Ironies and opportunities: reflections on the JFS ruling

Last week, the new Supreme Court of the UK dismissed the appeal of JFS, an Orthodox Jewish school, against a judgment that had branded its admission policy discriminatory. The details of the case (which hinged on how the Law views the unique blend of ethnicity and religion that defines Jewishness in the context of the Race Relations Act) are mystifying even to insiders; the final result is deeply disappointing.

Despite this, there are fascinating and surprisingly positive aspects to the judgment, as well as some delicious ironies that cannot go unmentioned. The ruling itself, which was handed down by only the slimmest of majorities (5-4) offers the most extraordinary vindication of Judaism, the motivation of the Chief Rabbi and of the governors of JFS. Is it not remarkable that Lord Phillips, the president of the court, should open a judgment about Jewish status with excerpts from Deuteronomy about intermarriage? All of the justices asserted that the Chief Rabbi (who is the arbiter of Jewish status for the Orthodox community) acted in the best possible faith and that ‘no-one doubts that he is honestly and sincerely trying to do what he believes that his religion demands of him’. The governors of JFS were also deemed ‘entirely free from moral blame’. Put simply, despite falling foul of the Law, the school’s admission policy, and, by extension, Judaism itself, are not ‘racist’ according to any normative understanding of the word.

Yet the greatest irony is the justices’ realisation, in the words of Lord Phillips, ‘that there may well be a defect in our law of discrimination’. How astounding that legislation drafted to outlaw anti-Semitism, among other evils, has been utilised to achieve what Lord Rodger calls, ‘such manifest discrimination against Jewish schools in comparison with other faith schools’. Catholics and Muslims are entitled to admit children to their schools according to their faith criteria, but following yesterday’s ruling, Orthodox Jews are now not. Lady Hale, who, incidentally, voted against JFS, reflected on whether Jews ‘should be allowed to continue to follow [Jewish] law’ in this regard. Indeed, could one fail to agree with Lord Rodger’s assertion that ‘one can’t help feeling that something has gone wrong’? It is good news that several of the justices felt that there may be a problem with the law. However, while any legislative remedy will certainly be very challenging, we will need to muster the support of those who are able to influence this process to ensure that Judaism is treated on a par with other faiths.

Jewish schools like JFS will now have to continue with the chaotic practice test forced upon them by the ruling. While compliance is, of course, mandatory, it undermines everything that the Jewish schools’ movement holds dear: the universal delivery of Jewish education to Jewish children regardless of practice or affiliation. Yet the Jewish community is renowned for its resourcefulness and ability to turn a crisis into an opportunity. Orthodox synagogues have been inundated with new families seeking schools’ ‘practice certificates’ for their children. Many have no previous affiliation to the Jewish community and their attendance at the synagogue is an unparalleled chance to reach out to them and share with them the beauty of Jewish life and observance. It may well be that this unwanted and unfortunate decision has quite unexpected consequences.

Isn't our meat good enough for you?

A rabbi goes to heaven and is invited to sit at a banquet attended by Moshe himself. He makes a discreet enquiry and discovers that the food is under Divine supervision. The rabbi whispers in a waiter’s ear, ‘I’ll take the fish!’

Many people are puzzled by the suggestion that a rabbi might endorse some area of religious life but be reluctant to partake in it himself. For example, it troubles people that some rabbis won’t eat from certain kosher butchers; others won’t carry on Shabbat, even inside an area enclosed by an ‘eruv’. One hears the obvious concerns about inconsistency expressed in blunt terms: ‘is it kosher or not? If it’s kosher why won’t you eat it, and if it’s not kosher, why should I?’

It is not possible to make sense of this phenomenon without examining some of the underlying principles of halachah – Jewish law – and how they differ from common assumptions. Some rabbis, for whatever reason, have been unwilling to teach these ideas, perhaps considering them too uninteresting or abstruse for the average Anglo-Jew. I disagree. Indeed whenever I have tackled this topic, be it in conversation, writing or public lecture, it has been met with appreciation and, I hope, greater understanding.

Jewish law is fascinating and complex. Even the word ‘halachah’ (lit. a way to go) indicates a process rather than a ruling. It is a complete system that regulates every area of life, from the mundane to the most profound. Halachah cares not only how we act, but also how we think and feel about ourselves, other human beings, the world itself, and, of course, God. As such, it is all-encompassing in its scope and the opportunity that it gives us to maximise every instant, imbuing it with meaning and purpose. From cradle to grave, boardroom to bedroom, halachah is ever-present, allowing every moment to be experienced through the lens of the Divine.

Yet the comprehensive nature of halachah should not be confused with the desire to create a monolithic society in which everyone behaves identically. Indeed, disagreeing is the halachists’ favourite pursuit: unresolved arguments appear on each page of the Talmud and halachic code; in fact, there is only one chapter (in over 500) in the entire Mishnah that doesn’t contain a disagreement! While there are, naturally, established processes by which practical decisions are made, halachah might best be described as ‘organised disorder’ – a vast array of disagreements built on earlier disagreements. Some view this as an insanely unworkable system; others, me included, consider it to be one of Judaism’s greatest strengths. Disorder and multiplicity indicate range and diversity and are actually powerful tools that allow halachah to be applied in a responsive and case-driven manner, rather than as a blunt, insensitive instrument.

For example, there is an ancient dispute between major kashrut authorities concerning the pulmonary condition of cattle. While some overlook certain lesions of the lung, others (notably Rabbi Yosef Caro, author of the Shulchan Aruch) are of the opinion that animals with such lesions are forbidden. This unresolved disagreement broadly manifests itself in a disparity of practice between Ashkenazim (lenient) and Sephardim (stringent). Yet, understandably, many Ashkenazim choose to be stringent. Another example of this phenomenon is the mediaeval dispute about the distinction between a private domain (where one may construct an ‘eruv’) and a public domain (where one may not). This disagreement resurfaces throughout halachic literature and influences the approaches of modern experts as to where and how one may create an eruv.

Although there are well-established community norms in almost every area of law, we have shown that halachah does not offer a single answer to any legal issue, but an array of possibilities, within a carefully defined framework. Because of this, halachah is able to deal not just with ‘regular’ circumstances, but is flexible enough to accommodate emergency shortages, unexpected financial hardship, and the needs of the spiritually sensitive.

Despite the intricacies involved, Jewish life is greatly enriched by the application and validation of this multiplicity.

Talmudic sources conflict about whether the halachist should incline to leniency or stringency: ‘the power of leniency is preferable’ (Brachot 60a) appears to be contradicted by any number of Talmudic statements. Yet there really is no argument, as it is a given that the rabbi is to be lenient when ruling for others, yet stringent for himself and those who are striving for spiritual perfection. After all, his job is to make Jewish life as manageable, enjoyable and uplifting as possible. This demands leniency, where possible, especially when nurturing the spiritual needs of a disparate community. While there are many complex factors at play, inclusivism seems to me to be critical: given the constituents of a community, a ruling (certainly always based on proper sources and expert advice) must enable as many people as possible to observe their Judaism and feel comfortable within it.

This doesn’t always mean being lenient: a stricter ruling will sometimes be more inclusive, but it is obvious that responsible rabbinical leadership must always incline to leniency when regulating public religious services such as butchers’ shops. Ill-conceived stringency could result in price increases, restricted availability and fewer people observing kashrut. The same applies to building an eruv: the advantages of a community eruv are so clear that they outweigh the need to accommodate every halachic view, which might result in not building it at all.

Well-founded leniencies are squarely within the boundaries of halachah; yet this does not mean that everyone will want to rely on them. Halachah accommodates (and even celebrates) a range of practices for different circumstances and there have always been individuals who have elected to follow stringent practices. Yet while it is entirely reasonable for rabbis to adopt personal stringencies, they certainly ought to explain what they’re doing and why!

A version of this article first appeared in the Jewish Chronicle

Letter to Jewish Chronicle July 2009

I sent the following letter for publication to the Jewish Chronicle. It appeared in part in today's edition.

Dear Sir

I write to thank Rabbi Tony Bayfield for unequivocally supporting the Chief Rabbi in his attempt to fight the recent Appeal Court ruling against JFS. Rabbi Bayfield’s admirable response illustrates a point I made in my recent JC article – that acknowledging our differences, rather than pretending that they can be smoothed over, enables us to work together on issues that impact on us all. Unlike your columnist, the predictable Mr. Alderman and a number of other ill-informed correspondents, Rabbi Bayfield understands that the JFS ruling rejects the definition of Jewishness accepted by every Jewish movement in the UK, not just the Orthodox, as it insists that Jewishness is defined by practice, not by descent or conversion by any standard. By this criterion, a Sabbath-observant member of ‘Jews for Jesus’ is considered more Jewish than a non-observant born Jew or one converted by any movement. It is lamentable that so many have used this nadir in Anglo-Jewish history to attack the Chief Rabbi, when the ruling so obviously equally affects his detractors, whose interests he is fighting hard to protect.

Yours faithfully

Harvey Belovski (Rabbi), Golders Green Synagogue, 41 Dunstan Road, NW11 8AE

JCoSS: not cross-communal; at best non-Orthodox

The imminent opening of JCoSS (Jewish Community Secondary School) has generated unprecedented interest. Adorned with the slogan ‘excellence, choice, openness, inclusion’, its website describes it as ‘the first cross-communal Jewish secondary school in the UK’. JCoSS takes pride in its admissions policy, which ‘will treat on an equal basis all pupils recognised as Jewish by any of the UK’s mainstream movements’ and its intention to deliver Jewish studies ‘while being non-judgemental between the various mainstream Jewish traditions’.

JC readers will not be surprised to discover that ‘JCoSS worries Orthodox (United Synagogue) rabbis’ (14/05), nor that in a spurious comparison with Limmud, Miriam Shaviv (21/05) opined that rather than fighting a war already lost, the rabbinate should ‘face facts’ and ‘embrace JCoSS’. The battle-lines seem drawn already.

Before exploring further, I acknowledge the certainty that numerous children from US-type homes will attend JCoSS. However the Orthodox rabbinate might prefer the world to look, we will support and nurture the Jewish lives of our communities’ children, irrespective of the educational choices made for them by their parents. It is no secret that in a rare display of virtual unanimity, US rabbis have strongly opposed formal involvement with JCoSS. Yet this has no bearing on our commitment to our children in the school. There is spirited and evolving debate about how to achieve this: some will run out-of-school programming; others are grappling with alternatives to support JCoSS pupils. And it is with deep sadness that we currently feel unable to work within JCoSS: this painful decision is informed by real concern for our children expressed in the context of legitimate anxieties about its identity.

Unfortunately, behind the happy ‘cross-communal’ picture painted by JCoSS’s professional website and cautiously-worded literature, there lies a confused ideology that conflicts squarely with basic Orthodox principles.

I am certain that JCoSS will indeed try to teach its pupils ‘about all the mainstream traditions within Judaism’, in a non-judgemental way and ‘to understand and respect all the UK’s mainstream Jewish traditions’. This inclusivism may even succeed at a practical level - the school intends its kitchens to be kosher and its weekend programmes to be Shabbat-observant, even if it can’t commit to closing on second-day Yom Tov. But ideologically this descends into pluralistic incoherence. Presumably, pupils will be taught that some believe the Torah to be the unmediated word of God, while others think that it was authored by human beings; that some consider traditional Shabbat restrictions to be optional, but others consider them absolutely binding; that while the Torah itself expressly forbids certain types of relationships, some movements consider them to be valid life-options. And while this dissent is simply a statement of fact, the ethos of JCoSS demands that each of these contradictory options is taught as equally legitimate. Apart from the obvious fact that children need certainty, a sense of imperative and firm ideas to help them build a meaningful connection to their faith, this type of pluralism is theologically untenable from an Orthodox perspective.

In a seminal 1990 essay, later developed into ‘One People’ (Littman 1993), the Chief Rabbi masterfully explains the ‘incoherence of pluralism’ by observing that it ‘presupposes the absence of absolute or normative truth and hence the falsehood of Orthodoxy’. Orthodoxy stakes its being on the existence of some truth that transcends the relativities of time. This is the rock on which pluralism founders… Where truth and falsity are at stake, the idea that both sides of a contradiction are true is itself a contradiction’.

A school whose raison d’être is the validation of conflicting stances on key issues of belief and practice must be considered at best non-Orthodox; in reality it is theologically completely and irreconcilably at odds with Orthodoxy. In that landmark essay, the Chief Rabbi demonstrates that ‘the literature (on pluralism) proceeds on the explicit or hidden premise that Orthodoxy is false’. The somewhat clumsy phrase ‘pan-non-Orthodox’ is a more theologically accurate description of JCoSS than ‘cross-communal’.

I understand the motivation of JCoSS’s founders. The educational world is dominated by Orthodoxy: in varying degrees, the non-Orthodox denominations disagree with Orthodox beliefs and practices, and most acutely with its definition of Jewishness. Why shouldn’t they create a school that incorporates their brands of Judaism? Actually, JCoSS acknowledges that in the event of over-subscription, it will prioritise those ‘who are not considered to be halachically Jewish by… all other Jewish schools’ – i.e. children considered Jewish only by the non-Orthodox. I respect their objectives, albeit tempered by genuine concern for the children of US communities, but I challenge the founders of JCoSS to reciprocate that respect by abandoning the term ‘cross-communal ’ in favour of a more candid representation of their school’s ideology. And I reach out with love to potential parents and urge them to recognise that they may be inadvertently depriving their children of their Torah heritage.

Unsurprisingly, JCoSS has provoked an identity crisis for the United Synagogue. The US has always been good at asserting what it isn’t (too frum, too Zionist, etc.), but imprecise when stating what it actually stands for. Are we too afraid of the consequences to admit that even the welcoming, inclusivist version of Orthodoxy that we champion has clear beliefs and some ‘hard edges’? Sometimes it is necessary to state the obvious: pluralism and Orthodoxy are antithetical. In the words of the Chief Rabbi, ‘pluralism is no more tolerant than Orthodoxy’, since ‘each represents a way of viewing the relationship between belief and truth, and each excludes the other’. We need not be scared of this truth, nor be anything other than respectful of others, such as the founders of JCoSS, who advocate pluralism. Again, the Chief Rabbi’s words seem prescient: ‘the search for unity does not resolve the tensions in the Jewish world. Instead it merely reproduces them’. Failing to articulate the unbridgeable gulf between Orthodoxy and pluralism misrepresents both ideologies and creates false hope for a unified Jewry. In fact, I believe that it hinders cross-communal cooperation in those areas where it is possible.

A version of this article first appeared in the Jewish Chronicle.

Rabbi in Israel - War in Gaza

I am sitting in the National Library at the Hebrew University on the third day of a visit to Israel. I am in here to catch up with young people from my community who are studying at various institutions in Israel, but have dedicated today, the Fast of Tevet, to rest and to some private study. Yet instead, I feel motivated to write a short post about the atmosphere here. In the interests of brevity, here are a few points that have stuck in my mind:

• Every minyan I have visited is saying a 'Kapitl Tehillim' - a chapter of psalms - after each service, every day, followed by a prayer for the wellbeing of Jews everywhere. For your interest, so far I have been to a shteibl in Meah Shearim, the minyan of a prominent Chassidic Rebbe, a religious Zionist Shul and the minyan at the Hebrew University library.
• There is a hand-written note pinned to the door of the lift in the building where I am staying, advertising opportunities to send non-perishable food to soldiers in Gaza. Apparently, there are many such notices, as well as those volunteering to deliver the goods.
• I spoke yesterday to the head of a 'hesder' yeshivah; some of his students have been drafted and he is expecting most of the rest of the yeshivah to be called in the event of a prolonged or expanded conflict. This is the vision of the 'hesder' programme: enabling its students to combine Torah learning with military duty.
• I also spoke yesterday to a prominent so-called anti-Zionist rabbi who told me that he has encouraged his community to recognise what he called the 'miracle' in the south of Israel: the incredibly few casualties in the wake of 1000s of rocket attacks. He pointed out to me that while many in the Israeli media are observing that this is 'abnormal', that is insufficient - we must see the hand of God in this phenomenon.
• How meaningful the additional prayers for the fast day seemed this morning; the primary purpose of a fast day is introspection - I found this rather more manageable than usual. These selichot also contain texts that were, perhaps, easier to absorb than usual: references to the siege on the Holy Temple and our hopes that fast days will be transformed into moments of rejoicing.
• I was particularly startled by the word חמסנו - we have acted aggressively - which appears in the alphabetic confession said on fast days (every day in some communities). והמבין יבין.

I am impressed by the sense of calm and normality which seems to exist. Of course, for those with husbands or other family members in the IDF or who live close to the area of hostility, it must be a nerve-wracking time, yet Israelis have learned (sadly) to live normally, despite stress and uncertainty. But most of all, I am struck by the sense of unity and real care and fervent hope expressed by everyone here, of whatever stripe or allegiance within the religious community. I'm pleased that I've been here during this difficult time, as I've learned a lot of good things about Israelis and Israeli society.

May the hostilities end soon and the casualties be very few. May we also value the precious unity that this campaign has engendered and realise that it needn't take a war...