We Jews worldwide are in number considerably fewer than half the margin of error in the Chinese census or, for that matter, India’s census. Yet, we are at the center of attention, a condition that should not be welcomed, and we have always been awash in questions of status. This is true of good times and bad times. When the going is good, there are those who seek to identify with us, while when there is persecution, there are those who flee Jewish identity. Either circumstance begets “Who Is a Jew?” issues. Because persecution invariably results in losses that generally are not reversible, the more enduring questions arise out of Jewish success.
From the time of Joshua and for many generations, there were converts whose embrace of Judaism was questionable. Later on, there were similar issues regarding Cutheans that remained up in the air into the Talmudic period. During the reigns of Kings David and Solomon, there were a great number of converts by religious courts of dubious authority. Their status, as the Talmud indicates and Maimonides set down in his Code, was to wait and to see how their attachment to Judaism developed over the years. After the reversal of fortune in the Purim narrative, we read that many embraced Judaism.
The lessons to be learned from this substantial experience are that questions of Jewish identity are familiar territory, so that issues that arise in the contemporary period are not unique, and, furthermore, that the unfolding of history will resolve status questions that are now contentious. This is true of the mountain of issues arising from the high degree of social mobility and the companion notions of tolerance and personal choice that have resulted in the extraordinarily high incidence of intermarriage, as well as other behaviors that inexorably result in questions of status.
For the moment, which may be an extended period, and with the exception of Israel – but not entirely even there – world Jewry has accepted a sociological rather than an halachic definition of Jewish identity. We include in our statistics a great many who do not meet the traditional criteria and do not include those whose halachic status is certainly Jewish yet who say that they no longer identify as Jewish. There are many persons around the world who according to halacha are Jewish but who do not know that they are Jewish because their parents or grandparents abandoned their faith.
As in the past, the passage of time will resolve matters that now seem blurred or are in dispute, I believe overwhelmingly in the direction of Jewish loss. However, conversions that do not conform to halachic standards will be more vexatious because in these situations there is often a strong desire to identify as Jewish. The point is made in the current issue of Mishpacha, the weekly that perhaps is the best English-language Jewish magazine anywhere. In an interview with Rabbi Hershel Schachter, the distinguished Rosh Yeshiva at Yeshiva University, we read: “Occasionally we have had talmidim (students) who subsequently discover that their mother had a Reform conversion or had no conversion at all. So then I get involved in gerus (conversion). All the rebbes over the years had situations where a boy was going for smichah (ordination) and then discovered that he wasn’t Jewish… We frequently have similar situations, which forced me to become involved in conversions.”
This brings me to the ruling a few days ago by Great Britain’s Supreme Court in the case involving the refusal of JFS, formerly the Jewish Free School, a highly regarded Modern Orthodox secondary school, to admit a 13-year old applicant whose mother was converted by what we would refer to as Conservative religious authority. By a split vote, the Lords and one Lady, ruled that this violated the country’s anti-discrimination law.
Each of the judges wrote an opinion and reading this substantial legal output is a remarkable experience because the jurists, especially those in the majority, were sensitive to the situation of the school and the standards of Orthodox Jewry, with its requirement of matrilineal descent or conversion by an Orthodox court. They recognized that the school did not intend to be discriminatory, but held that motivation was not a determining factor under the statute and that although religious schools could under English law refuse to admit applicants who were not of the their religious faith, the distinction between different modes of conversion amounts to an ethnic and not religious criterion and therefore is barred by law.
For all of the expressions of empathy, such as Parliament can change the law but we cannot, it’s difficult to grasp why JFS’s policy is labeled as ethnic and not religious. The ruling has upset much of English Jewry and not only the Orthodox. JFS has altered its admissions criteria to cover specific religious behaviors. It’s difficult to assess what further impact the ruling may have.
In view of changing social realities and attitudes in the U.S., Jewish day schools cannot avoid identity or status issues. A surprisingly large number of non-Orthodox schools admit children who are not Jewish by any definition, while there are Orthodox schools that admit applicants whose mothers were not born Jewish and were not converted by the Orthodox. This is the reality acknowledged by Rabbi Schachter and it is the approach in Chabad schools that have an outreach orientation. A generation ago, leading Orthodox Rabbinic leaders allowed such admissions under special circumstances, as when the aim was to make a school viable or to avoid conflict. Of course, such admissions could not be permitted to affect the character of the school or have a negative impact on other students. The thrust of this policy was to be faithful to the halachic system, even as individual circumstances may result in particular leniencies. In these situations, as with J.F.S. and other status issues, we need to be mindful that history will provide the answers.