How is it that the President of Britain's new Supreme Court has been quoting the Book of Deuteronomy in reaching an important judgement?
I have been involved with equality law in Britain – law which seeks to restrain unfair discrimination - for example by those who control the allocation of employment, housing, education, and other benefits and services since I was appointed legal adviser to the Race Relations Board in 1965.
Since then we have had a lot of piecemeal legislation – hopefully soon to be consolidated. It has extended the law against discrimination into new areas: gender, disability, sexual orientation, and, recently, religion.
Many major problems of interpretation have been resolved in the courts but new and unforeseen ones always continue to arise. Issues of race remain the most intractable form of discrimination and the recent extension of the scope of equality law to religious discrimination has exposed this. It raises very important and interesting larger questions as the secular processes of the state collide with religious practise. These issues can be intensely divisive in our increasingly pluralistic society.
The recent Jewish Free School (JFS) case, one of the first to be decided by the Supreme Court in December 2009, exemplifies many of these issues.
In 2006 discrimination on religious grounds was prohibited by the Equality Act. But faith schools were granted an exemption: in selecting their pupils they were allowed to prefer those of the faith adopted by the school. What the exemption did not permit was discrimination on other prohibited grounds.
JFS is of course a Jewish school, entitled as a result of the exemption to prefer children of the Jewish faith in its highly competitive selection process. A boy's application was rejected on the ground that he was not a member of the Jewish faith according to the criterion laid down by the school. On the face of it this was surprising. The boy and both his father and mother actively practised the Jewish faith. The father was of Jewish descent and the mother had converted to Judaism . The problem was that the school’s criterion of “Jewishness” - the orthodox one adopted by the Chief Rabbi - required descent from a mother who was herself Jewish by descent or who had been converted under the auspices of the orthodox synagogue. The mother of the boy in the case had been converted in a non-orthodox synagogue.
The irony of the situation was that the boy’s exclusion was not an issue of faith at all. For the school acknowledged that any child who satisfied the test of descent from a Jewish born (or acceptably converted) mother would qualify, even if a practising Catholic or Muslim, or indeed an adherent of one of the non-orthodox synagogues, the Liberal, Reform, or Masorti.
But the criterion of descent from a Jewish mother falls squarely within the scope of the Race Relations Act 1976. Section 17 of the Act makes it unlawful for a maintained school (of which JFS was one) “to discriminate – on the grounds of colour, race, nationality, or ethnic or national origins - against a person in the terms on which it offers to admit him to the establishment as a pupil.” So the boy's father challenged the exclusion by seeking judicial review.
The matrilinear test of Jewishness is clearly one based on race or ethnic origins. Jews have always rightly claimed the protection of the Race Relations Act and to argue, as the school and its supporters felt driven to do, that Jewish descent was outside the statutory definition of racial grounds is to offer a welcome gift to the British National Party.
The reluctance of the school and the authorities of the orthodox Jewish community to acknowledge the anomaly of the racial or ethnic character of their test of membership is hardly surprising. They can claim that it has been part of the Jewish heritage since biblical times. Indeed, Lord Phillips of Worth Matravers, who gave the main judgement that dismissed the school’s appeal, identified the origin of the test in the seventh chapter of the book of Deuteronomy. There, Moses instructs the people of Israel not to intermarry with the children of other nations then occupying the promised land. “for they will turn away thy son from following me, that they may serve other gods:so will the anger of the Lord be kindled against you, and destroy thee suddenly.”
It is a very good judgement. You can read it here in full (pdf).
Lord Phillips explains why at first he was minded to find for the JFS and why he was led to change his mind. In doing so he has insisted on behalf of our society that faith must be defined in terms of faith, when claims are being made on the public purse, and not in terms of racial descent irrespective of actual belief.
It is profoundly paradoxical that this notion of preserving racial exclusivity has survived. It seems primitive and out of touch with modern reality. But religious freedom is also a human right protected by the European Convention and the Human Rights Act. Of the 13 judges who considered the case first in the High Court, then the Court of Appeal, and finally the Supreme Court, 10 concluded that the school had violated the Race Relations Act. (The remaining judges sought to maintain that the manifestly racially discriminatory impact of the school’s policy on those not of Jewish descent was in some way insulated from the Race Relations Act because it was an aspect of religious belief.)
Anti-discrimination law impacts on the public sphere not the private. JFS is a state-funded school and it is right to subject it to the requirements of the Race Relations Act. The case aroused a great deal of emotion. Even the Chief Rabbi made the exaggerated claim that the courts were usurping the prerogative of the religious authorities to determine the eligibility of their members. He failed to distinguish between the private and self-contained area of a religious community and how a faith school may act in the public arena. The judges were only concerned, as they made clear, with the public sphere of school admission.
Where religious freedom collides with other freedoms, such as the right to equal treatment, a balance may need to be struck. The principles at stake in the JFS case are likely to continue to reverberate. The Catholic Church, for example, is allowed exceptionally to exclude homosexuals when it employs priests. But should it be allowed to discriminate in other appointmants? Should we allow polygamy or female circumcision for those who treat them as issues of faith? Does religious freedom prevent a school from denying its teachers the right to wear the niqab or burka while teaching? Within the private sphere, a high degree of tolerance may be acceptable. In the public, religious bodies must abide by a general law that upholds the fundamental right to equal treatment.