Introduction to JFS
In the Introduction, it is noted that some of the key themes around which disagreements and conflicts about the meaning of religious freedom occur include: religious freedom conceived as an individual versus a collective right; the proper source(s) or philosophical basis of religious freedom as a human right; the place of minorities in a democracy and the protections accorded to them; the proper boundary between religion and state; and what religion is imagined to be in struggles over religious liberty. This case study by Heather Miller Rubens and accompanying analysis by Peter Danchin and Louis Blond vividly illustrate how these tensions and antinomies both animate and underpin the Judgment of the U.K. Supreme Court in the Jews’ Free School case.
For anyone seeking to teach or lecture on the contemporary law and politics of religious freedom, the JFS case presents at once a daunting challenge and rich source of pedagogic materials. The Judgment of the U.K. Supreme Court alone contains nine separate (majority, concurring and dissenting) opinions running to 91 pages and employs complex legal reasoning under British antidiscrimination law, in particular on the distinction between direct and indirect racial and ethnic discrimination under the Race Relations Act, 1976 (U.K.). For this reason, the case study carefully excerpts, organizes and annotates the opinions and explains their reasoning with an eye to classroom instruction and study by students.
In addition to providing edited and annotated versions of the judgments, the Rubens case study provides an introductory discussion of the context(s) in which the case arises. In particular, the question of what it means to say that “Judaism is a religion” and how this question relates to the rise of the modern nation state and reimagining of religion and religious laws in political and public life. The case study also provides a brief historical background on the JFS school and its admissions policy and criteria for determining Jewish status. In each section of the case study, a number of discussion questions are included for the purposes of generating classroom discussion and ideas for further research and inquiry.
The accompanying analysis by Danchin and Blond further pursues these themes by addressing the legal, ethical and philosophical dimensions of the Court’s reasoning. The article analyses the different logic and modes of reasoning of each of the majority, concurring and dissenting judgments and considers their implications in terms of the two key concepts that define contemporary religious freedom discourse: first that the state should be neutral towards religion and second, that religious freedom is a universal human right. Part I discusses the first concept returning to the question of Judaism as a “religion” and how this is contested and understood in terms of the prohibition on racial and religious discrimination in English law. Part II discusses the second concept and in particular the complex shifts and antinomies that occur in conceptions of normativity and authority when religious freedom is understood as a matter of individual right.
The article concludes by arguing that the JFS case illustrates the distinctive modalities of the exercise of modern secular power. In defining the meaning, scope, and dialectical relationship between the public sphere and individual rights, the Court can be seen to regulate and delimit what constitutes religion and a proper religious subjectivity as a matter of English law. This raises considerable anxieties amongst the judges themselves as the extent of intrusion of state law into the forum internum of the Jewish religion becomes visible whether axiomatically as a matter of direct discrimination or pursuant to the balancing of rights and interpretation of proportionality as a matter of indirect discrimination
Following the case study and commentary you will find both the original text of the Judgment of the U.K. Supreme Court and various annotated supplementary materials and articles from different disciplines which provide further context, background, analysis regarding the case.