"Jews Lose": The UK Case

I have periodically remarked upon the "Jews lose" attribute of American free exercise doctrine -- namely, that across the entire history of the First Amendment (1789 - present), Jews have never won a free exercise (or RFRA) case in front of the United States Supreme Court. Indeed, religious minorities in general fare exceptionally poorly when presenting such claims before the highest court in the land. The only cases I can think of where a non-Christian claimant has successfully won a religious accommodation claim before the high court are Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (the Santeria religion in Hialeah fuses elements of Christianity with native African and Caribbean religions). For the most part, though, Jews (and other religious minorities) lose.

I'm less familiar with the contours and history of anti-discrimination law in the UK. Still, I was surprised (and, on reflection, am surprised that I was surprised) to find out that Jews have never won a reported discrimination (race relations) case against non-Jewish defendants in the history of the United Kingdom (at least dating from the inception of modern anti-discrimination law). The only successful discrimination prosecution by a Jewish plaintiff was a "Jew-on-Jew" case in 2009 (concerning matrilineal Jewish lineage as an admissions requirement for a Jewish school). The linked book is Didi Herman's An Unfortunate Coincidence: Jews, Jewishness, and English Law, which looks absolutely fascinating -- unfortunately, I've only been able to get a taste of it through google books' limited preview (this review by Martin Lockshin provides a decent summary). Herman argues that not only do Jews consistently lose in UK courts, but the court when dealing directly with Jews treat both the people and the community with disdain bordering on outright antipathy. Anyone familiar with the Ronnie Fraser ruling is intimately familiar with the form.

One interesting element I was able to glean from the bits I read, however, is that the generally shabby treatment of British Jews in the courts is not just unrecognized by British society; they pretty much assume the opposite. Protection of Jews is viewed as a model through which other groups also can make claims; so one sees arguments of the form "we protect Jews, so why not also protect Sikhs, or Muslims, in the same [assumed to be robust] way?" Protections for other groups are expanded on the presumption that they're getting the same thing as Jews, when in reality those decisions seem to be considerably more expansive than what Jews actually receive. I obviously favor giving both Muslims and Sikhs robust anti-discrimination protection. But the actual practice here is problematic -- it operates under a presumption that Jews represent an anti-discrimination "have" that is unexamined and apparently unfounded. It is axiomatic that Jews are protected -- perhaps too much so, perhaps we are too quick to indulge them when they "cry anti-Semitism". Viewing Jews as the quintessential protected group, courts that in fact consistently deny Jews protection at the level of particular cases see themselves as breaking from the script, rather than repeating a continuous and damaging pattern.