To Be or Not to Be Jewish: The UK Supreme Court Answers the Question

Abstract

On 16 December 2009 the U.K. Supreme Court held a state-funded Jewish school (Jewish Free School) to be guilty of discrimination based on ethnic origin in the way it operated its admissions policies. The school’s admission criteria were based on the traditional membership rule of Judaism, according to which to be Jewish one must be born of Jewish mother. The Court considered that the admission test was not religious in nature, but ethnic-based and instructed the school to establish a new test based on autonomous individual decisions and on the irrelevance of descent, i.e. on a basis compatible with Christian logic. In this paper I critically analyze this decision, concentrating my remarks on three issues, namely, the categorization of Jews in ethnic terms, the nature of the Jewish membership rule, and the justifiability of discriminatory conduct that is motivated by religion. I argue that the Court, by applying a concept of equality that implies a homogenization of behaviours and values, ends up restricting the room for diversity that is necessary for the preservation of a genuinely pluralistic society.