Judges ruling on issues of faith

In a remarkable and somewhat unexpected decision the United Kingdom Supreme Court ruled that a Jewish school practiced racial discrimination by excluding a child who was not Jewish under orthodox practice. The case itself, see below, is of far greater importance than whether or not a child with a Jewish father can go to a Jewish day school.

The real importance is that a Court, and a Court that Canadian Courts have great respect for, decided that anti-discrimination law can override a religious decision. Presumably the same reasoning would allow for a complaint against a Christian religious group that would not, say, allow women to study for the priesthood. Perhaps it would allow a Court to overrule an Imam's decision on Sharia law?

Perhaps I read too much into the decision. Canada has a Charter that guarantees religious freedom. That said, religious freedom is a delicate thing, especially for minority faiths. (And in the United Kingdom Christianity is getting close to that status). And in truth, do we want judges making religious decisions?

Anyway, chicken little squawking aside, here's a clip from the Guardian:

A distinguished church lawyer asks what last week's Supreme Court defeat for the Chief Rabbi means for faith schools

Mark Hill
guardian.co.uk, Monday 21 December 2009 11.00 GMT
What did the Supreme Court decide in the case of the JFS? At issue were the criteria adopted by Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR) in conferring the status of a Jew. A child will be a Jew if at the time of his birth his mother was a Jew or if she has converted to Judaism in a manner which satisfies requirements prescribed by the OCR. The applicant, whilst not an Orthodox Jew for the purposes of the OCR, practised Masorti Judaism and was recognised as Jewish by Reform and Masorti synagogues. However his mother was Italian and had formerly been Catholic.

The opinions of the majority, led by Lord Phillips, the President of the recently created Supreme Court, adopt a literal analysis of the Race Relations Act 1976, which outlaws discrimination on "racial grounds". This is defined by reference to "colour, race, nationality or ethnic or national origins". A policy which directly favours one racial group will constitute discrimination: the law provides no defence of justification. Motive does not matter. Selection on the sole basis of genetic descent by the maternal line from a woman who is Jewish is, so Lord Phillips found, direct racial discrimination, irrespective of any overlying religious reasoning. Thus the JFS committed a statutory tort by selecting prospective pupils by reference to their "ethnic origins".

As Lady Hale remarked, "if the criterion the [Chief Rabbi] applied was … in reality ethnicity-based, it matters not whether he was adopting it because of a sincerely held religious belief" [para 65]. The child was rejected, so she said, not because of who he is, but because of who his mother is: his ethnic origins, not his religious beliefs. She suggests that the rigidity of discrimination law might be relaxed to permit benign justification on genuine religious grounds. The Equality Bill currently before Parliament would be a vehicle for this.

The five majority judgments, though differently articulated, say nothing more than this: no matter how understandable the religious justification, if the effect of an admission policy is to disadvantage an individual on the basis of his or her ethnic origins, this amounts to racial discrimination which is unlawful. The four minority judgments, are illuminating, not least because of an equally sharp difference of opinion between them on a subsidiary matter. Lord Hope (Deputy President) and Lord Walker, whilst rejecting the view of the majority on direct discrimination, make a positive finding adverse to the JFS on indirect discrimination. Lord Rodger and Lord Brown, on the other hand, found in favour of the school on the issue of both direct and indirect discrimination.

The competing analyses are as follows. Lord Hope recognised the right of the OCR to define Jewish identity in the way it does as a matter of Jewish religious law: "to say [its] ground was a racial one is to confuse the effect of the treatment with the ground itself" [para 201]. The OCR, he held, concentrated on religion to the total exclusion of ethnicity. Lord Rodger was of the same opinion and put it with disarming clarity, saying that the applicant's mother

could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices. It was her resulting non-Jewish religious status in the Chief Rabbi's eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that [her son] was not considered for admission.
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