Some more thoughts in response to Prof. Wertheimer

 I appreciate Prof. Wertheimer's response to my last post on the U.K. decision.  She is correct, I think, to remind us that one danger to keep in view whenever one thinks about public funding of religious organizations and their work is the possibility that the regulatory strings which are often attached to this funding may undermine the organizations' ethos and mission.  It is also important to remember, though, that there is no reason, in principle, why the political authority must attach such strings to (say) school vouchers, or even to direct funding of religious schools (which do, after all, provide the political community with a valuable "secular" product).

Prof. Wertheimer says that "the problem here . . . is that access to a publicly-funded education in a Jewish school is being limited by one branch of the religion, resulting in the exclusion of members of other branches."  That could be a problem, if the government is denying funds or public support to other Jewish schools (schools that apply different standards), or making it difficult for such schools to open, or requiring publicly funded schools to employ Orthodox standards.  But, I do not see why -- in principle -- the fact that the school (which, while it is publicly supported, is, I assume, non-state) employs a standard that, in practice, "exclu[des] . . . members of other branches" is a problem.

Finally, Prof. Wertheimer writes:

[T]his entire discussion seems to underline the wisdom of keeping government and religion apart.  The simplest answer--and one that eliminates any risk of government interference in religion--may be that the government should cease paying for or financially supporting religious schools in the first place.  If the government were not supporting the schools, the problem of government interference in religious standards would not arise, and the parochial schools of Britain could set their own admission criteria without any government oversight.

Like Patrick Brennan, I am entirely committed to the wisdom of respecting the distinctiveness, and the independence, of political and religious authority.  To distinguish between "church" and "state", though -- as we should -- is not to rule out cooperation between the two on matters of shared concern (e.g., education), nor is it to imagine that "government" and "religion" should (or can) be kept apart.  Because political communities are inhabited by human being, and because most human beings are, and probably will continue to be, formed and motivated by religious communities and commitments, the goal needs to be the construction of policy that respects religious liberty, and enforces political equality, not a regime that attempts to impose on human persons an unhealthy (and, again, impossible) dis-integration of religious faith and involvement in the political community.

Is it the "simplest answer" -- "one that eliminates any risk of government interference in religion" to say "that the government should cease paying for or financially supporting religious schools in the first place"?  Perhaps.  Isn't it even simpler, though to say government should cease paying for all education (rather than constructing a system where some schools are funded and others -- religious ones -- are not)?  In any event, the removal of public support would not, I fear, "eliminate[] any risk of government interference in religion".  Even if religious schools do not accept public funds, there are many who believe that they should be required to observe the same non-discrimination rules that (appropriately) constrain governments.

In any event, I appreciate the conversation with Prof. Wertheimer.

UPDATE:  MOJ friend (and expert in U.K. human-rights law) Aidan O'Neill sends in this:

I’ve been following the commentary on the JFS School decision on MoJ and I fear that from the comments so far you have all got it rather wrong in viewing this case as having anything to do with relations between the State and Synagogue/Church/Mosque/Temple and/or the wisdom of strict disestablshmentarianism

 

In the first instance, the case is an intra-Jewish dispute brought by one private individual against another private institution.  It does not matter . . . that the school was a recognised “faith school” and received some funding and financial support from the Government, nor does it matters whose ancestors founded and paid for it.   The case could have been brought were the school a private one wholly independent of any Government funding (e.g. in English counter-intuitive terminology “a public school”).   The prohibition on race discrimination applies to private schools just as much as those receiving public funding.

 

Secondly, the case was brought under the Race Relations Act, a UK statute which was passed in the early 1970s around about the same time – and a part often same social movement – which brought the UK the statutory prohibition against sex discrimination and the right to equal pay.  The notion of “race” has for many years been given a very broad and purposive construction by the courts on the basis that racism is considered to be a great evil.  This has resulted in for example the Scottish appeal court finding in BBC Scotland v. Souter, 2001 SC 458; [2001] IRLR 150, IH – and contrary to the position I was arguing for as counsel for the BBC n the case - that the Scots and English are to be regarded as different/distinct races for the purposes of the legislation - as are gypsies/travellers/Romany.

 

But there was, for years, no express prohibition against discrimination on grounds of religious belief or practice and so, anxious to plug that supposed gap in the legislation, the courts held that Sikhs and Jews could be said to be distinct ethnic groups (but not Rastafarians).  So the statutory prohibition against anti-Semitism in this country has, faute de mieux, been held to be encompassed in the prohibition against race discrimination.

 

The prohibited grounds for discrimination have in more recent years since been expanded to include disability, sexual orientation, religion or belief, age, and trans-gender/sex, but the older law still applies and it was this older law which was being applied in the JFS case.

 

The problem was that the JFS (Jewish Free School) adhered to an admissions policy which avowedly took into account, not practice or beliefs but (matrilineal) descent from what UK law already recognises as a particular ethnic group.  In effect the protection given against anti-Semitic/Judaic words and action is double-edged ( or one might describe it as blindly impartial) in that it not only does it prohibit anti-Semitic action but might be said to prevent explicitly philo-Semitic action. None of the judges were happy with this result and clearly wished that they had not been involved in this inter-familial/religious dispute but they have to apply the law.   If the school had applied faith/belief/practice criterion (e.g. coming from an observant house-hold) its admissions policies would have passed muster.   But in applying a policy based on in effect the ethnicity of the mother of the pupil – albeit for religious reasons – the school breached race discrimination law.

 

I understand, I think, what Aidan is saying, but also think that we can concede that the U.K. court "applied the law" and that the relevant law here -- which imposes on this religious organization a distinction that the organization does not appear to endorse (i.e., "being Jewish" and "having certain Jewish beliefs") -- is troubling.  Thanks to Aidan for writing in.