Who Is a Jew? Court Ruling in Britain Raises Question
By SARAH LYALL
Published: November 7, 2009
LONDON — The questions before the judges in Courtroom No. 1 of Britain’s Supreme Court were as ancient and as complex as Judaism itself.
Who is a Jew? And who gets to decide?
On the surface, the court was considering a straightforward challenge to the admissions policy of a Jewish high school in London. But the case, in which arguments concluded Oct. 30, has potential repercussions for thousands of other parochial schools across Britain. And in addressing issues at the heart of Jewish identity, it has exposed bitter divisions in Britain’s community of 300,000 or so Jews, pitting members of various Jewish denominations against one another.
“This is potentially the biggest case in the British Jewish community’s modern history,” said Stephen Pollard, editor of the Jewish Chronicle newspaper here. “It speaks directly to the right of the state to intervene in how a religion operates.”
The case began when a 12-year-old boy, an observant Jew whose father is Jewish and whose mother is a Jewish convert, applied to the school, JFS. Founded in 1732 as the Jews’ Free School, it is a centerpiece of North London’s Jewish community. It has around 1,900 students, but it gets far more applicants than it accepts.
Britain has nearly 7,000 publicly financed religious schools, representing Judaism as well as the Church of England, Catholicism and Islam, among others. Under a 2006 law, the schools can in busy years give preference to applicants within their own faiths, using criteria laid down by a designated religious authority.
By many standards, the JFS applicant, identified in court papers as “M,” is Jewish. But not in the eyes of the school, which defines Judaism under the Orthodox definition set out by Jonathan Sacks, chief rabbi of the United Hebrew Congregations of the Commonwealth. Because M’s mother converted in a progressive, not an Orthodox, synagogue, the school said, she was not a Jew — nor was her son. It turned down his application.
That would have been the end of it. But M’s family sued, saying that the school had discriminated against him. They lost, but the ruling was overturned by the Court of Appeal this summer.
In an explosive decision, the court concluded that basing school admissions on a classic test of Judaism — whether one’s mother is Jewish — was by definition discriminatory. Whether the rationale was “benign or malignant, theological or supremacist,” the court wrote, “makes it no less and no more unlawful.”
The case rested on whether the school’s test of Jewishness was based on religion, which would be legal, or on race or ethnicity, which would not. The court ruled that it was an ethnic test because it concerned the status of M’s mother rather than whether M considered himself Jewish and practiced Judaism.
“The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act,” the court said. It added that while it was fair that Jewish schools should give preference to Jewish children, the admissions criteria must depend not on family ties, but “on faith, however defined.”
The same reasoning would apply to a Christian school that “refused to admit a child on the ground that, albeit practicing Christians, the child’s family were of Jewish origin,” the court said.
The school appealed to the Supreme Court, which is likely to rule sometime before the end of the year.
The case’s importance was driven home by the sheer number of lawyers in the courtroom last week, representing not just M’s family and the school, but also the British government, the Equalities and Human Rights Commission, the United Synagogue, the British Humanist Association and the Board of Deputies of British Jews.
Meanwhile, the Court of Appeal ruling threw the school into a panicked scramble to put together a new admissions policy. It introduced a “religious practice test,” in which prospective students amass points for things like going to synagogue and doing charitable work.
David Lightman with his daughter, who was denied admission to the Jews' Free School because her mother's conversion was not recognized. But a court ruling has voided the admissions policy.
Posted: Sun 15 Nov 2009 03:06 Post subject: Jewish identity and maternal descent
I recommend reading Shayne Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (1999). This maternal descent idea was unknown during the Biblical period. There is also evidence that many European Jewish communities descend from Jewish merchants who married local women and raised their children in the Jewish religion.
Identity politics in late antiquity:
Self-definition is not a new problem, Shaye Cohen says
By Ken Gewertz
Gazette Staff
For most people, the world of late antiquity can hardly be said to be a subject of pressing and immediate concern, unless of course it happens to be the setting for a film about an indomitable gladiator or the internecine struggles of decadent aristocrats.
Surely then, the efforts of one group of people within the Roman world to reconstruct their shattered identity through literary means following a crushing military defeat would seem on face value to have even less chance of grabbing the attention of non-specialists.
But for Shaye Cohen, the recently appointed Littauer Professor of Hebrew Literature and Philosophy in the Department of Near Eastern Languages and Civilizations, the subject of Jewish identity from the first century B.C.E. to the third or fourth century of the Common Era is not only fascinating in itself but has many parallels with the efforts of people in our own pluralistic and secular society to preserve ethnic or religious identities.
"The question of who is a Jew is actually of broader interest because American society is in fact bedeviled by this question, not only who is a Jew, but who is black, who is Native American, who is Chinese, and what do these categories mean, and how do we have a society that claims to be unified on the one hand and on the other celebrates difference?"
Cohen's colleagues recognize the innovative nature of his work and are delighted that he has joined the department.
"He is widely recognized as one of the leading historians of the period from the Maccabees to the Mishnah - four or five hundred years of Jewish history," said James Kugel, the Harry Starr Professor of Classical, Modern Jewish and Hebrew Literature and professor of comparative literature. "He asks very provocative questions, like, What was Jewish identity in this period? Can we put our finger on the point when it changed from being a resident of a certain territory and became an adherent of a religion?"
Peter Machinist, the Hancock Professor of Hebrew and Other Oriental Languages, praised Cohen for his familiarity with both classical literature and the difficult, often confusing texts of early rabbinic Judaism.
"The Jewish sources from this period are immense in quantity and very hard to make sense of, but he has mastered them beautifully. But at the same time he's a first-rate classical scholar, which you need to understand the larger world in which Judaism took shape," Machinist said.
Cohen's interest in questions of Jewish identity came about through the intersection of his training as a historian with his own personal concerns as a 20th century Jewish American.
"I am part of the American Jewish community," he said. "That's part of who I am, my own self-definition. And American Jews are very much concerned with self-identity - who is a Jew, the future of the community, the boundaries between Jews and gentiles. So at some point about 20 years ago, it occurred to me, gee, these are interesting questions. Wouldn't it be fun to see how the same questions might have played out in the period of antiquity, the period of my alleged expertise?"
One result of this project is his book "The Beginnings of Judaism" (University of California Press, 1999), in which Cohen remarks on the parallels between our world and the world in which Jews lived before Rome's crushing defeat of the Jewish revolt, culminating in the traumatic destruction of the great Temple in Jerusalem in 70 C.E.
Before this defeat, Jews lived under the Pax Romana, in which a multiplicity of faiths were tolerated. The Temple was presided over by a high priest, but he had very little power to compel Jews to worship or to specify how they worshipped. Then as now, participation was voluntary.
Cohen's book compares texts from this earlier period - the writings of Greco-Jewish writers like Philo and Josephus, the Qumran texts (Dead Sea Scrolls), and the books of the New Testament (written at a time when Christianity was to a large extent a radical offshoot of Judaism) - with later texts like the Mishnah and Tosefta, written chiefly in Aramaic and Hebrew. It was during this later period that the rabbis, through their writings and through their growing influence within the Jewish communities of the early Diaspora, became the dominant force in Jewish life.
"Nowadays we're living in a post-rabbinic world, after rabbinic hegemony has more or less disappeared, and most Jews do not accept the self-evident truths of rabbinic Judaism and rabbinic norms, while the period of antiquity is pre-rabbinic. The rabbis had not yet achieved hegemony. The rabbinic system had not yet been codified and systematized and institutionalized."
But where did the rabbis come from and how did they achieve such influence? The question is almost impossible to answer given the fact that virtually no biographical material exists on these individuals who had such a profound effect on the development of the religion. But it is possible to make inferences about the nature of their contribution.
"Rabbinic Judaism and rabbinic texts clearly come from somewhere. They didn't just begin from scratch around the year 100 or so. They carried forward a legacy of what had been there earlier. But by the same token there is a lot there that's new. The rabbis are not creating a new Judaism - I think that's too strong - but they certainly are creating a new Jewish culture."
Cohen shows how the rabbis set down explicit, systematic rules and procedures for situations characterized in earlier times by ambiguity or diversity. For example, they defined for the first time the procedure by which gentiles could convert to Judaism, and they established the principle that Jewish identity is inherited through the mother, thus clarifying the status of children of mixed marriage.
"If you look at pre-rabbinic texts, they do not yet have anything remotely approximating the clarity and systemization that we find in rabbinic texts. And I as a historian argue that the rabbis made it up. It's not ancient tradition from Mt. Sinai. The rabbis are creative, they are thinkers, they are innovators, they are alive. They're not just museum custodians, they are creating something."
More recently, Cohen has been studying the place of women in Judaism, focusing this time on European Judaism in the high Middle Ages. He has written several articles on the menstrual taboo in Judaism and has recently begun work on a book-length project on gender differences within the religion, focusing especially on the ritual of circumcision.
Much of the material he is studying comes out of a centuries-old debate between Christian writers attacking Judaism and the response by Jewish writers defending their religion. One point concerns the issue of baptism. Christian writers have said that their religion is more inclusive because they baptize both men and women. Jews only circumcise men. How then do women become Jews?
Most of the Jewish writers answer this question from a traditional, paternalistic viewpoint: men are the ones who bear the full weight of the Commandments and the Torah while women are adjuncts. But there are other, more imaginative answers.
Cohen was particularly struck by the writings of one 12th century rabbi who said that women don't need to be circumcised because they follow the regimen of menstrual purity, the cleansing monthly bath or mikvah. His argument thus equates menstrual blood with the blood of circumcision, an idea that has been elaborated by modern anthropologists.
"That I thought was mind-blowing, not only because it anticipates anthropology, but because it takes menstrual bleeding, which in rabbinic culture had always been a powerful symbol of impurity and pollution and somehow gives it a positive valence and says that it is now covenant. It doesn't mean that the rabbis are radical freethinkers, but within the confines of the tradition they certainly are intellectually alive."
In DNA, New Clues to Jewish Roots
By NICHOLAS WADE
Published: Tuesday, May 14, 2002
A new thread is being woven into the complex tapestry of Jewish history, a thread fashioned from a double twist of DNA.
The DNA data suggest a particular version of Jewish history and origins that historians have not yet had time to appraise but that seem to be reconcilable in principle with the historical record, according to experts in Jewish studies.
The emerging genetic picture is based largely on two studies, one published two years ago and the other this month, that together show that the men and women who founded the Jewish communities had surprisingly different genetic histories.
The earlier study, led by Dr. Michael Hammer of University of Arizona, showed from an analysis of the male, or Y chromosome, that Jewish men from seven communities were related to one another and to present-day Palestinian and Syrian populations, but not to the men of their host communities.
The finding suggested that Jewish men who founded the communities traced their lineage back to the ancestral Mideastern population of 4,000 years ago from which Arabs, Jews and other people are descended. It pointed to the genetic unity of widespread Jewish populations and took issue with ideas that most Jewish communities were relatively recent converts like the Khazars, a medieval Turkish tribe that embraced Judaism.
A new study now shows that the women in nine Jewish communities from Georgia, the former Soviet republic, to Morocco have vastly different genetic histories from the men. In each community, the women carry very few genetic signatures on their mitochondrial DNA, a genetic element inherited only through the female line. This indicates that the community had just a small number of founding mothers and that after the founding event there was little, if any, interchange with the host population. The women's identities, however, are a mystery, because, unlike the case with the men, their genetic signatures are not related to one another or to those of present-day Middle Eastern populations.
The new study, by Dr. David Goldstein, Dr. Mark Thomas and Dr. Neil Bradman of University College in London and other colleagues, appears in The American Journal of Human Genetics this month. Dr. Goldstein said it was up to historians to interpret the genetic evidence. His own speculation, he said, is that most Jewish communities were formed by unions between Jewish men and local women, though he notes that the women's origins cannot be genetically determined.
''The men came from the Near East, perhaps as traders,'' he said. ''They established local populations, probably with local women. But once the community was founded, the barriers had to go up, because otherwise mitochondrial diversity would be increased.''
In ancient Israel, the Jewish priesthood was handed from father to son. But at some time from 200 B.C. to A.D. 500, Jewish status came to be defined by maternal descent. Even though the founding mothers of most Jewish communities were not born Jewish, their descendants were.
''It's precisely that custom that allows us to see these founding events,'' Dr. Goldstein said.
Like the other Jewish communities in the study, the Ashkenazic community of Northern and Central Europe, from which most American Jews are descended, shows less diversity than expected in its mitochondrial DNA, perhaps reflecting the maternal definition of Jewishness. But unlike the other Jewish populations, it does not show signs of having had very few female founders. It is possible, Dr. Goldstein said, that the Ashkenazic community is a mosaic of separate populations formed the same way as the others.
Dr. Harry Ostrer, a medical geneticist at New York University, said the 26 specific genetic diseases found among Ashkenazim, usually attributed to ''founder effects,'' could be explained by the idea of a mosaic of small populations. A founder effect amplifies any mutation present in a small population that later expands.
''He has really opened up the door for some very interesting work,'' Dr. Ostrer said.
The idea that most or all Jewish communities were founded by Jewish men and local women is somewhat at variance with the usual founding traditions. Most Jewish communities hold that they were formed by families who fled persecution or were invited to settle by local kings.
For instance, Iraqi Jews are said to be descended from those exiled to Babylon after the destruction of the First Temple in 586 B.C. Members of the Bene Israel community of Bombay say they are the children of Jews who fled the persecutions of Antiochus Epiphanus, who repressed the Maccabean revolt, around 150 B.C.
Most of those founding narratives do not have strong historical support. Dr. Lawrence H. Schiffman, professor of Hebrew and Judaic studies at New York University, said the new genetic data could well explain how certain far-flung Jewish communities were formed. But he doubted that it would account for the origin of larger Jewish communities that seemed more likely to have been formed by families who were fleeing persecution or making invited settlements.
Dr. Shaye Cohen, professor of Jewish literature and philosophy at Harvard, said the implication of the findings and the idea of Jewish communities' having been founded by traders, was ''by no means implausible.''
''The authors are correct in saying the historical origins of most Jewish communities are unknown,'' Dr. Cohen said. ''Not only the little ones like in India, but even the mainstream Ashkenazic culture from which most American Jews descend.''
In a recent book, ''The Beginnings of Jewishness,'' Dr. Cohen argued that far-flung Jewish communities had adopted the rabbinic teaching of the matrilineal descent of Jewishness soon after the Islamic conquests in the seventh, eight and ninth centuries A.D.
One part of the Goldstein team's analysis, that matrilineal descent of Jewishness was practiced at or soon after the founding of each community, could fit in with this conclusion, Dr. Cohen said, if the communities were founded around this time.
The data being generated by Dr. Hammer, Dr. Goldstein and other population geneticists touches on the delicate issue of whether Jews can be considered a race. Dr. Cohen noted that the Nazis and their anti-Semitic predecessors had argued that Jews were a race and therefore irreconcilable with the host community and that Jews had in response argued they were not, because they admitted people by conversion.
If the founding mothers of most Jewish communities were local, that could explain why Jews in each country tend to resemble their host community physically while the origins of their Jewish founding fathers may explain the aspects the communities have in common, Dr. Cohen said.
Despite the definition of Jewishness as being born to a Jewish mother, and the likelihood of some continuity between ancient and modern populations, it has not until recently been clear that genetics had anything much to contribute to questions of Jewish identity.
Some scholars suspected that Jewish communities had through intermarriage or conversion become little different from their host populations. Many say they believe that even if Jews are a group definable in ethnic, as opposed to cultural or religious terms, it is either impossible or unwise to define an ethnic group genetically.
Dr. Schiffman said that as president of the Association for Jewish Studies he would consider convening a discussion between the geneticists and the historians on interpreting the new data. He noted that the study of racial differences had led to disaster in the past but that the new analysis of genetic differences was ''a form of racial science for the good, rather than the bad.''
''Racial science,'' Dr. Schiffman said, ''has brought so many terrible things. But it's a norm now in genetics to study the racial genetics of groups. So I think it's an amazing difference.''
Geneticists use the Y chromosome and mitochondrial DNA to track the movement of populations because each is passed unchanged from parent to child, escaping the genetic shuffle that occurs on the rest of genome between generations. Since the Y chromosome passes down only from father to son, and mitochondrial DNA is always inherited from the mother alone, the two elements serve to track the genetic history of men and women respectively.
But since the Y chromosome and mitochondrial DNA clock up occasional changes or mutations every thousand years or so, on much the same time scale as human population splits, different ethnic groups tend to have characteristic patterns of mutations.
The Y chromosome and mitochondrial DNA's in today's Jewish communities reflect the ancestry of their male and female founders but say little about the rest of the genome, which is by now a presumably well mixed set of genes contributed by all the founders of each community.
Noting that the Y chromosome points to a Middle Eastern origin of Jewish communities and the mitochondrial DNA to a possibly local origin, Dr. Goldstein said that the composition of ordinary chromosomes, which carry most of the genes, was impossible to assess.
''My guess,'' Dr. Goldstein said, ''is that the rest of the genome will be a mixture of both.''
Chart/Map: ''How a Diaspora Grew'' Contemporary Jewish populations have origins in three areas: the Iberian peninsula, northern Europe and the Middle East. DNA analysis finds most Jewish communities genetically distinct from neighboring populations, suggesting origins that differ from those given in traditional histories. In the 20th century (not shown), there were major migrations to the Americas and Israel. Map of Europe, Asia, and Africa highlighting early migration routes and the following three locations: Ashkenazi GERMANY Sephardic SPAIN Middle Eastern PALESTINE/ISRAEL (Source: Nature Genetics)
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