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Are Jews a Race Under U.S. Law?

How the United States has attempted to settle the question of whether antisemitism is racism or mere animus

by
Eugene Volokh
May 16, 2022
Lou Rocco/Disney General Entertainment Content via Getty Image
Lou Rocco/Disney General Entertainment Content via Getty Image
Lou Rocco/Disney General Entertainment Content via Getty Image
Lou Rocco/Disney General Entertainment Content via Getty Image

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

The answer is: It’s complicated.

To begin with, in late 1800s America, “race” was often used to include groups such as Jews, Arabs, Swedes, Italians, and the like. That’s important, because the Civil Rights Act of 1866 provided that “All persons” have the same rights “to make and enforce contracts ... and to the full and equal benefit of all laws,” “as is enjoyed by white citizens.” And in Shaare Tefila Congregation v. Cobb (1987), the Supreme Court held that this covered discrimination against Jews (even though most of us would today be generally viewed as “white”) and not just against, say, Blacks or Asians:

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

This view of Jews as a race was also of course the view held by the Nazis as late as the 1930s and 1940s, but it was common even among non-antisemites in 1800s America—the term “race” was often used more broadly then that it is now.

Lower courts have naturally followed the Supreme Court on this, and “have regularly found that antisemitic harassment and discrimination amount to racial discrimination,” at least under such post-Civil War statutes, which have also been read as covering employment discrimination. And courts have sometimes imported this definition into more recent statutes, though not always.

These days, Jews, Arabs, and the like aren’t usually labeled a “race” in America (though hostility to those groups is sometimes labeled “racism”). As a result, where the Civil Rights Act of 1964 bans discrimination based on race, it might not be understood as covering discrimination against Jews. But such modern statutes, including the 1964 act, also generally ban discrimination based on national origin and religion. If someone discriminates against Jews because he disapproves of their religious beliefs, that’s prohibited religious discrimination.

What if someone (like many antisemites) discriminates against all Jews, whether religious or secular? Some courts say this is prohibited national origin discrimination, but others disagree, reasoning that “Jews, like Catholics and Protestants, hail from a variety of different countries.”

A 2010 letter from the Obama administration’s Education Department took the view that discrimination based on “ancestry or ethnic identity as Jews” qualifies as national origin discrimination. Likewise, Donald Trump’s 2019 Executive Order says that such antisemitic discrimination may be illegal “when the discrimination is based on an individual’s race, color, or national origin,” though it ultimately leaves it to the courts to resolve whether discrimination against Jews really does qualify as national origin discrimination.

“Ethnicity” is the most common modern American term for referring to this quality of being Jewish apart from religion, just as it’s a common way to refer to being of Hispanic, Arab, or Italian extraction. Some modern antidiscrimination laws, such as the California constitutional provision banning discrimination or preferential treatment in public employment, education, and contracting, indeed expressly prohibit discrimination based on ethnicity. But the federal antidiscrimination statutes don’t mention ethnicity (though some courts have effectively equated national origin and ethnicity, covering discrimination against Hispanics and thus, by implication, also discrimination against ethnic Jews).

So in most situations, discrimination against Jews in employment, hate crimes, and the like counts as illegal discrimination. If the discriminator is targeting people because of their Judaism, that’s discrimination based on religion. If the discriminator is targeting people because of their Jewish ethnicity, that’s discrimination based on race (under the post-Civil War statutes) or, often, national origin (under the more recent statutes), and sometimes ethnicity. And, of course, much antisemitic behavior targets Jews based on both their religion and ethnicity, in which case several of these laws might apply.

But every so often there are complications. For instance, religious institutions aren’t barred from discriminating based on religion, but they are barred from discriminating based on race or national origin (at least as to their employees who don’t teach religion); likewise, Title VI of the Civil Rights Act, which restricts discrimination based on race and national origin in federally funded programs—including education—doesn’t cover religious discrimination. And the modern laws that ban national origin discrimination have particular procedural rules and damages provisions that the post-Civil War laws don’t, so whether ethnic discrimination is labeled race discrimination or national origin discrimination might sometimes matter. This can lead to some complicated litigation, such as Bonadona v. Louisiana College (2019), in which a religious college was allegedly discriminating against the plaintiff (who had earlier converted to Christianity) because of his Jewish ethnicity.

The court allowed Bonadona’s race discrimination claim under the Civil Rights Act of 1866. But the court rejected Bonadona’s claim under Title VII of the Civil Rights Act of 1964, because, “Under the canons of statutory construction, words should be given the meaning they had when the text was adopted. This canon was adhered to by the Supreme Court in Shaare Tefila Congregation, when it noted that while Jews were a protected race in 1866, they are no longer thought of as members of a separate race.”

What about national origin discrimination? The Bonadona court didn’t deal with it, because Bonadona’s lawyer hadn’t mentioned it in his complaint. And there was no talk of ethnicity—again, likely because the Civil Rights Act of 1964 doesn’t expressly mention it.

Incidentally, for whatever it’s worth, here is what the Anti-Defamation League had to say on the subject:

ADL is deeply offended by the perception of Jews as a race found in both allegations against the College and the plaintiff’s assertions in the lawsuit. According to a court filing, the administration was motivated in its actions because of Mr. Bonadona’s “Jewish blood” and Mr. Bonadona is attempting to circumvent the 1964 Civil Rights Act’s religious employer exemption by characterizing his “Jewish heritage” as racial …
The idea that Jews are not only a religious group, but also a racial group, was a centerpiece of Nazi policy, and was the justification for killing any Jewish person who came under Nazi occupation—regardless of whether he or she practiced Judaism. In fact, even the children and the grandchildren of Jews who had converted to Christianity were murdered as members of the Jewish “race” during the Holocaust.
Based on Congress’ 19th Century conception of race, the U.S. Supreme Court in the 1980s ruled that the definition of “non-white races” found in post-Civil War anti-discrimination laws, includes Arabs, Chinese, Jews and Italians. The 1964 Civil Rights Act, which explicitly covers national origin and religion, does not embody these antiquated views. Although Mr. Bonadona’s attorney certainly could try to bring claims under these 19th century laws, we believe that attempting to create similar legal precedent under the Civil Rights Act perpetuates harmful stereotypes and views about Jews …

I’m inclined to be skeptical about that; are such legal details likely to really 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 “race” discrimination under the Civil Rights Act of 1866, and it may also be discrimination based on “national origin” under the Civil Rights Act of 1964.

Eugene Volokh is a professor of First Amendment law at UCLA School of Law, and the co-founder of the law professor blog The Volokh Conspiracy.

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