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From the New York Times, Who Is a Jew? Court Ruling in Britain Raises Question (H/T Instapundit). A student applied to an Orthodox Jewish school in the UK, and the School found that he wasn’t Jewish, and would not admit him. While the boys mother converted in a Progressive Synagogue, because she did not convert in a Orthodox synagogue, the school did not consider the boy Jewish.
The questions before the judges in Courtroom No. 1 ofBritain’s Supreme Court were as ancient and as complex as Judaism itself.
Who is a Jew? And who gets to decide?
On the surface, the court was considering a straightforward challenge to the admissions policy of a Jewish high school in London. But the case, in which arguments concluded Oct. 30, has potential repercussions for thousands of other parochial schools across Britain. And in addressing issues at the heart of Jewish identity, it has exposed bitter divisions in Britain’s community of 300,000 or so Jews, pitting members of various Jewish denominations against one another.
While schools in the UK can base admissions on religion, they cannot base admissions on race or ethnicity.
The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.
“The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act,” the court said. It added that while it was fair that Jewish schools should give preference to Jewish children, the admissions criteria must depend not on family ties, but “on faith, however defined.”
I have always considered question of how to define Judaism, but I never thought it makes much of a difference. I’m Jewish. It describes my identity, and who I am. Whether that is a race, religion, or ethnicity, I don’t know, or particularly care.
I do not know anything about this U.K. discrimination law, but it strikes me as curious that a school can discriminate based on religion, but not race or ethnicity. Why distinguish. A person’s identity defines who they are. Also, it will be pretty tricky for a Court to step in an divine how to define Jewish faith. Murky indeed. I’ll keep an eye on this, anyway.
But, here is one take on what defines a Jew 😉
Josh Blackman's Blog 
November 9, 2009 at 2:38 pm
Are you aware that the Supreme Court has ruled that Jews are a race under 42 U.S.C. 1981? The Court (Scalia, maybe?) looked at dictionaries from the 1866 era and discovered that the concept of race was very different then from what it is now. Among the different races that Congress had referred to in legislation were Northern Italians and Southern Italians!
November 9, 2009 at 2:39 pm
I didn’t know that. Very curious. Well if it was in an 1866 dictionary, it must be true.
November 9, 2009 at 2:58 pm
My memory was faulty. The case involved 1982, not 1981, and it was written by White. It was Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987).
See http://74.125.113.132/search?q=cache:PFORvrLya-MJ:supreme.justia.com/us/481/615/case.html+Shaare+Tefila+Congregation+v.Cobb&cd=2&hl=en&ct=clnk&gl=us
The discussion of the meaning of race occurred in a related case, which involved 1981: St. Francis College v. Al-Khazraji, 481 U. S. 604 (1987).
Here is the relevant portion of the text:
Petitioner’s submission rests on the assumption that all those who might be deemed Caucasians today were thought to be of the same race when § 1981 became law in the 19th century; and it may be that a variety of ethnic groups, including Arabs, are now considered to be within the Caucasian race. [n4] The understanding of “race” in the 19th century, however, was different. Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law.
In the middle years of the 19th century, dictionaries commonly referred to race as a “continued series of descendants from a parent who is called the stock,” N. Webster, An American Dictionary of the English Language 666 (New [p611] York 1830) (emphasis in original), “[t]he lineage of a family,” 2 N. Webster, A Dictionary of the English Language 411 (New Haven 1841), or “descendants of a common ancestor,” J. Donald, Chambers’ Etymological Dictionary of the English Language 415 (London 1871). The 1887 edition of Webster’s expanded the definition somewhat: “The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock.” N. Webster, Dictionary of the English Language 589 (W. Wheeler ed. 1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races, 8 The Century Dictionary and Cyclopedia 4926 (1911), or to race as involving divisions of mankind based upon different physical characteristics. Webster’s Collegiate Dictionary 794 (3d ed.1916). Even so, modern dictionaries still include among the definitions of race “a family, tribe, people, or nation belonging to the same stock.” Webster’s Third New International Dictionary 1870 (1971); Webster’s Ninth New Collegiate Dictionary 969 (1986).
Encyclopedias of the 19th century also described race in terms of ethnic groups, which is a narrower concept of race than petitioners urge. Encyclopedia Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 123, gypsies, 6 id. at 123, Basques, 1 id. at 602, and Hebrews, 6 id. at 209. The 1863 version of the New American Cyclopaedia divided the Arabs into a number of subsidiary races, vol. 1, p. 739; represented the Hebrews as of the Semitic race, 9 id. at 27, and identified numerous other groups as constituting races, including Swedes, 15 id. at 216, Norwegians, 12 id. at 410, Germans, 8 id. at 200, Greeks, 8 id. at 438, Finns, 7 id. at 513, Italians, 9 id. at 644-645 (referring to mixture of different races), Spanish, 14 id. at 804, Mongolians, 11 id. at 651, Russians, 14 id. at 226, and the like. The Ninth edition of the Encyclopedia Britannica also referred to Arabs, vol. 2, p. 245 (1878), Jews, 13 id. at 685 (1881), and other ethnic groups such as Germans, 10 id. at [p612] 473 (1879), Hungarians, 12 id. at 365 (1880), and Greeks, 11 id. at 83 (1880), as separate races.
These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that, for the purposes of § 1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race. We would expect the legislative history of § 1981, which the Court held in Runyon v. McCrary had its source in the Civil Rights Act of 1866, 14 Stat. 27, as well as the Voting Rights Act of 1870, 16 Stat. 140, 144, to reflect this common understanding, which it surely does. The debates are replete with references to the Scandinavian races, Cong.Globe, 39th Cong., 1st Sess., 499 (1866) (remarks of Sen. Cowan), as well as the Chinese, id. at 523 (remarks of Sen. Davis), Latin, id. at 238 (remarks of Rep. Kasson during debate of home rule for the District of Columbia), Spanish, id. at 251 (remarks of Sen. Davis during debate of District of Columbia suffrage), and Anglo-Saxon races, id. at 542 (remarks of Rep. Dawson). Jews, ibid., Mexicans, see ibid. (remarks of Rep. Dawson), blacks, passim, and Mongolians, id. at 498 (remarks of Sen. Cowan), were similarly categorized. Gypsies were referred to as a race. Ibid. (remarks of Sen. Cowan). Likewise, the Germans:
Who will say that Ohio can pass a law enacting that no man of the German race . . . shall ever own any property in Ohio, or shall ever make a contract in Ohio, or ever inherit property in Ohio, or ever come into Ohio to live, or even to work? If Ohio may pass such a law, and exclude a German citizen . . . because he is of the German nationality or race, then may every other State do so.
Id. at 1294 (remarks of Sen. Shellabarger).
There was a reference to the Caucasian race, but it appears to have been referring to people of European ancestry. Id. at 523 (remarks of Sen. Davis).
The history of the 1870 Act reflects similar understanding of what groups Congress intended to protect from intentional [p613] discrimination. It is clear, for example, that the civil rights sections of the 1870 Act provided protection for immigrant groups such as the Chinese. This view was expressed in the Senate. Cong.Globe, 41st Cong., 2d Sess., 1536, 3658, 3808 (1870). In the House, Representative Bingham described § 16 of the Act, part of the authority for § 1981, as declaring
that the States shall not hereafter discriminate against the immigrant from China and in favor of the immigrant from Prussia, nor against the immigrant from France and in favor of the immigrant from Ireland.
Id. at 3871.
Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. [n5] The Court of Appeals was thus quite right in holding that § 1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection. If respondent, on remand, can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981.
November 10, 2009 at 9:53 pm
If you want to know what jews are – ask them.
We are a peoplhood, an ethnos, the only ethnic group to have its very own religion. The Jewish religion is an essential part of Jewishness. It defines who we are even if we dont believe the literalness of its stories or liturgy.