Sunday, February 07, 2010

Law Lords to JFS: You're Not So Free

There has been a fair amount of commentary regarding a decision of the Supreme Court of the United Kingdom (formerly the Lords of Appeal in Ordinary and part of the House of Lords) in a matter called R (on application of E) v. Governing Board of JFS.
The case involved the desire of a man referred to only as E to have his son, M, admitted to London's prestigious Jewish Free School. There are many more applicants than spaces in the school and it gives preference to children who are recognized as Jewish either by the rule of matrilineal descent derived from Deuteronmomy 7:3-4 ("... neither shall his daughter take on to thy son/For they shall turn thy son away from following me") or by an Orthodox conversion (i.e., one recognized by the Office of Chief Rabbi of the United Hebrew Congregation of the Commonwealth).

E is Jewish but M's mother is a former Roman Catholic whose conversion was supervised by a Reform rabbi, so was not recognized by the OCR.

M was denied admission and E sued, arguing that the preference violated the Racial Relations Act of 1976 which forbids discrimination on the basis of ethnicity. Is that what happened?

A 5-4 majority of the Justices (formerly the Law Lords) said that it was. The matrilineal test is, the majority said, a test based on ethnicity and, therefore, unlawful.

The opinion has drawn a great deal of criticism. Some of it is related to the sensitivity of a court decision that would provide fodder for the old canard that "Zionism is racism" although the Court - particularly in a concurrence by Lady Hale - went to some length to say that they were not accusing JFS of racism. This aspect was emphasized by those who see an increase in anti-semitism in the UK and its foreign policy drifting away from support of Israel. While perhaps (unintentionally) demonstrating Godwin's Law, the Telegraph chillingly paraphrased (maybe)Hermann Göring in observing that a modern liberal democracy has now announced "We decide who is a Jew."

But most of the criticism focuses on whether the Court had improperly taken upon itself to resolve a religious question. There are parallels with American constitutional practice. Putting aside statutory exemptions, our basic free exercise doctrine upholds neutral laws of general applicability even if they burden religious practice. (I should note that not all state constitutional doctrine is this forgiving and there have been both federal and state statutory protection of free exercise that call for more exacting scrutiny.)

Part of the rationale for such a rule is that it avoids the need for judicial scrutiny of every state law claimed to burden some claimed religious practice or obligation - claims that, depending on your point of view, are limited only (or either) by the human imagination or the inscrutability of God. In other words, not limited at all.

Courts generally seek to avoid examining the authenticity and legitimacy of a claimed religious practice. Although it is not the categorical prohibition that is sometimes claimed to be, the notion is that courts ought not to settle religious controversies and ought not to to be in the business of evaluating religious doctrine.

The JFS decision could be seen as consistent with that regime. The Court did not resolve controversies within Judaism about Jewish identity. It simply said that whatever test is chosen cannot be an ethnic or racial test. This undoubtedly burdens religious practice but maybe that is the price we have to pay for keeping the free exercise clause from turning into a license for unbounded claims of constitutional liberty.

That view has plenty of critics (I'm one of them) but here its application is not so easy. Was this an ethnic test? To say it is arguably ignores not only its religious provenance but it religious, rather than racial, rationale. If the rule of matrilineal descent is truly drawn from Deuteronomy, the idea seems to be a religiously based counsel against marrying outside of the faith not because of concerns for racial purity or ethnic identity, but for religious reasons - "they shall turn thy son away from following me."

That this is a religious concern is demonstrated by the fact that is has a religious exception. Thy son can take on to his daughter if his daughter undergoes a proper conversion. What constitutes a proper conversion seems to be a matter of religious controversy and doctrine. It suffices to say, that in the eyes of the JFS, the former Mrs. E did not have one. Given the notion - traditionally accepted by Christians as well as Jews - that God's covenant with the Jews was with the Jewish nation rather than individuals who may or may not choose to accept it, the need for some definition of identity seems obvious.

I understand that someone may spin a hypothetical regarding some Aryan religion used to exclude nonwhites from a school. That's what makes this a hard case. It's what may illustrate the way in which the idea that religious controversies and precepts ought to be entirely free from judicial scrutiny is limited.

But was this a hard case that made bad law? Or was bad law avoided with an unsavory result?

Cross posted at Marquette University Law School Faculty Blog. (You can find a link to the decision there.)

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