Court off to bad start

For centuries the House of Lords was the highest court of appeal in England, although more recently the full Lords did not actually hear cases, which in 1876 were delegated to the Lords of Appeal in Ordinary, or the Law Lords. As of 1 October, however, this body's jurisdiction was turned over to a new Supreme Court of the United Kingdom, the membership of the former becoming the first justices of the latter, thereafter losing their right to vote in the upper chamber of Britain's Parliament.

Right off the mark the court has created controversy in ruling against London's JFS school, which had declined to enrol a certain "M" whom it judged to be further down the waiting list with respect to eligibility for admission.

The 12-year-old boy was refused a place at the JFS (formerly known as the Jews' Free School) in Brent, north London, despite regularly attending a Progressive synagogue. While his father is Jewish by birth, his mother is Jewish by conversion. However, the conversion ceremony was conducted by a Progressive rather than an Orthodox synagogue, which is not recognised by the Office of the Chief Rabbi. The children of atheists, and practising Christians, were allowed to attend the school as long as their mothers were considered Jewish.

For those of us who remember the civil rights struggles of the 1950s and '60s in the US, the school's action sounds like a clear case of racial discrimination which the Court rightly prohibited. Yet all communities set boundaries around themselves, necessarily including some people and excluding everyone else. Sometimes biology sets the boundaries, as the female half of humanity obviously excludes men. Similarly, marriage is an intrinsically exclusive institution anchored in sexual complementarity between a man and a women, who, as the marriage vows put it, forsake all others for each other alone.

Religious communities generally find their identity in shared ultimate convictions about God, the world and our place in that world. Sometimes, but not always, these convictions are summarized in a binding confessional document such as the Augsburg Confession or the Heidelberg Catechism. Christianity is deliberately multiethnic, embracing a huge variety of peoples and cultures around the globe, as indicated at the very outset of the christian era in Galatians 3:28.

Judaism has always been different. To be sure, Judaism consists of certain tenets embodied in the Tanakh and such ancillary writings as the Talmud, which suggests a common confessional identity. Yet one of these beliefs is that God made his covenant with the biological descendants of Abraham more than three and a half millennia ago. God has a unique and exclusive relationship with these descendants whom he freely chose for his own out of all the other nations on earth. He gave them his Torah, or teachings, and commanded them to follow its precepts. God designated circumcision as the mark of the covenant, and this mark was often an offence to conquering nations, such as the Greeks in the 2nd century BC, who ruthlessly persecuted the Jews for not conforming to hellenistic ways (2 Maccabees 6-7).

This scandal of particularity continues to be an offence to non-Jews, as is evident in this recent court case. I must say that my heart is with the boy's parents, who desire a Jewish education for him. For the school to exclude him because it doubts his mother's conversion seems unfair. That the school doubts further, not the sincerity of this conversion, but merely the procedure compounds the sense of injustice that many of us feel. Nevertheless, our feelings are not the only things at stake, nor are they the most crucial issue, especially as far as the law is concerned. The central issue is whether a public court of law has the authority to decide who is a Jew and who is not. That the new Supreme Court is claiming this authority has negative implications for other religious communities as well.

The predominant liberalism of the English-speaking democracies would reduce all communities to mere voluntary associations. Of course, there are groups of Christians, especially those in the baptistic and free church traditions, that see their own churches precisely as democratically-governed voluntary communities of believers. However, the vast majority of Christians do not do so, recognizing their eccesial communities as authoritative institutions anchored in God's grace, as manifested in preaching the Word and administering the sacraments. (This roughly corresponds, though not entirely, to the difference between Ernst Tröltsch's sect and church.) Yet even those Christians embracing a voluntaristic ecclesiology should not wish to see the state, through its judicial arm, impose this on all religious groups, as that would see the state overextending its proper sphere of competence to the detriment of everyone, as David Goldman warns.

Because Britain does not have a written constitution, its Parliament has the authority to curtail the new court's jurisdiction, as it deems necessary. Whether it will have the will to do so is another matter. Given the reluctance of Canada's legislatures to invoke Section 33 of the Charter of Rights and Freedoms against questionable judicial decisions, it seems unlikely that Britain's Parliament will intervene, especially as the Court's decision appears to accord so well with current individualist understandings of equality and nondiscrimination.