The Jewish Free School: a case that should concern all secularists

By Mazin Zeki

The recently reported court case involving the Jewish Free School (JFS) may not be familiar to readers but has very serious implications for all secularists. The following doesn’t purport to be an authoritative statement of the law.

The Court of Appeal found for the appellants and found that JFS had acted unlawfully by excluding a child from enrolment and had discriminated racially. It has created huge controversy within the Jewish community and appeals are likely to go to the House of Lords and beyond.

The case turned on whether the child in question was Jewish. It is generally recognised that a person is Jewish if his or her mother is Jewish. The mother in this case (who actually taught at the school) had converted to Judaism and regarded herself as Jewish. But her conversion had not been recognised by the Office of the Chief Rabbi and therefore also was not recognised by the school.

The problem arose from the landmark case of Mandla v Dowell-Lee in 1983 , which extended protection of the Race Relations Acts to religious groups which were also additionally defined by ethnicity, namely Jews and Sikhs. The Court of Appeal cited ‘Mandla’ in their judgment.

‘Mandla’ has allowed a number of exemptions on the basis of case law and not necessarily on the basis of what Parliament may have intended. Parliament’s precise intention is of considerable importance in this case.

The Race Relations Act did not make all racial discrimination unlawful but set out the categories where it was unlawful. It is essentially unlawful where less favourable treatment is based on colour, nationality, ethnicity, origin, language, etc but not religion. The alleged discrimination in this case is not on any such grounds but on the process and status of conversion to a faith. On which subject the Act is of course silent.

It could be argued with some force that Parliament could not have intended that the law should intervene or have an opinion in recognising a religious conversion. Secularists support the separation of religion from the state as a core belief and are now faced with the state or the courts intervening in what is essentially a dispute within a religion.

Jewish groups were consulted before the RRA was passed. Indeed the Mandla case referred to what Parliament ‘may have intended’. What the CA judgment creates is legal intervention in validating a conversion in which the law should have no role.

Secularists should be thoroughly alarmed at this development. The judgment reflects a set of serious contradictions with potentially far-reaching effects. The Chief Rabbi has stated that the judgment has ‘branded racist’ (sic) the Jewish faith. This to put it mildly is a gross distortion. The Jewish faith is not being ‘branded racist’ (sic) but the decision based on the process of conversion was viewed as anomalous by the court.

The school is set to appeal to House of Lords and beyond. But whatever the result it will leave the law in deep confusion with very serious implications for all. There is confusion here between race and conversion and the alleged acquisition of racial characteristics by non-inherited means.

‘Mandla’ deepened and confused the issue by claiming that ethnicity can be acquired by descent and ‘additionally by conversion’ (sic). But descent cannot be acquired by conversion or additionally or in any other way except by inheritance i.e. descent itself. Even where a faith is largely or wholly overlapping with an ethnicity, it does not follow that an individual of that faith can acquire that ethnicity.

Jews are found in a very wide variety of ethnic and ‘racial’ groups. They can belong to any of these but cannot acquire it by conversion. One cannot convert to an ethnicity. Racial differences are a fraught issue. Such differences are claimed by the very same people who deny that ‘race’ exists

This year we are commemorating the birth and magnum opus of Charles Darwin. Before Darwin it was the accepted wisdom, that of Lamarck, that acquired characteristics can be inherited. All genetic characteristics are inherited and will vary according to parental inheritance except for identical twins. This was the crucial issue on which the Lysenko affair was based.

The Soviet obsession with pretended scientific socialism subverted science and insisted that ‘Morgan-Mendelism’ was not consistent with the scientific basis of dialectical materialism – the official ideology of the Communist Party of the Soviet Union. This travesty of science was supported by many left-wingers in the West for a long period and was an episode which seriously discredited the Left as well as damaging science.

Categories which claim to be scientific and rational cannot be subject to ideological demands. Science must have primacy. That means there has to be an objective basis for all claims related to identity. This case can be traced very clearly to the absurdities of multiculturalism, itself perhaps a form of Lysenkoism. Unfortunately many secularists unwisely supported it in the past.

It is a huge subject but the current discourse and ideology of multiculturalism has always claimed a special transcendent status for identity including self-defined, invented, protean and sometimes bogus identities which are not properly defined and may have no objective basis. Ethnicity can now therefore mean anything. And a number of claimed identities are based on nothing more than wishful thinking. It has now led to the seeming legal recognition of the conflation between faith and ethnicity which is itself undefined.

This is a very worrying judgment. The problem is that an appeal which may reverse or uphold the judgment will not resolve the basic contradictions involved. It may also contradict another recent case, that of ‘Bahl v Law Society’ which proclaimed the need for an objective basis for any claim for racial discrimination. The Court of Appeal judgment does not explicitly state this but implies that acquired characteristics can be inherited.

Acquired characteristics (e.g. knowledge) cannot be inherited except in a very narrow, comparatively temporary and non-genetic sense. They cannot be traced back or be the basis of descent. This is a genetic fact and cannot be wished away on the basis of identity or to meet the needs of vocal identity groups. In addition, the position that ethnicity can be ‘acquired by conversion’ is illogical and possibly absurd.

‘Mandla’ started the process of conflation between faith and ethnicity which has not been sufficiently challenged by secularists for reasons which are not entirely logical but are familiar. It is this conflation which is damaging the social fabric. Who is or is not a Jew is a matter of dispute within the Jewish community. Almost all the protagonists — most of the lawyers and one judge — was Jewish.

The state should have no role in determining such matters. But if it does then it must be on a wholly objective basis. Whatever the result of the case it will leave the law in a very anomalous state. Some are suggesting a clause in the Equality Bill currently before Parliament to create an exemption which would make such faith-cum-ethnic discrimination lawful. If this clause were to be inserted it will make the law unworkable and create further conflict within and between faiths as well as in wider society.

Ethnic groups currently recognised in the increasingly confused categorisation of ethnicity include Jews, Irish and Gypsies. The term ‘BME’ (British Minority Ethnic), like the term ‘black’, can cover any ethnic group.

The case also raises other issues. What would happen to an individual who de-converts or renounces a faith into which they are born or to which they have converted? What if different family members convert to different faiths or beliefs? Does that change their ethnic identity or not? And how is this decided? And who decides? And does it give religious bodies any decision-making powers in defining who belongs to what ethnic group? According to this judgment it clearly does. Even a secular Jew could have his or her ethnic identity decided by the chief rabbi. The truth is that all these confusions and anomalies have arisen as a result of well-intentioned attempts to deal with and stop discrimination on the basis of inherited identity. They are now being used to deal with alleged discrimination on the basis of acquired identity. The irrational obsession with identity is the root cause of this mess.

Secularists have been silent on this issue generally and on this case specifically. The victim culture of artificial grievances spawned by multiculturalism will encourage demands for other exemption clauses on the basis of one identity or another and or an imagined grievance. In particular the conflation of faith and ethnicity will create more alleged grievances. This is the issue that secularists have avoided for too long and now must squarely face.

The Equality Bill may or may not complete its passage before the general election in May, but if it does it may be the source of the very conflict it is meant to end. A serious rethink is in order.