R(E) v Governing Body of JFS
The new UK Supreme Court will begin to hear the appeal in R(E) v. Governing Body of JFS UKSC 2009/0105 today. The case will take three days. It consists in an appeal from the decision of the Court of Appeal in R(E) v. Governing Body of JFS  EWCA Civ 626. The case began with the High Court decision of Mr. Justice Munby (now Lord Justice Munby) in R(E) v. Governing Body of JFS  EWHC 1535, handed down in July of last year. JFS is a well known Jewish school in, Brent, London and is consistently recognised as one of the best performing schools in the country. The issue before the Supreme Court today is:
Whether a Jewish faith school unlawfully discriminates directly or indirectly under the Race Relations Act 1976 in giving priority in admission to the school to those children who are recognised as Jewish under Orthodox Jewish religious law by the Office of the Chief Rabbi.
The High Court found that there was no unlawful discrimination. The Court of Appeal, by contrast, found that there was. As always, I am less interested in the law than in the politics and it’s a busy day today, but there are a few observations I would like to make.
This is the case of E, who sought to have his son, M admitted to JFS. (Although the case turns on E and M, the High Court judgment further details the cases of the L and S family, who are also affected by the JFS admission policy). E was born into a Jewish family, is a member of a Conservative synagogue, and practises his faith. M also practises the faith, learns Hebrew, attends synagogue and is a member of a Jewish youth group. However, his mother – E’s former wife – was not born into a Jewish family. She converted to Judaism under the auspices of the rabbi of an independent Progressive synagogue. M was not admitted to JFS because his mother was Jewish by conversion otherwise than under Orthodox auspices. Therefore M was not halachically Jewish. This is the crux of the case.
JFS aims to admit children who are recognised as Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR). In the event of over-subscription, it will admit only children who satisfy this test. What is interesting about the test is that (a) the actual religious practice of the parents or the child is irrelevant (b) the children of mothers who converted to a non-Orthodox branch of Judaism are not considered fully Jewish in the sense required by the OCR, even though the children of non-convert Jewish mothers who are members of Reform or Liberal synagogues are. The case therefore engages important questions of the internal contestation of the boundaries of community membership, both within the JFS community and the broader group of British Jews. (For a fascinating analysis of the English courts’ engagement with Jewish identity see these articles by Prof. Didi Herman; 1 – 2 – 3 ). M, like the children of the J and S families, was denied admission to JFS in consequence of the links between school admissions and the Orthodox authorities’ policing of convert marriages. This is a case in which what Ayelet Shachar would call the demarcating function of religious family law connects with the demarcating or group membership function of school admissions and in turn with the distributive function of the state’s race relations law.The statement of Mrs. L in the High Court is testament to the sense in which recognition and distribution are tied together:
we have been fighting for justice for our family for many years now and to not be able to pursue justice is almost unbearable. The actions of the Beth Din in not accepting my Jewish status, causes me immense hurt, distress and torment on a daily basis, both to me as a practising Jew of over 20 years and to me as a mother. The only thing worse than my pain is to see the pain of my daughter.
Shachar, of course, argues in her book Multicultural Jurisdictions, that in circumstances – one would imagine that the autonomy regime for faith schools in Britain counts – where the religious group is given power to determine the bounds of group membership, that power may be used to discipline internal minorities in ways which prove unacceptable to the liberal law. That appears to be the case here – the families of converts are disciplined and are denied advantages which are granted to other members of the community. Shachar argues that the edge of that sort of power will be blunted over time as in-group members seek greater parity, within the boundaries of cultural practice, with members of the majority. In my view, however, E v. Governing Body of JFS, demonstrates that in a multicultural society, authorities within a minority group may be able to resist change quite effectively; the JFS have control over a very important resource – a successful school – in an area in which Jews constitute a very tiny minority. In this circumstance, it seems that the incentives for individuals to comply with an unshifting religious law are far greater than the incentives for the JFS to modify its practice in response to the demands of dissenters. This case encapsulates a moment in which group members seek to reach past the slow and often unpromising process of organic change and ask to deploy the law to kick-start it in a desired direction. It is a case which points to the law’s role in supporting cultural dissent.
The High Court judgment was remarkable for Mr. Justice Munby’s attempts (albeit he does perhaps rely to excess on references to the antiquity of Orthodox Judaism) to give a nuanced and respectful account of the interplay between religious obligation and civil law (See - in particular}. Prakash Shah has singled out Munby J. in his writing as an example of a judge who demonstrates an awareness of the complexities of intersecting formal and informal legal orders in a multicultural society. (See here) It is to be hoped that this attitude will not be found lacking in the members of the UK Supreme Court. Their first important ‘law and religion’ judgment will have important resonances for members of England’s faith groups.