In recent months, legal disputes on both sides of the Atlantic have made plain what a tortuous path the wall separating church and state traces. The Supreme Court of theUnited Statesheard arguments on Monday in Christian Legal Society v. Martinez. The Christian Legal Society (CLS), a student group at Hastings College of the Law in California, limits its voting membership to persons willing to sign an affirmation of orthodoxy and renounce sexual activity outside heterosexual marriages. Since 2006, Hastings has denied CLS institutional support, claiming that its membership requirements run afoul of California law and a university policy denying taxpayer-funded support to any group or institution that discriminates on the basis of race, religion, gender, or sexual orientation. CLS sued Hastings, claiming this denial amounts to religious discrimination and violates the groups First Amendment free-speech rights by requiring members to keep their consciences private or lose public recognition.Meanwhile, British Jews are coping with their Supreme Courts December ruling that a publicly funded Orthodox school, JFS, unlawfully discriminated on the basis of race in its admission policy. The Orthodox standard of Jewishness employed by JFS favors those born to Jewish mothers, regardless of observance, over those born to non-Jewish mothers, who must meet stringent standards of doctrinal and ritual observance to be considered Jewish. Because British law permits publicly funded faith schools to use religion as a criterion of admission but categorically forbids discrimination on the basis of race, the decision hinged on whether JFS and the Office of the Chief Rabbi (OCR) could articulate a principled distinction between an applicants religion and his race. It could not, and the majority opinion declared that by definition, discrimination that is based upon [the matrilineal] test is discrimination on racial grounds and therefore illegal.Orthodox faith schools had to discard the 3500-year-old matrilineal standard of Jewishness and devise tests of observance to determine applicants religious status without regard for ethnicity. Understandably, some commentators have expressed disappointment and unease at this ruling, believing it an unprecedented and possibly threatening incursion of the state into matters of faith. Several conservative commentators have connected the ruling to anti-Semitically motivated charges that Israel is a racist state. But the British judges took pains to distance themselves from the claim that Judaism is racist in the common, derogatory sense, insisting that they were simply applying the law as written without undue empathy for those affected, as liberal jurisprudence demands. Indeed, this case is a perfect example of the way that the liberal states blind application of the law frequently fails to bear equally upon all. While it is true that no other religions running faith schools are allowed to discriminate racially, it is equally true that British Orthodox Jews are being denied the right, enjoyed by other religions, to define their own membership criteria.
The principles of fairness and consistent application of the law are inadequate in this case. It was nonsense to ask British Jews to present a principled distinction between an applicants race and his religion. Although the New York Times notes that the ruling may also affect Sikh and Muslim schools, there are certain religions that, while hypothetically restricted by the British Race Relations Act of 1976, will never experience the restriction as a real constraint. Among these is mainstream Christianity. The distinction between church and state traditionally drawn by modern liberal secular states evolved in Christendom and was to a large extent encouraged by the rise of Protestantism. Not only did the Reformation challenge a church that had long enjoyed broad earthly authority; it did so by strenuously advocating a hard distinction between private conscience and public practice: a persons faith, though it may be expressed and confirmed by free fellowship, is essentially a personal matter. Religious faith is, above all, voluntary, something one chooses. The idea that it could be inherited by any means other than education is therefore anathema. Yet this idea is essential to Orthodox Judaism. This dispute is not only legal but also deeply political, more properly about what religion is than about the right of the state to intervene in how a religion operates, as the editor of Londons Jewish Chronical put it.In the American case, religious discrimination is precisely the problem (or one of them). The purpose of the affirmation of beliefs that CLS members must sign is to determine their religion according to the CLSs standards of orthodoxy. Arguably, the right to enforce some measure of Orthodoxy is essential to CLSand ultimately to any organization. Of course the criteria may generally be moot, as membership will largely self-select and marginalize unorthodox views. But it would threaten any groups purpose to accept large numbers of members dissenting from its mission. CLSs lawyer, Stanford law Professor Michael McConnell, suggested that it would be absurd to force an NAACP chapter to allow a racist skinhead to sit in on its planning meetings, and it does seem unlikely that either judges or voters would be happy with such an outcome. This comparison sidesteps a long-standing distinction between religious conscience and secular conscience: Greenpeace does not seem to be in any danger of being forced to admit disciples of Bjorn Lomborg. Still, McConnells point is well taken. To prohibit religious discrimination in student groups is at some point to prohibit religious student groups.Britian has recognized that certain (voluntary) forms of religious discipline can be a boon to public-education efforts. If we Americans want to codify this recognition by providing state support to extracurricular religious groups, well need to codify a boundary between bigotry and religion, and this will be tremendously controversial. If a fundamentalist Mormon group wanted to deny membership to blacks, the rest of us would probably all agree that such discrimination was based on irrational hatred. Yet even British judges were tempted to say that the law should be changed to accomodate Orthodox Jewish tradition in school admission policies. To some (like myself), the Christian Legal Societys bar against gays smacks of the same kind of bigotry bans on racial and gender discrimination are designed to marginalize. But McConnell argued that CLS discriminates only on the basis of belief, and CLSs membership policy bars unrepentant gays, presumably those who engage in homosexual acts. The CLS bar against gays is based implicitly upon a precept British law apparently already accepts, given its willingness to let rabbis define Jews by ritual observance as well as self-identification: that conscience manifests itself in action, and that people who dont act like Christians or Jews may be judged not to be so. Such judgmentsare bound to be disconcerting to those outside a religious tradition, but they arethe prerogative of groups of like-minded believers. Unless we feel comfortable allowing the state to adjudicate doctrinal arguments on their own terms, we might do best to avoid publicly funding religious groups of any kind.