The Jews' Free School Case

Commentary by Dr. Gerhard Falk



Who is a Jew?  A British Court Decides


     For one hundred years the American Jewish community has been unable to decide who is a Jew. Now a British court has done so and has ruled that a Jew is someone who participates in the observance of the Jewish religion.

      This decision would not surprise anyone who did not know that orthodoxy requires that anyone who has a Jewish mother is a Jew, no matter what the subject's religious beliefs or practices. According to that opinion, a person who observes all Jewish rituals and who eats only “kosher” food and attends synagogue services every day is still not a Jew if his mother is not Jewish. Conversely, that view holds that someone who has a Jewish mother is a Jew even if he never attended any Jewish religious services, knows nothing of Judaism, and is in fact a believing member of another religion. In short, a Catholic who practices Catholicism is a Jew if his mother if Jewish.

     Prior to the great Jewish migration from eastern Europe to America after 1891, the issue of “who is a Jew” was hardly discussed. Everyone knew that a Jew was anyone so persecuted in Europe, as well as all those eleven million who lived in ghettos or small towns wearing black clothes, skullcaps on their heads and tzitzis protruding from their coats. All spoke Yiddish and lived in small villages in the Russian empire. Since marriage to non-Jews hardly existed, Jews had Jewish mothers, so that the issue of “who is a Jew” did not arise.

     During the century now passed, however, millions of Jews came to the United States, where no definition of who is a Jew was agreed on by our numerous Jewish denominations. There are the Chassidim and the orthodox, the conservatives, the reconstructionists, and the reform. There are also a number other denominations. Also, among all of these, no agreement has been formed to legitimize the marriage of a Jew to a non-Jew.

     Because our intermarriage rate is better than 52%, we have a number of converts who became Jewish because they married a Jew. Conversions are undertaken by rabbis in all of our denominations. Because orthodox, or “Torah true”, Jews will not recognize conversions undertaken by rabbis not orthodox, women so converted are regarded as not Jewish, so that their children are also viewed as not Jewish.

     In London, England, a court was called upon to decide the legitimacy of an admission policy of a Jewish high school. The case deals with the application of a 12-year-old boy to the Jews’ Free School, a school founded in 1732. The school has 1,900 students but gets many more applications than it accepts. This school is one of 7,000 British religious schools  financed by the government. These schools are entitled to accept only students of their own faith. Therefore, the JFS, run by orthodox rabbis, rejected the application of the 12-year-old on the grounds that his mother is not Jewish because she was converted by what the British call a “liberal” rabbi.

     The family took the school to court. The lower court ruled for the school but the Court of Appeals called the exclusion of the applicant discriminatory under British laws prohibiting ethnic or racial discrimination. The outcome of this ruling is that Jewish practice, not maternity, must be viewed as the criterion of Jewish affinity in Britain. This contradicts orthodox theology, which holds that observance is no test of Jewishness. All that matters according to orthodoxy is the mother. Having a ham sandwich on Yom Kippur doesn’t make one less Jewish.

     The orthodox definition of who is Jewish excludes forty percent of British Jews. This is also true in the United States, although we have no state funded religious schools, so that the British ruling does not affect us.

     The school is appealing to the British supreme court. Meanwhile the ruling has divided the British Jewish community in an angry dispute resulting from the interference of government in religion. For us, this is of no consequence. The separation of “church and state” protects us against such rulings and insures that we remain the land of the free, whether brave or not.

     Let us give thanks to our third president, Thomas Jefferson, who saw it coming and prevented it by including religious freedom in the first amendment of our Constitution. Let us also be glad we are not in Europe. Not only must the 2 million European Jews deal with the old European hatreds every day, they are even subject to government interference in their religious life. So thank your grandparents for having enough sense to come here and leave that bloody continent.

Shalom u’vracha.

Dr. Gerhard Falk is the author of numerous publications, including Women & Social Change in America (2009).

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