In light of what is going on across the pond these days, it behooves us to pay attention to what happens where you fail to separate state and religion. Though to be honest, when your head of state also serves as Supreme Governor of the Church of England, such an exercise might be somewhat difficult. Britain’s Supreme Court (until recently known as the House of Lords) recently heard arguments on appeal from R (E) v. Governing Body of JFS, [2009] EWCA Civ 626, [2009] 4 All ER 375, and is expected to release a decision before the year is out. In making its decision, the Court will be determining not only the validity of the school’s entrance policies, but the point at which religion will yield to other competing social values.

Background

Britain has over 7,000 publicly financed religious schools. Under the Equality Act of 2006, such schools are allowed to give preference in busy years to applicants of the school’s own faith, using criteria determined by a designated religious authority. The Jew’s Free School (JFS), a religious Jewish school, traditionally receives far more applicants than it accepts. The school’s present policy is to give priority to children who are recognized as Jewish by the Office of the Chief Rabbi (OCR).

M is the child of a father who is Jewish by birth, and a mother who underwent the Progressive Jewish conversion process. That process is not recognized by the OCR who requires conversion take place through the Orthodox Jewish procedure. As such, since Orthodox Judaism only recognizes a child as Jewish if his mother is Jewish, and according to Orthodox Judaism the mother never properly “converted”, M was not regarded as Jewish and his application was denied.

M’s father E alleges the refusal to admit M to a school because his mother is not Jewish constitutes direct race discrimination against him, on the ground of both his and his mother’s ethnicity. JFS defends its action, stating that the criterion used to select students is purely religious and not ethnic in nature. At trial, the High Court of Justice agreed. The Court of Appeal overturned that ruling, on the basis that the admissions test was ethnic in nature and thus discriminatory. Since the test concerned the status of M’s mother rather that M’s personal religious practice, the test could not be said to be purely religious.

Comments

The court’s ruling reveals several problematic issues. To begin with, there is considerable unease with the court’s foray into the religious realm. As Lord Sacks wrote following the court’s decision:

“An English court has declared this rule racist, and since this is an essential element of Jewish law, it is in effect declaring Judaism racist. To be told now that Judaism is racist is distressing. To confuse religion and race is a mistake.”

 Under Orthodox Jewish belief, one’s religious practices are largely irrelevant to their Jewish identity. As Rabbi Yitzchak Shochet famously said, “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish”. Conversely, one can be most devout of faith, but if not born Jewish (or “properly” converted) one would not be perceived as such by the Orthodox community. Ethnicity and the Orthodox faith are inextricably intertwined, and the court’s attempt to separate ethnicity and religious practice inherently misunderstands the relationship between the two.

Be that as it may, the argument is made –not without footing– that the private religious laws must yield when there is an adverse impact on social welfare. The problem is the Court of Appeals’ conclusion that the admission criterion was an ethnic test is simply untenable. The first difficulty is understanding what ethnicity means. The Court of Appeal, when attempting to define what constitutes racial discrimination, refers to the House of Lords decision Mandla v. Dowell-Lee, [1983] 2 AC 548. In that case, Lord Fraser notes that an ethnic group is defined as a distinct community sharing certain characteristics. He goes on to state that a group is defined by shared characteristics, and membership in such a group is also open to members joining through a conversion process. Following that reasoning, the Court of Appeal concludes that (a) Jews constitute a racial group defined by ethnic origin and additionally by conversion and (b) to discriminate against a person on the ground that he or someone else is not Jewish is to discriminate on racial grounds.

Two points are relevant here. First, the court conveniently does not take notice of the following line from Mandla:

Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member.

The very issue of the case at hand is that the group (the Orthodox Jewish community) had not accepted M’s mother into the group by virtue of the wrong conversion process. Second, to discriminate on ethnic or racial grounds implies an almost immutable, or constructively immutable, characteristic that serves as the basis of the discrimination.  In contrast, if M’s mother had undergone the Orthodox conversion process, she would have been recognized as Jewish. There was nothing inherently “ethnic” in the decision; rather, it was the practice which formed the basis for inclusion in the group. The conversion process itself is an inherently religious practice, rather than ethnic.  A possible response is that focusing on the mother’s actions rather than M’s means that the criterion is not religious in nature. Yet, were JFS to deny a child admission on the grounds his or her parents were born Jewish but did not practice religiously, can it be said that the decision would be “ethnic” rather than religious? My point is solely that the OCR took issue not with identity, but with the practice of converting Progressive rather than Orthodox; as such, the issue goes to religion rather than ethnicity. In the alternative, the two are so deeply intertwined that any religious criterion is by definition discriminatory.

A further response is that, by accepting the government’s money, JFS’ admissions policy became a social policy rather than a religious policy. If a school disliked the conditions associated with funding, it would be free to operate privately and determine their own admissions policy. That being said, it is important to examine the social goals the government is advancing. The Secretary of State for Education is intervening on behalf of the respondents, JFS, to argue that a faith-based admission criterion pursues a legitimate aim. The underlying policy purpose is to add to the diversity of choice for parents, and to enable children to be educated within the State sector in accordance with the values of their faith. Since such criterion are the only way to further that purpose, finding them discriminatory would take away from this social purpose. Additionally, Parliament has implicitly endorsed this practice through the enactment of the Equality Act of 2006, despite its potentially discriminatory effects. Accordingly, the appropriate balancing of competing social interests should be a matter for Parliament to decide, rather than the courts. The faith-based admission criterion at issue, therefore, in fact supports sound social policy rather than running contrary to it.

Comparative Law

A similar case occurred during the late 1980s in the Netherlands. In the Maimonides case, the Hoge Raad (the highest civil law court) accepted that an Orthodox Jewish school could exclude a boy from a non-religious family because it was based on consistent policy directly related to the religious foundation of the school. It would seem that a “religious” but non-Jewish individual could also be excluded because it doesn’t fit within the religious foundation of the school.

In Canada, the courts have been prepared to value religious rights over certain other social policy concerns. In Dhillon v. British Columbia, [1999] B.C.H.R.T.D. No. 25, for example, the court held the religious rights of Sikhs to wear a turban trumps other safety concerns behind the helmet laws at issue. The fact that most religious education is not eligible for public funding (see Adler v. Ontario, 1996 CanLII 148 (S.C.C.)) largely prevents the issue from arising. If such an issue did arise, legislation similar to the Equality Act of 2006 would likely be held to infringe s. 15 because religion has been held to be a constructively immutable ground (as in Corbriere v. Canada, [1999] 2 S.C.R. 203.) While the Secretary of State points to an important policy objective, it is doubtful in the Canadian context whether similar legislation would constitute a minimal impairment under the proportionality test of s. 1.

Conclusion

If the newly minted Supreme Court is looking to make its mark, it has such an opportunity when it releases judgment on this case. I, for one, am curious to see which direction the Court will choose to take: whether it will sit back and largely defer to Parliament’s social policy objectives, or whether it will try to carve out the appropriate spheres religion plays in society. The clash between different religious conceptions is almost always inevitable. In Canada, we pride ourselves on a widely diverse culture that is willing to accept a broad spectrum of beliefs. In the quest to increase inclusiveness, however, we inevitably run up against religions that by definition are exclusive. By granting equality with one hand, consequently we take away autonomy with the other. Canada –as with much of the world– watches this case with bated breath.

Email the link »   

You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.