are on their face racially neutral, but put children of some ethnic origins at a disadvantage). On the question whether that was unlawful or whether JFS had justified it, however, there was a slightly different outcome: Lords Hope and Walker, while siding with the minority on the direct discrimination point, both take the view that JFS had not justified the use of the Orthodox rules.
This I find very difficult to understand: in my view Lords Hope and Walker have erred by importing a much too subjective element into the concept of justification. The question, for them, seems to be whether JFS thought enough about its policy and whether it gave enough consideration to, and made enough compromises because of, its effect on M. That, though, is not the point. The point, surely, is whether applying the Orthodox Jewish rules has a legitimate aim and is a proportionate way of achieving that aim. Again, Lord Rodger seems to me to have this right (para. 233):
The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate. And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense. That is plainly why the School’s oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi. I cannot see how a court could hold that this policy is a disproportionate means of achieving the School’s legitimate aim.
Lord Brown agrees, citing (para. 255) Munby J at first instance:
Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS’s aims and objectives; on the contrary it would produce a different school ethos. If JFS’s existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate – indeed, as it seems to me, essential – to achieve those aims . . . JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.
Incidentally, I found it very helpful that the Court has decided to set out the majority opinions first, followed by the minority. It may not always be possible to adopt such a clear structure where a case involves a number of issues on which Justices take a variety of views. But where possible, this very much helps understanding, and is an excellent innovation.
You may be interested in Melanie Phillips’s comments – her views are similar to mine, though more vehement and more focused on what she sees as the arrogance and blundering of the judges. Fair points, as is her reminder of Lord Phillips’s absurd, almost surreal defence of Rowan Williams’s views on sharia law not all that long ago. Odd that he can see JFS’s policies as in effect racist, but sharia family law as not sexist. He, though, is President of the Supreme Court, unlike Melanie Phillips (which Phillips would you prefer?) and me.
There’s a discussion at Harry’s Place, too.
This case embodies the arguments for a US-style separation of church and state. Judges are not qualified to resolve essentially religious questions such as this one. And religious authorities who wish to discriminate on the basis of their religious traditions should not expect the taxpayer to subsidize them to do so.
(As an aside, I am about to fly to the UK to visit my brother and his wife, who are busily working out the minimum church attendance they must endure to get their children into the local CofE primary school).
Would that really be the solution? This case doesn’t arise because JFS is publicly funded; I think the issues would be the same even if it were entirely private. And I doubt that in the States, private religious institutions can freely discriminate on racial grounds, can they? Say, by barring black people from entering a church? That would shock me.
As for your other point – I dare say London’s synagogues may be fuller as a result of JFS’s new admissions policy.
No. In the US private institutions are generally free to do what they want. For example Bob Jones University used to ban interracial dating. By contrast if you take any public money any religious advocacy or discrimination, eg school prayer, is strictly forbidden.
“The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic” – per Lord Rodger.
Lord Rodger did indeed get to the essence of this. M was not discriminated against on “ethnic” grounds. JFS applied a purely religious test. Common sense alone – (if one is allowed to use that term) – would lead to that conclusion. As a purely religious test, the Jewish authorities have to be the sole judge.
My only quibble with the extract from Lord Rodger’s judgment would be that he said – “… a woman whose ethnic origins were Italian and Roman Catholic.” Surely, being Italian would be ethnicity: being RC would be religion.
It is precisely this type of case which will lead inexorably to a demand for more in depth examination of the viewpoints / opinions of Justices of the Supreme Court as occurs in the USA. People will want to know just “what makes them tick.”
DW – I know they used to ban interracial dating. They used not to admit black students at all. But they do now.
http://en.wikipedia.org/wiki/Bob_Jones_University#Racial
And Wikipedia links to this case
http://en.wikipedia.org/wiki/Runyon_v._McCrary
which it says held that federal law prohibited private schools from discriminating on the basis of race.
By all means explain why that’s wrong – but I’d be truly astonished if private US colleges all just happen not to bar black students any more because of changing attitudes.
Obiter, I agree with everything you say, I think.
It’s always worth repeating that Lord Phillips thought it “not radical” to suggest some family disputes here be settled on sharia law principles. Incredible that a man so sensitive to race discrimination should be so blind to sexism. Had I been an MP on a confirmation hearing, I’d have voted not to confirm him as President because of that opinion alone. I’m happy for him to be a conservative, a smoker, a socialist, a Jew, gay, a Buddhist, a vegan, a UKIP supporter, a transvestite, a former huntsman or whatever. I’m happy for him to watch the X Factor. But that was outrageous.
I am afraid that I think that the judgment of Lord Rodger was the worst of the nine, especially paragraph 228 cited above. This is not a case where you can look at discrimination law afresh and try to reformulate it in order to get the ‘right’ result. However uncomfortable it is to do so, it is necessary to apply established principles and see what outcome arises from doing so.
Paragraph 228 shows two fundamental misunderstandings of the law. It assumes that discrimination must either be on the grounds of the religious belief of the discriminator or on the grounds of race of the claimant and that it cannot be both. If this were correct, Lillian Ladele would not discriminate against gay couples by refusing to marry them. This leads Lord Rodger to apply the wrong comparator and, in effect, to say that the court should try to find a comparator who wouid result in there being no discrimination, in effect putting the cart before the horse. If this had succeeded, it would set back the law by thirty years and I am afraid that the interests of one school do not justify allowing employers to use a defence of having a benign motive.
The majority did not apply a subjective test to justification – they applied the standard test. The burden of justification lies upon the discriminator and that means they need to be able to lead evidence to show that their actions are proportionate. They will not be able to show that option A is more proportionate that option B if they have not even investiagted the merits of option B and it is not the role of the court to do that for them.
The correct approach, as Baroness Hale notes, is for Parliament to create an exception if it wants to do so. It seems frankly absurd for Ed Balls to appear as a witness saying that the law should be distorted to accomodate a very hard case when his own government, still with a solid majority, is currently pushing legislation through Parliament which could very easily be amended.
Contrary to what Melanie Phillips says, this is a case where the Supreme Court has resisted the temptation to make a decision on political grounds.
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I also want to say something about the sharia debate to the extent that it is relevent here, which is not much. Lord Phillips would undoubtedly agree that, if an element of sharia law were introduced, it should be subject to the supremacy of the English law, including discrimination and human rights law. In any event, he was speaking extra-judicially about reform which he thought should be made to the law, which is a fundamentally different task to applying the law as it is. I suspect that, had he interpreted the law as he wanted to do so in this case, the outcome would have been quite different but it is to his great credit that he took his judicial responsibilities seriously.
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An excellent defence of the majority, James: I’m struck by the comparison with what Lillian Ladele was doing. It certainly does make me think again. Do come back, there is potential to make me change my mind (as always, in fact). I try to do truth-seeking here, in as much as law allows for that.
Is it quite right, though? First, wouldn’t the real comparison with this have been had Ladele been discriminating against non-Christians somehow? That would arguably have discriminated indirectly against Japanese people or Arabs.
And isn’t what JFS were doing much more like, say, discriminating on grounds of marriage used to be, in the old days before CPs? Pension schemes, say, used routinely to offer benefits to married employees and not to single ones. Indirect discrimination on grounds of sexual orientation, surely (not that there was law against that then), before CPs. The rule was not based on the discriminatory wish of the scheme, but was on grounds of the sexuality of anyone negatively affected. But would you call that direct discrimination on grounds of sexuality? The majority did that here, I think.
On proportionality, I accept what you say – I can’t tell what evidence JFS brought. But it worries me nonetheless. As I understand it JFS’s case was that there was no alternative to achieve what they wanted. I can see the force of that, in context. Perhaps my approach does come from insufficient expertise in race discrimination law, but I, like Lord Rodger, feel “something has gone wrong” if that can never work as a justification, which I think follows from what the majority say.
For instance, imagine Radio Isles Gaelic broadcasts only in Gaelic as spoken in the Western Isles, and their purpose is to preserve that. Their rules are you have to be either a born Islander or have completed a course at, I don’t know, Stornoway College – because after many years thought they believe only there can you learn true Island Gaelic, and that’s the only way of preserving it and not diluting it. Are you saying that isn’t good enough? If so, I think you must either be saying you know better than they do about Gaelic, or that their broadcast standards must be diluted, contrary to their aims, because those aims are per se racially discriminatory.
What do they have to do to justify the policy? (a) Go through a formal process of showing you what thought they’ve put in before rejecting alternatives? (b) satisfy you, the court, that the alternatives aren’t good enough? [I think what you’re saying; I’m setting out the alternatives I hope for clarity]; or (c) actually adopt an alternative policy?
I think the majority’s approach is quite close to (c) – or perhaps in fact they have gone backwards in the analysis and in effect concluded there was no legitimate aim in the first place because they couldn’t fit their approach to proportionality on to it. If they thought JFS’s aim was legitimate, how could they not be satisfied on approaches (a) and (b)? They really have gone too rapidly to (c), haven’t they, thinking JFS failed on (a) and (b) but without (as I think Munby J, Lord Rodger and Lord Brown did) properly addressing the relationship between aim and means of achieving it.
On sharia, James – I accept he was speaking extra-judicially. I’m not for a moment accusing him of bending the law to any prejudice. I don’t think any of the judges did that. I think the legal debate on this case is a genuine one, hence the division in the court. I take comfort from that – I know even if you disagree with me, my view isn’t without respectable support.
But the idea that you can have disputes settled according to sharia family law – and that is clearly the proposition Rowan Williams put and that Lord Phillips defended – that’s non-discriminatory because it’s subject to ordinary law… It’s impossible. If it’s non-discriminatory, then it’s not sharia. I really am staggered that Lord Phillips can’t see that; and I really do think, even extra judicially, that it’s shocking that a judge on the Supreme Court of a liberal democracy could have defended sharia family law in this country. I don’t say it’s relevant, just that it’s worth reminding the world (or my readers, not necessarily the same thing) about. And curious that he’s eagle-eyed on race discrimination and blind to the most crass sex discrimination. I’m not implying bias.
Actually I think sharia might be your best argument against me on JFS. If a sharia council gave a man the house and the kids because of sharia rules, would it be discriminating on religious grounds, or on grounds of sex? You might have me bang to rights on that one.
Actually, I think the pension schemes probably were discriminating on the grounds of sexual orientation. It is no coincidence that the Civil Partnership Act came in at around the same time as the Sexual Orientation Regulations. Some gay rights campaigners say the law on marriage is still discriminatory.
The Gaelic example is quite a nice one to maybe simplify the issues a bit. The problem with it is not the requirement to learn Gaelic or even to learn it at a particular institution. The problem is that Pedro Gonzalez, who was born in Stornoway but speaks only Spanish, would not be required to meet this requirement. He gets an advantage purely because of his place of birth.
This is not like discrimination against non-Christians because Christianity is a proselytising religion which has no racial requirment for membership but, although Judaism allows converts, it stills recognises ethnically Jewish people as members even if they never attend synagogue and eat bacon sandwiches. It cannot be that any advantage that they get as a result of their background is not discrimination just because the Bible sanctions it.
As for justification, (b) is correct although (a) will nearly always be the best evidence for (b). It is possible to justify after the fact but this means, in effect, going through process (a) as part of the process of litigation itself. I agree with you that this is, in some ways, the weakest part of the decision but, if the Supreme Court has erred, it has done so by requiring (a) to be done before rather than after the fact. Undoubtedly, there was theological evidence before the Supreme Court but the Justices may well be annoyed, as I am, that JFS blithely failed to consider the possibility of discrimination. As I think it is direct discrimination anyway, this does not really matter.
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Carl,
‘His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices.’
You obviously do not appreciate that this would be, for all practical purposes, impossible.
As I said, James, I’m no expert on Judaism, let alone conversion to Judaism. So I’m happy to assume you’re right. But what makes you think the practical impossibility of the necessary type of conversion make a legal difference?
After all, the England football team is legal in spite of EU free movement law and the ban in EU law on nationality discrimination. Contracts to play for the team are only available to English players, or those who become English according to the FA’s rules. But it’s practically impossible for any player to become English in time for England’s next game. Does that make England discriminatory or unlawful?
Carl – I agree with you on this one. One of the difficulties about the case and the way that it has been reported is that the focus has been on the recognition by the Chief Rabbi of various types of conversion. This is partly because this is what the battle which is being fought within Judaism is really about, not about race discrimination per se. However, as Lord Phillips indicates in his judgment, a requirement to convert, or indeed to attend an Orthodox synagogue, which requires conversion, would not be discriminatory if an equally onerous requirement were applied to halachically Jewish people. This means that it would be lawful for the school to have an policy which does not allow entry to anyone who is not Jewish by Orthodox criteria, so long as it also excludes those who qualify on ethnicity alone. Interestingly, however, the school has introduced a much softer policy instead. It seems that allowing people who are ethnically Jewish but not religiously Jewish to attend is more important to it than excluding non-Orthdox Jews.
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