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« Health Care Reform -the Cliffs Notes Edition (Sujatha) | Main | Maddy wants patient choice! »

November 09, 2009


I saw this article and almost posted a short commentary but decided against it when I realized that I had little knowledge either about Judaism or the law. I did forward it to Anna, hoping she would have something to say. (She didn't bite).

I am not sure how to interpret the British court's decision and its ramification on religious liberties. But my own layman's take on the matter too was that the boy whose application was turned down by the school IS a Jew. Religious faith is exactly that - faith, what one believes about morality, choices and also certain supernatural ideas about the world, life and death. To define religious background by ancestry comes uncomfortably close to the Hindu caste system. I added the following in my e-mail to Anna.

I found this sentence interesting - defining faith by ancestry and not observance or belief. Unfortunately, this kind of orthodoxy plays right into anti-Semitic ideology which insists that Jewishness is a matter of race which is why in Hitler's Germany many who had converted to Christianity were persecuted if their parents or grandparents had been Jewish.

Orthodox Jews, of course, sympathize with the school, saying that observance is no test of Jewishness, and that all that matters is whether one’s mother is Jewish. So little does observance matter, in fact, that “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish,” Rabbi Yitzchak Schochet, chairman of the Rabbinical Council of the United Synagogue, said recently.

1. "You can see the problem: a court tells a Jewish organization or entity how it must define its Jewish membership." Whatever the merits of the pending appeal, I beg to dispute the premise that a school is an 'organization' with a 'membership'.
2. Was there not a case, resolved in the US in recent years, of a Jew being refused employment in a Catholic charitable organization? I recall neither the particulars nor the outcome, but remember reading about it.

Ruchira, I have been both quite sick with, apparently, the dreaded H1NI virus, and quite busy with court filings, a combination I recommend to no one.

Judaism is a religion and an ethnicity (or collection, thereof). As to the religion, from the perspective of the person whose beliefs are Jewish, every denomination of Judaism that I know has some kind of process for conversion. What constitutes sufficient voodoo to accomplish conversion is a matter of endless squabbling.

Again from a religious perspective, if you were born to a Jewish mother, you get in through the back door. I suppose the logic is that through reliable, maternal ancestry, you can be traced to someone in the covenant, way back in the deserts of the Middle East, or to someone who underwent proper gerut (conversion). Even King David was the son of a convert (Ruth, Moabite), after all. I write this with proverbial tongue in cheek, of course: look at groups of Middle Eastern Jews and European Jews, for example, and it's plain that the chances that we all wandered out of Egypt are slim.

Here, the kid's mother converted in a "progressive" synagogue, whatever that is. That synagogue (like Reform Synagogues, which don't require conversion, at all) no doubt considers both child and mother Jewish. Orthodox Jews (insofar as they or any group of Jews agree as a community) would say that either the mother needed to undergo the Orthodox, halakhic gerut process, or the child now has to, for either to be considered Jewish. A religious analogy might be if a child baptized and raised in a "high church" Episcopal church sought to become Catholic--the child's beliefs might change little to nothing, but the Catholic Church would still make him undergo Catholic conversion.

What makes this analogy poor from a religious perspective (beyond, but related to, the fact that if the child's mother were Catholic, he would still need to undergo Catholic conversion) is that Catholicism, like all Christianity (and Islam, and some other religions) is explicitly proselytic and xenophilic. Judaism is neither. There are admonitions about loving the stranger because we were once strangers in the land of Egypt (e.g. Lev. 19:34) using the same word for strangers as is used for converts ("gerim"), but my experiential opinion--religious scholars may argue with me-- is that the religion is explicitly hostile to conversion, and uncomfortable with converts.

The connection of that discomfort or hostility to conversion/converts with Judaism's status as an ethnicity as well as a religion is a chicken and egg question. "Race" is a term freighted with 19th/20th century connotations in my mind. But there's no question that a person can be Jewish by ancestry rather than by belief. To insist otherwise would render nonsensical, e.g., medical forms I've had to review that include among the categories predisposed to some disease or another "Ashkenazi Jewish." There's genetic baggage there, whatever its cultural, religious, or political import.

As to its political import, I don't think that saying someone could be Jewish by ancestry feeds Anti-Semitic ideology or caused Hitler to persecute Christian converts anymore than saying that someone could be Roma or Slav by ancestry caused Hitler to persecute those populations. The "clannishness" of Jews is certainly a popular meme of Anti-Semitism, but on one hand that perception isn't clearly linked to the definition of Judaism through ancestry, and on the other there are countries, such as India, where insular groups defined by ancestry and hostile to conversion live quite peaceably with one another.

One might also make a distinction between religious Jews and the people like my many relatives who are almost entirely non-observant and non-believers, but married other Jews, have circles of friends that are disproportionately Jewish, and not coincidentally follow the cultural traditions of the Jewish holiday calendar. I think of such people as culturally Jewish, but not religious Jews. And I think of many very assimilated Jews I've met (particularly from places with limited Jewish populations) as maybe Jewish by ancestry (I'd usually mentally specify, Ashkenazi, Iranian Jewish, etc.) but not Jewish either culturally or religiously.

The issue of intra-Jewish hostility among all these groups is a whole different can of worms, which we've discussed here, before. On a related note, regarding Rabbi Schochet's ham sandwich analogy, it was either taken radically out of context, or earned him some serious rebuke. While the Orthodox would consider such a person a Jew, they are far more hostile to non-observant Jews than they are to non-Jews (as radical fringes always are). “Schochet” means ritual butcher in Yiddish. Maybe the guy just has meat sandwiches on the brain.

That earnest response aside, the following is my favorite response so far to this news item:

According to the questionnaire, I am "meh."

According to the Orthodox rabbi in England, maybe, though probably not. My mother converted to Judaism through a Conservative rabbi before I was born. I would summarize the attitude of the synagogues in which I grew up toward such a union and its issue as "Okay, but don't let it happen again." Most generally accepted us all as Jewish, but continued to express disapproval of intermarriage).

i blogged this at *secular right*, but the server is down. the british court is redefining what a jew is. forcing it into a protestant straightjacket. which is good. if british jews want to live according halakah as handed down by the rabbis after 200 CE, they can move to israel.

my blog post on this:


I actually understand your points about Judaism very well, only because it is so similar to Hinduism. Another "original" religion hostile to conversion, defined variously by ethnicity, culture and belief.

My argument however, in favor of the boy, is a bit refined. The Jewish academy he applied to, I presume describes itself as a "religious" institution and not as an ethnic one, namely, religious texts are probably part of the curriculum and Jews from any corner of the world can become part of the student body. By these principles, all that the school ought to really care about is that the boy does consider himself part of faith based Jewish tradition, as do both his parents. I doubt that this particular boy will eat a ham sandwich on Yom Kippur. So, he is not only a cultural Jew, he is also a religious Jew. Two out of three should trump the third factor, the ethnicity of the mother. That's my opinion.

Consider my own case as a nominal Hindu. I am like your relatives, a cultural Hindu in that I was born in a family that has been Hindu for as far back as the family history can be traced. But within the family there are and were both observant and non-observant Hindus, including outright atheists. I myself am a non-believer and a non-observer. But unfortunately, if I were a school girl applying to a religious Hindu school, I would probably get in because of ancestry rather than my belief (which in my case would be an absence of belief). Yet, another child, say of European or African ancestry who has converted and believes far more sincerely in the Hindu religious tenets, may not be admitted because their ethnicity is suspect. If the school is in Britain, where racial considerations cannot be a factor in admissions, then the British courts would be right in ruling that the school is discriminating on the basis of race and the matter is no longer one of religious freedom.

I remember a similar case that came under scrutiny a few years ago in Germany. I don't think it was about admission to a school. I think it concerned membership in a synagogue. The case involved Soviet Jews with converted spouses who had emigrated to Germany. The German courts refused to intervene and left the matter to the Jewish community. One German official quipped, "Given our recent history, the German government is not going to make the mistake of entering into a debate over "who" is a Jew."


To be clear, I was describing, not exculpating the attitudes involved, by way of explaining that I think, as in Hinduism, ideas regarding ancestry can be part of a set of religious beliefs, making the line the Brits are trying to draw tricky. Personally, I don't know why the subjective criterion of "believing" oneself to be Jewish, which gets into intrusive questions of bona fides (i.e., do we know he really has faith?) would even be a test for entry into a Jewish academy, or a Muslim, Christian, or Hindu one. There shouldn't be a test. If the boy wants a religious Jewish curriculum, he should be able to enter the school, the same as if he were a Christian boy who happened to have an interest in the Jewish faith. Frankly, from my American First Amendment perspective it seems that where things went off the rails here is when the Brits decided to publicly fund religious schools. And having decided to publicly fund religious schools, when they decided to allow exclusion by religious test, and to defer to religious authority as to the definition of faith. In the United States, if public funding goes into it (the question of tax exemption is more complicated), everyone gets to attend, and if not, they can exclude whoever they want, which is why all the religious freaks either homeschool (popular among Christians) or send their kids to private religious schools (Jews, Muslims) and scream bloody murder about public education funding. I have no particular sympathy for such groups, but this balance between public and private seems more politically sane to me, which I think is what Joe was trying to say.

You'd get into a religious Hindu school, I might or might not into a Jewish one (depending on the denomination), but I suspect neither of us would either undertake to go to such schools or to shut them down (though, again, I'd fight to keep public funding from going to them). Bob Jones University lost its tax exempt status, but continues to operate, notwithstanding its position on interracial marriage, and as loathsome as I find that position, that seems the appropriate political balance to me. It forces the good, bad, and ugly of the people's values and beliefs out into the open, and does not involve the government in the business of what people should believe: all squarely First Amendment purposes.

I'd add that this kid's easiest practical move to get into the school would have been to say he wanted to convert, which if he really is a believer, would be a nothing process, and would have garnered warm fuzzies all around. Offensive to make him do it, maybe, but that gets back to why does he want to go to this school, anyway? And why battle this through the court system? There's a much larger debate raging in the Jewish community over Jewish identity, and it seems to me that this kid's being used as a pawn in that debate. My emotional response is that I'm comfortable with my own, mixed sense of identity, and who cares what the Orthodox rabbis think? Their approval is wholly unnecessary to my identity as a Jew.

Concentrating all the wackiest people in one place seems like a terrible idea to me, Razib. The last thing Israel/Palestine/the world needs is to exacerbate the movement of religious fundamentalists into Israel, and of tolerant secularists out.

Some scattershot comments based on no scholarship, perhaps more appropriate to "Putting the Caste System on Notice".

Conversion : Having grown up in India in the 50s, totally without religious instruction through no choice of mine, I still have a hard time with the concept of Hinduism as anything but a philosophy. The social strictures, ritual and practice of Hinduism are so geographically disperse and convoluted that I personally do not see much in common with the Abrahamic religions. The absence of a Hindu authoritarian hierarchy adds to my conviction. So, other than social ostracism, I cannot imagine "hostility to conversion", which I see as an attribute of monotheistic beliefs. In other words, I don't care if you have 'become' Hindu, but don't ask for my daughter's hand, and get out of my kitchen, you mlechha, you! Certainly not debatable in a court of law. Conversion to Hinduism, whatever that entails, is probably a late 20th Century phenomenon that leaves the convert in some un-categorizable social pigeonhole. On the other hand, persecution of apostasy is universal and historically persistent.

Hindu schools : I also grew up unaware of exclusionary Hindu schools organized for general education. This too, to my mind, is late 20th Century. If there were such schools in earlier times, which non-Hindu would want to enrol their children? For that matter, who would today? And surely, such schools would have barred lower caste entrants. This, unfortunately, is the analog of the Orthodox Jewish school of this post.

Another analog : When Indian Jews first started emigrating to Israel in the 60s, the Bene-Israel, strands descended from ancient diaspora, were refused acknowledgement by the Chief Rabbi and placed in limbo. Besides discrimination, as felt by other non-European Jews, the Bene-Israel experienced outright denial by religious authorities. Whatever the deep flaws of Hinduism as practised, I am glad that there is no such authority in India. The Wikipedia article on Ashkenazi Jews states that "Outside the State of Israel, no central authority or ruling body in Judaism determines who is a Jew". Apparently it's not so clear-cut in practice.

A curious note : Trolling the TV channels in Bangalore not long ago I came across a mullah lecturing on comparative religion in Urdu, quoting fluently from texts in Arabic and Sanskrit. I didn't understand a word but watched in fascination for half an hour.

Finally, didn't we all wander out of Egypt?


It seems as though you're basically saying that there is no real conversion to Hinduism, which in some ways reinforces what Ruchira's saying.

I think we all wandered out of Kenya, to be precise. My point was that as an ethnic group that includes people with an enormous spectrum of physical complexions, from blond to quite dark, it's a farce not to accept that people have converted and intermarried into the faith for millenia, and that even those who consider themselves the purest of the pure by whatever test undoubtedly have, in addition to a cultural, religious, ethnic, and possibly ancestral connection to other Jews, also an ancestral connection with the groups among whom they've lived for centuries, whether European, North African, or South Asian.

There is no central authority or ruling body in Judaism, and I would say of it, as well, that the social strictures, ritual and practice are geographically disperse and convoluted. There are various widely varying groups (Syrian Jews, Ashkenazim, Baghdadi Jews, etc.), who all look down on each other, and then denominations or sects within groups, different groups of rabbis who disagree with each other, and then a whole mess of unaffiliated people, e.g. a random minion (prayer quorum) that convenes at the local Jewish Community Center somewhere in Kansas.

The problem in the case of the state of Israel is the same problem, in my mind, as the problem with the school in England: a particular religious body-- in England, the "United Hebrew Congregations of the Commonwealth" and in Israel, the Chief Rabbinate-- has been deputized by the state, creating a central religious authority through the combination of religion and the state. What the Chief Rabbi of the UHCC or the Chief Rabbi of Israel says about religious practice and who's a Jew matters not a whit to (even an observant) Jew in Los Angeles, California, from a religious perspective. That's why this seems more coherent to me as a political problem than it is as a religious problem.


well, though religion is a variable, i don't think it is *the* variable which is the root of the israel/palestine conflict, so i don't think it matters if orthodox start emigrating to israel. arguably the most hawkish jewish israelis are russians now, and that's a function of their history and background, not their religious beliefs (they usually don't have any). by contrast, the orthodox shas party is somewhat dovish, while the "ultra-orthodox" draft-dodge. and as you probably know terror in the service of palestinian nationalism was trailblazed by the marxist PFLP, stocked with christian orthodox origin individuals such as george habash who were personally atheists (fatah is by origin a left-nationalist party too).


no. in fact, an indo-greek ambassador to central india left a testament which suggested he was a devotee of a hindu god. how do you think the champas of vietnam became saivites, the balinese hindus? most of southeast asia had a hindu flavoring at some point, only later superseded by buddhism and islam, though in places like java and thailand the hindu substrate is still nakedly clear.

hindu self-conceptions in india have been shaped by interaction with muslims and later christians. before that hindu was just an indian, and probably a more open-textured identity at that.

p.s. the issue with the bene-israel and beta-israel is in *part* that they weren't rabbinical jews. they had the torah, but not the talmud, so their practices were sharp variance with the mainstream of "religious judaism." genetics has verified cohen ancestry among the bene-israel, but it seems likely that the beta-israel have no genetic relationship to other jewish groups. there is a school of anthropologists who argue that the beta-israel are judaizers, orthodox ethiopian christians who moved in a sectarian fashion in the direction of judaism (ethiopian orthodox christanity is already relatively hebraic, with rites like circumcision), perhaps influenced by jews from yemen who were resident in ethiopia.


You are right. There are not really many "Hindu" schools, at least not in India. Hindus tend to keep religious education within the home. The more socially and politically motivated groups like the Arya Samaj and Sanatan Dharma religious bodies (all 20th century creations) do have extensive funding for education and therefore, schools. Their institutions are not very overtly religious, except for the fact that the morning school prayer is the invocation of some Hindu deity or the other. Most were founded for nationalist reasons, to forge a proud Indian identity under the British rule and religion was not the primary identity they fostered. These schools did, at least in my time, admit children of all faiths even those of the lower Hindu castes, as long as the children would be willing to say the morning prayers along with everyone else. Naturally, not many non-Hindu kids were flocking to get admitted there.

The funny thing is that the majority of schools with "official" religious affiliations in India are either Christian (by far the overwhelming majority), Islamic or to a lesser extent, Sikh (the Khalsa schools and colleges, mostly in northern India) and not Hindu, the religion of the majority in India. Perhaps it is not surprising at all. All three faiths, particularly the two Abrahamic ones are seriously into the business of proselytizing and converting whereas Hinduism is not. Schools provide a convenient route to religious teachings and conversion. Although very few Hindu families I know ever send their kids to Islamic schools, some do choose Khalsa schools and of course, the wealthy and upper middle class Hindus used to (still do?) send their boys and girls to Christian (particularly Catholic convent run) schools. The purpose of course, was never religious instruction but a superior English language education. And Hindu children being the majority in most of these Catholic institutions, there was little fear of the tykes falling prey to conversion by the priests and nuns.

I suspect that with religious sentiments getting more and more politicized, the fear of Islamic terrorism rising, Hindus in the US and perhaps elsewhere, will follow in the footsteps of Abrahamic traditions and start opening "Hindu" schools, especially in big cities where the population of Indians will also guarantee a financial return.

By the way, Razib is the go-to man if you need any religious / anthropological esoterica clarified :-)

I agree with Anna that this is more of a political problem than a religious problem, and that it's (at least largely) caused by the public funding of expressly religious schools that have the authority to exclude people based on religious criteria. I was slightly exhausted when writing this post, but to the extent I was trying to make a point beyond summarizing or presenting the article, that was it. Oh, and to the extent it's a separate point, that the courts aren't equipped to be settling these kinds of fights.

The problem I have with Ruchira's proposal of a belief-based test for admission is with government/judicial enforcement. From my own perspective on how religion should operate, that's fine, and if religious schools want to operate that way, bully for them. But I have a problem with (1) government dictating matters of religion to religions (or to anyone), and (2) the act of line-drawing based on perceptions of subjective belief (and at a level, if this test is going to mean anything, beyond a person simply declaring "I want to attend your religious institution").

h (1) government dictating matters of religion to religions (or to anyone)

they do it all the time. including in the united states. if i worked at a restaurant as a server and decided to wear a headscarf because i practiced-the-religion-of-razib in contravention of restaurant dress-code, i suspect my case would get tossed out on prima facie grounds. in contrast, if was a woman who claimed that islam dictated that i cover my hair while i was working as a server, i might lose the case, but i bet that the case would get a fair hearing under the grounds of reasonable accommodation of religious exercise. at which point, the courts would have to make a determination of whether covering my hair was a necessary condition of being a muslim.


My nephew attends one such school, and the explicit discouragement to those of 'lower castes' is by hyper-control of the lunch diet. Only vegetarian lunches may be brought in. No chapatis/rotis, only rice with the usual S.Indian vegetarian accompaniments. The reasoning is that none of the 'undesirable' groups will kowtow to these restrictions, so the low income student population (this school charges minimal fees) is primarily from the 'higher castes' that have no difficulty maintaining this restricted diet.

Razib: With the caveat that I'm far from an employment law expert, I doubt it. My understanding is that, if it's a sincerely held belief (in practice a very minimal threshold), that's sufficient to require reasonable accommodation -- "necessary conditions" of being a Muslim aren't required or relevant, and religious protections aren't extended only to mainstream religions. It would turn on whether your wearing the headscarf causes undue hardship to your restaurant's business practice.

Razib : Thanks. It was thoughtless of me to have forgotten S.E.Asia. I should have argued that there seems to be no process or formality of conversion to Hinduism. You might know better about this too. More about S.E.Asia next time I go to the library and locate an infuriating book I once read.

At the risk of sounding too flippant, imagine if Israel started following the 'belief' standard in its right-of-return policy. Half of India might wind up there in a few years after discovering a sudden fondness for Deuteronomy.

Nevertheless, it seems clear to me that Britain should allow for belief standard, with in addition the usual presumption that children inherit religion (like nationality) from their parents unless they later reject it.

I don't think those positions are consistent, but what of it? As much flexibility as you can get away with...

Civil rights law and sometimes employment are areas in which I do and have practiced law, though not in the area of religion. I would say that Razib might well win both hypothetical cases in the U.S. under Title VII of the Civil Rights Act of 1964. The EEOC guidance provides a good outline of the discrimination analysis that Joe aims to paraphrase:

It's a bad analogy, though, because the civil rights laws passed by Congress are only about to what extent the government will intervene to define one private party's rights with respect to another private party. And workplaces and housing are singled out as public spaces for application of civil rights laws in a way that private religious schools, or private organizations (pace Narayan, way back when in this thread, private religious schools fall in the same category as private membership organizations), are not, unless they accept public funding. Thus the Americans with Disability Act does not apply to churches, but might to a homeless shelter run by the church that accepts federal HUD funding.

None of this legal framework holds true in much of Europe, which is much more comfortable intruding in private religious affairs.

A better analogy in the U.S. could be found in various First Amendment cases, which necessarily deal with government action. So if you want to find government intrusion in religious matters in the employment context, Razib, you would want to look at cases such as those in which the individual wishes to engage in religious activity that's been made illegal by the government for unrelated reasons under its parens patriae or police power authority.
The classic case in this area is the Scalia's decision in Employment Division v. Smith, which held that the plaintiffs could be denied unemployment benefits after termination for "misconduct" that stemmed from their ingestion of peyote for purposes of a religious ritual. out

That's probably as intrusive an example as I can think of, but it hardly qualifies as all the time.

By the way, I thought your points about Israel and the Bene Israel were interesting and well taken (to the secular but hawkish list you could add populations of mostly secular, angry, poor Sephardim from North Africa). My point was mostly in jest.


arya samaj made one up in the in the past century. it was necessary after muslims forcibly converted hindus in kerala during violence in the 1920s, who had to be "purified." and how do you think white hare krishnas arose?

you guys make good legal points. my overall point is that no all beliefs are treated equally.

p.s. my attitudes re: church & state are shaped by reading winnifred sullivan:

personal experience tells me that if someone demands to engage in antisocial practices because they want to, people will dismiss it. if someone engages in antisocial practices because they believe in a made-up entity, they have to be taken seriously. it's in the bill of rights. superstition gets special consideration as particularly important beliefs. i don't agree myself, but have no expectation that it'll change anytime in the future.

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