Is the Jew a race or a religion?

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Is being Jewish a race? A national origin? An ethnicity ? A religion? All four?

The answer is: it’s complicated.

For starters, in the late 1800s in America, “race” was often used to include groups such as Jews, Arabs, Swedes, Italians, etc. This is important, because the Civil Rights Act of 1866 provided that “all persons” have the same rights “to make and perform contracts … and to the full and equal benefit of all laws”, ” as enjoyed by white citizens”. And in Congregation Shaare Tefila v. Cobb (1987), the Supreme Court ruled that this covered discrimination against Jews (even though most of us today would generally be considered “white”) and not just against, say, blacks or Asians:

[T]The question before us is not whether the Jews are considered a separate race by today’s standards, but whether, at the time [the Civil Rights Act of 1866] was passed, Jews were a group of people whom Congress intended to protect. … Jews and Arabs were among the peoples then considered distinct races and therefore under the protection of the statute.

This view of Jews as a race was of course also that of the Nazis well into the 1930s and 1940s, but it was common even among non-anti-Semites in 1800s America – the term “race” was often used more more than that. it is now.

The lower courts naturally followed the Supreme Court on this and “have consistently found that anti-Semitic harassment and discrimination amounted to racial discrimination,” at least under those post-Civil War statutes, which were also interpreted as covering discrimination in employment. And courts have sometimes imported that definition into more recent statutes, but not always.

Today, Jews, Arabs, and others are generally not referred to as a “race” in America (although hostility toward these groups is sometimes referred to as “racism”). Therefore, where the Civil Rights Act of 1964 prohibits discrimination based on race, it may not be understood to cover discrimination against Jews. But these modern laws, including the 1964 law, also generally prohibit discrimination based on national origin and religion. If someone discriminates against Jews because he disapproves of their religious beliefs, that is prohibited religious discrimination.

What if someone (like many anti-Semites) discriminates against all Jews, whether religious or secular? Some courts say it’s discrimination based on national origin, but others disagree, saying “Jews, like Catholics and Protestants, come from different countries” .

A 2010 letter from the Obama administration’s education department ruled that discrimination based on “ancestry or ethnic identity as Jewish” could be considered discrimination based on national origin. Similarly, Donald Trump’s 2019 executive order states that such anti-Semitic discrimination may be unlawful “when the discrimination is based on an individual’s race, color, or national origin”, although it ultimately leaves it is up to the courts to determine whether discrimination against Jews is in fact permissible. as discrimination based on national origin.

“Ethnicity” is the most common modern American term for this quality of being Jewish outside of religion, just as it is a common way of referring to being of Hispanic, Arab, or Italian descent. Some modern anti-discrimination laws, such as the California Constitutional provision prohibiting discrimination or preferential treatment in public employment, education, and contracts, do indeed expressly prohibit discrimination based on ethnicity. But federal anti-discrimination laws do not mention ethnicity (although some courts have effectively equated national origin and ethnicity, covering discrimination against Hispanics and thus, by implication, also discrimination against ethnic Jews) .

Thus, in most situations, discrimination against Jews in employment, hate crimes, etc., are considered unlawful discrimination. If the discriminator targets people because of their Judaism, that is discrimination based on religion. If the discriminator targets people because of their Jewish ethnicity, this is discrimination on the basis of race (under post-Civil War laws) or, often, ethnicity. national origin (under the most recent laws), and sometimes on ethnicity. And, of course, many anti-Semitic behaviors target Jews because of both their religion and their ethnicity, in which case several of these laws could apply.

But every now and then there are complications. For example, religious institutions are not prohibited from discriminating on the basis of religion, but they are prohibited from discriminating on the basis of race or national origin (at least with respect to their employees who do not teach religion); similarly, Title VI of the Civil Rights Act, which limits discrimination based on race and national origin in federally funded programs, including education, does not cover religious discrimination. And modern laws that prohibit discrimination on the basis of national origin have special procedural rules and provisions on damages that post-Civil War laws do not have, so that ethnic discrimination be qualified racial discrimination or discrimination based on national origin can sometimes matter. This can lead to complicated disputes, such as Bonadona v. Louisiana College (2019), in which a religious college allegedly discriminated against the complainant (who had previously converted to Christianity) because of his Jewish ethnicity.

The court upheld Bonadona’s race discrimination claim under the Civil Rights Act of 1866. But the court dismissed Bonadona’s claim under Title VII of the Civil Rights Act of 1964, because, “according to the canons of statutory interpretation, words must have the meaning they had. when the text was adopted. This canon was followed by the Supreme Court in Congregation Shaare Tefilawhen he noted that while the Jews were a protected race in 1866, they are no longer considered members of a separate race.

What about discrimination based on national origin? Bonadona’s court did not deal with it, because Bonadona’s lawyer had not mentioned it in his complaint. And there was no mention of ethnicity, again, probably because the Civil Rights Act of 1964 does not mention it expressly.

By the way, for what it’s worth, here’s what the Anti-Defamation League had to say on the matter:

The ADL is deeply offended by the perception of Jews as a race found in both the allegations against the College and the plaintiff’s assertions in the lawsuit. According to a court filing, the administration was motivated in its actions by Mr. Bonadona’s “Jewish blood” and Mr. Bonadona is trying to circumvent employers’ religious exemption from the 1964 Civil Rights Act by labeling his “legacy Jewish” from racial…

The idea that Jews are not only a religious group, but also a racial group, was a centerpiece of Nazi policy and justified the murder of any Jewish person who fell under Nazi occupation, whether they practiced it or not. Judaism. In fact, even the children and grandchildren of Jews who had converted to Christianity were murdered as members of the Jewish “race” during the Holocaust.

Based on Congress’s 19th century conception of race, the U.S. Supreme Court in the 1980s ruled that the definition of “non-white races” found in postwar anti-discrimination laws civilian included Arabs, Chinese, Jews and Italians. The Civil Rights Act of 1964, which explicitly covers national origin and religion, does not embody these outdated views. While Mr. Bonadona’s attorney could certainly try to press charges under these 19th century laws, we believe that attempting to create a similar legal precedent under the Civil Rights Act perpetuates harmful stereotypes and views. on the Jews…

I’m inclined to be skeptical about this; are these legal details likely to actually affect public attitudes or stereotypes? In any event, the legal rule in the United States of 2022 is that discrimination against Jews based on their ethnicity rather than their religion is indeed “racial” discrimination under the Civil Rights Act of 1866, and it can also be discrimination based on “origin” under the Civil Rights Act of 1964.

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