The Supreme Court has given judgment today in this case about the admissions policy of JFS school, a state secondary school that has been educating Jewish children in London since 1732. M’s father, E wanted M to go to the school: but he wasn’t given a place because according to Orthodox Jewish principles, M is not recognised as Jewish. That’s because his mother was not herself Jewish according to those rules (she is or was Italian, and was originally a Catholic). She converted to Judaism – which would have been okay had she converted according to the process recognised by the Chief Rabbi. But she converted under the auspices of a non-Orthodox synagogue. That wasn’t good enough for JFS; and so E went to law – claiming race discrimination, on the basis that his son was turned down because of his mother’s non-Jewish ethnic origins. It’s not about religious discrimination because faith schools have special protection under that law.

Having just invented the term religitigation to cover legal cases about religion, it’s good to come across an example in which both sides seem to have a reasonable case. I should say that, as a very severely lapsed Catholic, I have very little knowledge of Orthodox Judaism as opposed to Reform or Masorti Judaism (the type of Judaism E and his family follow). Temperamentally, being an atheist, I tend to be friendlier to “reform” anything than I am to “orthodox” anything. I certainly have no views on who is a Jew, or what sort of Jew should be allowed into Jewish schools. I’m not even sure how happy I am that there are faith schools, though I’m pretty clear I’m against allowing them to grow much in number. But I can certainly understand E’s frustration about his family not being regarded as sufficiently Jewish for the school. Equally, I have some sympathy with the school’s desire to stick by the Orthodox approach I understand it’s been applying for many years.

The Court has split 5-4 on the main issue: the majority holds that the admissions policy amounts to direct discrimination on racial grounds. As Lady Hale puts it (para. 66):

Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic. The fact that the Office of the Chief Rabbi would have over-looked his mother’s Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact. M was rejected, not because of who he is, but because of who his mother is. That in itself is not enough. If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity. But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected. This was because of his lack of descent from a particular ethnic group.

Lord Mance (para. 86) says:

A test of membership of a religion that focuses on descent from a particular people is a test based on ethnic origins. Whether matrilineal descent was originally chosen because it was an easy and secure way of identifying ancestry or because some other special significance was attached to women’s role is not relevant. Other tests identifying a people by drawing on descent or ancestry can of course exist, for example, a test based on patrilineal origins, or on the origins of both parents. Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line. But all such tests look, in one way or another, at ethnic origins…. This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion. It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the school’s view, to make the child Jewish.

Or as Lord Kerr puts it (para. 117)

The basis for the decision, therefore, or the grounds on which it was taken, was M’s lack of Jewishness. What motivated the school to approach the question of admission in this way was, no doubt, its desire to attract students who were recognised as Jewish by OCR and that may properly be characterised as a religious aspiration but I am firmly of the view that the basis that underlay it (in other words, the grounds on which it was taken) was that M did not have the necessary matrilineal connection in his ethnic origin.

Here’s Lord Clarke (para. 148):

As I see it, once it is accepted (as Lord Brown does) that the reason M is not a member of the Jewish religion is that his forbears in the matrilineal line were not Orthodox Jews and that, in that sense his less favourable treatment is determined by his descent, it follows that he is discriminated against on ethnic grounds. It makes no difference whether the reason M is not acceptable is that neither his mother nor anyone in his matrilineal line was born Jewish or that his mother was not converted to Orthodox Judaism. The question is, in my opinion, not that espoused by Lord Rodger, but whether it is discrimination on ethnic grounds to discriminate against all those who are not descended from Jewish women. In my opinion it is.

All of these rulings are seductive in the reading – Lord Phillips’s is the only one of the majority which I would pick out as, in my view, not clearly setting out the reasoning on which his conclusions was based (as opposed to his reasons for rejecting JFS’s arguments). They each deploy legislation and precedent fairly persuasively and make a pretty good case for their conclusion.

But having read Lord Rodger’s judgment, I have to say I see great force in his point (para. 226) that

The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.

The consequences he means are that Jewish schools will be prohibited by law from selecting their pupils according to their own religious principles. His judgment is by far the most impressive piece of reasoning of any of the Justices’, and has a clarity and force that is sharpened by its trenchancy. As he explains at para. 228

Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His 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 M was not considered for admission. The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.

and at para. 230

Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision. The governors were simply asked to consider admitting him as the son of a Jewish mother. They declined to do so because his mother had not converted under Orthodox auspices. It was her non-Orthodox conversion that was crucial. In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers’ conversions – a religious, not a racial, ground.

I think what makes his approach so convincing it that is focuses so clearly on first principles: in comparison the majority’s approach seems clouded by the intellectual frameworks they found in earlier cases – the extent to which the motive underlying discrimination could be distinguished from its grounds, for instance, which has perhaps led them to discount what can be characterised as JFS’s motivations as irrelevant.

Lord Brown agrees with Lord Rodger.

All the Justices agree there was at least indirect discrimination here (i.e. that the Orthodox Jewish rules are on their face racially neutral, but put children of some ethnic origins at a disadvantage). On the question whether that was unlawful or whether JFS had justified it, however, there was a slightly different outcome: Lords Hope and Walker, while siding with the minority on the direct discrimination point, both take the view that JFS had not justified the use of the Orthodox rules.

This I find very difficult to understand: in my view Lords Hope and Walker have erred by importing a much too subjective element into the concept of justification. The question, for them, seems to be whether JFS thought enough about its policy and whether it gave enough consideration to, and made enough compromises because of, its effect on M. That, though, is not the point. The point, surely, is whether applying the Orthodox Jewish rules has a legitimate aim and is a proportionate way of achieving that aim. Again, Lord Rodger seems to me to have this right (para. 233):

The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate. And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense. That is plainly why the School’s oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi. I cannot see how a court could hold that this policy is a disproportionate means of achieving the School’s legitimate aim.

Lord Brown agrees, citing (para. 255) Munby J at first instance:

Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS’s aims and objectives; on the contrary it would produce a different school ethos. If JFS’s existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate – indeed, as it seems to me, essential – to achieve those aims . . . JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.

Incidentally, I found it very helpful that the Court has decided to set out the majority opinions first, followed by the minority. It may not always be possible to adopt such a clear structure where a case involves a number of issues on which Justices take a variety of views. But where possible, this very much helps understanding, and is an excellent innovation.

You may be interested in Melanie Phillips’s comments – her views are similar to mine, though more vehement and more focused on what she sees as the arrogance and blundering of the judges. Fair points, as is her reminder of Lord Phillips’s absurd, almost surreal defence of Rowan Williams’s views on sharia law not all that long ago. Odd that he can see JFS’s policies as in effect racist, but sharia family law as not sexist. He, though, is President of the Supreme Court, unlike Melanie Phillips (which Phillips would you prefer?) and me.

There’s a discussion at Harry’s Place, too.