The British Supreme Court ruled last Wednesday that it is illegal for a state-sponsored Jewish school to base its admission policy on whether one’s mother is Jewish. The case involved a 12-year-old boy whose father was born Jewish and whose mother was converted to Judaism by a Progressive (one of Britain’s reform movements) rabbi. The state-funded school, the Jewish Free School, is permitted by law to give preference to Jewish children. The school authorities, however, rejected the validity of the mother’s non-Orthodox conversion. While asserting the classic halachic criterion that Jewish identity is conferred through the mother, the school rejected this boy’s application on the basis that he was not technically Jewish.
The High Court’s decision, at first glance, appears to be a significant victory for non-Orthodox Judaism, since it forces the school to admit a child that Orthodox rabbis would not deem as halachically Jewish. In my estimation, however, we in the non-Orthodox world have little to celebrate.
The court’s rationale is actually an outright rejection of our own understanding of how Jewish identity is most typically transmitted, through parentage. Except in cases of conversion, Jewish identity is a not a religious choice.
Granted, the American Reform and Reconstructionist movements, Britain’s Progressive movement and a few other others hold that the child of Jewish father and non-Jewish mother may be considered Jewish, while the rest of the Jewish world accepts a solely matrilineal definition of Jewish identity for Jews by birth. But even within this serious disagreement between the movements there is a fundamental acceptance that “Jewishness” is most often conferred by birth automatically without any criteria to what such a person believes or practices. This approach is underscored by the way we welcome those who have converted to Judaism as the “sons or daughters of our father Abraham” (and perhaps “of our mother Sarah”). While they join the Jewish people by virtue of their acceptance of Torah and mitzvot, we symbolically ascribe them the parentage that serves as the most primary criteria for Jewish identity.
What the court struck down was not the hegemony of the Orthodox establishment. Rather, it rejected the notion of all lineal descent — either matrilineal or patrilineal. The court’s decision was based on the notion that “Jewishness” is solely a matter of faith and not at all on parentage. Jewishness to the British court is measured by things such as synagogue attendance, ritual practices and the like. Applying an Anglican understanding of “faith,” the court’s definition of Jewish identity flies in the face of both classic and contemporary notions of the Jewish national experience, peoplehood and Zionism.
In many ways the court’s decision has resonances of late-19th and early-20th century attempts to redefine Judaism as a religion alone, suggesting that Jews were Frenchmen or Germans or Americans “of the Mosaic persuasion.” As the Reform movement’s Pittsburgh Platform of 1885 stated, “We consider ourselves no longer a nation, but a religious community.”
Ironically, the approach of the court also shares a central idea with the actual wording of the Reform movement’s notorious 1983 resolution on patrilineal descent adopted by the Central Conference of American Rabbis. While its decision to consider as Jews the children of Jewish fathers and non-Jewish mothers grabbed the most attention, it was its particular criteria for determining the Jewish identity of such children that was even more of a radical break with Jewish tradition. According to the resolution, the child of one Jewish parent (mother or father) is only under “the presumption of Jewish descent.” In order for the Jewish identity of such a child to be firmly established, the child is required to participate in “timely public and formal acts of identification with the Jewish people,” such as covenant ceremonies at birth, the acquisition of a Hebrew name, Torah study, bar/bat mitzvah, and so on. This too amounts to a Jewish identity established through practices rather than by birth.
Both the late and contemporary attempts to redefine Jewish identity solely in terms of faith and practice are more than forced misreadings of Jewish history and thought. They also have proven to be particularly problematic given that the vast majority of American Jews do not see themselves as “religious” by any movement’s definition. These days, our desire to be inclusive actually relies upon a definition of Jewish identity based on parentage because we want to affirm that children born from Jewish parents, even if they never participated in Jewish life, are nonetheless Jewish.
Further, most American Jews would maintain that even a thick sense of Jewish identity can be expressed in numerous ways that would not necessarily be restricted to religious practice.
Jewish identity, since rabbinic times, has seamlessly weaved together aspects of faith (“Torah and mitzvot”) with being a citizen of the Jewish people. The British court suggested that faith is the only just criterion of determining who is Jewish, and that ascribing Jewish identity as a result of parentage amounts to “discrimination on racist grounds.” It is the conferral of Jewish identity through parentage that affirms the notion of Jewish citizenship. We are more than a faith community. We are a people. And like citizenship generally, Jewish identity is most often conferred automatically at birth. n
Rabbi Leon A. Morris is executive director of the Skirball Center for Adult Jewish Learning at Temple Emanu-El and is the rabbi of Temple Adas Israel in Sag Harbor, L.I.