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Privileged Yet Unequal: An Essay on the Anglo-American Legal Principle of ‘Jews Lose’

Why have Jews in the U.K. never won a reported discrimination case against non-Jewish defendants?

David Schraub
January 22, 2015
(Photo illustration: Tablet Magazine; original photo: Ian Waldie/Getty Images)
(Photo illustration: Tablet Magazine; original photo: Ian Waldie/Getty Images)
This article is part of Free Speech and the First Amendment.
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Last week, the Community Security Trust—the institutional body primarily responsible for the safety of Jews in Britain—released its preliminary figures on the number of anti-Semitic incidents that had occurred over the course of 2014. The news was not good. Anti-Semitism had hit an all-time high, with a particular spike occurring in July during the course of renewed hostilities between Israel and Gaza. Another poll found that nearly half of all non-Jewish Britons held at least some anti-Semitic views, and for their part British Jews expressed unprecedented feelings of fear and vulnerability. More than half of the Jewish community stated that they feared for their future in Great Britain, and a quarter claimed to have considered leaving the country.

Because I am a lawyer and law professor (albeit not a British one), my natural instinct in these circumstances is to appeal to the law for protection. Anti-Semitic harassment, intimidation, violence, and discrimination are illegal, and a primary purpose of the courts is to provide a shield for vulnerable minorities. Unfortunately, when it comes to Jewish litigants coming to the English courts with allegations of discrimination, doctrine, precedent, and case law all fall away at the hands of one simple rule: Jews lose. They lose consistently, they lose badly, and they will often be humiliated in the process. In her magnificent 2011 book An Unfortunate Coincidence: Jews, Jewishness, and English Law, English law professor Didi Herman concludes that—since the passage of the Race Relations Act of 1976—a Jew has never won a reported discrimination case against a non-Jewish defendant.

British courts seem to bend over backward to avoid finding wrongdoing, even in the most obvious cases. To take one particularly egregious example, one case involved a job applicant who was told by the hiring agency that the company in question simply would not hire Jews. It then asked the candidate what his religion was; instead of answering, the applicant (who was indeed Jewish) stormed out. The court concluded that no discrimination occurred because the plaintiff voluntarily terminated the interview without revealing his Jewish identity.

Indeed, the only time that a Jewish claimant has succeeded in a discrimination case was in a suit brought against a Jewish day school whose admissions policy used the traditional matrilineal descent test to define who was Jewish. This, the court found, was a form of racial discrimination against Jews—the court concluded that Jewish schools were obligated to use a “religious” test (by which it meant some inquiry into a family’s religious practice; obviously from a traditional Jewish standpoint matrilineal heritage is a “religious” test) to define who was and was not Jewish. So, as far as the English courts are concerned, the only people who have ever discriminated against Jews are other Jews.


Herman skillfully demonstrates how English courts maintain a studied, almost deliberate, ignorance about Jews as a means to easily dispense with otherwise uncomfortable Jewish claims, an approach that occasionally reaches absurd heights. R v. Elias involved an appeal by a Jewish man convicted of handling stolen goods; he alleged that the prosecution’s closing argument deployed anti-Semitic stereotypes that improperly prejudiced the jury. The prosecution repeatedly compared the defendant to Oliver Twist’s Fagin in the course of describing him as “a completely different sort of man” from his co-defendants, one who “is utterly and thoroughly dishonest to the heart … [t]he most self-regarding, utterly cynical, greedy man, you can’t believe a word he says.” The court rejected the appeal, finding Fagin analogies to be a “daily” occurrence in the courts and that it was but an “unfortunate coincidence” that this particular defendant happened to be Jewish. It doubted that anyone but the defendant would perceive the Fagin references as a slur targeted at him specifically. After all, while the defendant knows his own faith, the judge and jury could at most “suspect” that Misha Chaim Baruch Elias might be a Jew.

So, as far as the English courts are concerned, the only people who have ever discriminated against Jews are other Jews.

Unfortunately, this trend has not abated since the publication of Herman’s book. In 2012, Ronnie Fraser brought a harassment lawsuit against the British University and Colleges Union, contending that it had fostered an atmosphere of “institutional anti-Semitism” against Jewish members—particularly those Jewish members who were perceived as Zionist or attached to Israel. His evidence included a near-obsessive focus on Israel by the union (between one-third and half of all international resolutions debated by the union related to Israel and Palestine), resolutions singling Israel out for a boycott applied to no other country, a trend of anti-Semitic messages being posted on union listservs, a stream of resignations by Jewish members (many specifically complaining about a hostile environment), the union disavowing the EUMC working definition of anti-Semitism as “being used to silence debate about Israel and Palestine on campus,” and the invitation of a man found by the South African Human Rights Commission to have engaged in anti-Semitic hate speech to present at a union-sponsored conference favoring BDS (the union later rejected a resolution disassociating itself from said hate speech). Most important, Fraser contended that when Jews in the union complained about what they considered to be anti-Semitic harassment, the union leadership refused to take the claims seriously. They were simply “crying anti-Semitism”—disingenuously pretending to be victims.

The Fraser opinion expressed some well-known and well-worn tropes about how Jews talk about anti-Semitism. First and foremost is the idea that Jews constantly and consistently “play the anti-Semitism card.” Functionally identical to its close cousin “the race card,” this allegation posits that the prototypical claim of anti-Semitism is made in bad faith as a tactical gambit to gain an advantage in political discussion. The cruel irony, of course, is it was precisely this type of blithe dismissal of the motives of anti-Semitism claimants that was a key reason why Fraser felt compelled to launch his suit. He felt unprotected by a union that, upon hearing the allegation that anti-Semitism was a problem, assumed that it was a false alarm set off by trouble-making racist Zionists. And the court, more or less, agreed in only slightly softer language—Fraser was hypersensitive at best, irrational at worst, to perceive the normal slings and arrows of charged political debate as having anything to do with anti-Semitism.

The view taken by the court and the union holds that anti-Semitism claimants do not seriously believe that their interlocutors are engaging in prejudiced or bigoted behavior—they only claim to do so opportunistically, as a means of browbeating their opponents into submission. As David Hirsh and I have both written, this response has become prominent—almost ubiquitous—as a means of dismissing discrimination claims without having to discuss their merits. It is no accident that the “bad faith” argument was how Steven Salaita and his backers defended perhaps his most controversial tweet: “Zionists: transforming ‘anti-Semitism’ from something horrible into something honorable since 1948.” Salaita, we are told, was most certainly not saying that because of Zionism it is now good to be anti-Semitic. Rather, he was talking about false accusations of anti-Semitism—that “since 1948” the prototypical claim of “anti-Semitism” is not actually a horrible instance of Jew-hatred, but rather refers to “honorable” opposition to Zionist perfidy. I’m actually inclined to believe this is what Salaita meant—in another tweet, he states that he has come to regard claims of anti-Semitism with “bemused indifference”—I just fail to see how it is not itself obviously anti-Semitic. One can hardly claim to have egalitarian views about Jews while simultaneously casting them as pathological liars whose claims of discrimination are patently frivolous and unworthy of consideration.

But there is another element latent in the Fraser decision and the broader legal history Herman develops. Even as it consistently rules against Jews in particular cases, the English judiciary perceives itself as generally protective of the Jewish community. Indeed, Jews are if anything seen as a model in this respect—the quintessential example of a minority group that lies under the protective umbrella of the liberal and tolerant state. When debating whether to include additional groups under the ambit of anti-discrimination laws, English politicians cited Jews as an example—others should receive what the Jews already have.

This might seem to be little more than an innocuous fiction. It isn’t. Viewing Jews as the paradigmatic 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. Because Jews are already a success story, the essential question of anti-Semitism discourse is not how to prevent anti-Semitism—it’s how to give other groups the bounty Jews enjoy while simultaneously ensuring that Jews don’t exploit their supposedly privileged position.


Things are better in the United States—but not by as much as one would hope. In terms of raw numbers, Jews are the third-most common victim of hate crimes in America, behind African-Americans and gay men (per capita, they rank second). Yet in his own examination of American First Amendment jurisprudence, University of Wyoming law professor Stephen Feldman found that Jews had never successfully won a Free Exercise challenge before the United States Supreme Court (they also have not, to my knowledge, won a Supreme Court case under the primary federal statute providing for religious liberty, the Religious Freedom Restoration Act). Free Exercise and RFRA cases typically concern the asserted need for an exemption from a generally applicable legal rule that conflicts with a person’s religious obligations. Christians certainly do not always win these cases, but they do sometimes—most recently (and notoriously) in the Hobby Lobby case about insurance coverage for contraception under the Affordable Care Act. Jews, by contrast, have enjoyed a constant string of defeats before the high court.

Perhaps the most striking of these losses came in the 1961 case of Gallagher v. Crown Kosher Super Market, seeking an exemption from the Massachusetts “Sunday closing” law. Jewish-owned businesses were particularly vulnerable to such laws since it effectively forced them to close for two days of the week (Saturday for religious reasons, and Sundays for legal purposes). The Supreme Court had expressed skepticism regarding that argument, suggesting that the state had a strong interest in guaranteeing a uniform, generally applicable day of rest available to all workers. But here the Gallagher plaintiffs seemed to have an advantage, since the Massachusetts law at issue could in no way be described as uniform. It was riddled with what the district court categorized as an “unbelievable hodgepodge” of exclusions for everything from clam digging to miniature golf to tobacco sales. Given the multitude of exceptions, couldn’t Massachusetts also be required to extend the same courtesy to Orthodox Jewish merchants (who, after all, would simply be observing the Sabbath on a different day)? The court was unmoved and upheld the Massachusetts law, exceptions and all. To be sure, it is good to be cautious about relying solely on Supreme Court opinions because of the small sample size, and Jews have benefited indirectly from other Supreme Court cases (brought by Christians) that did provide some protections for Saturday-Sabbath observers. But this makes Gallagher all the more distinctive—a court unmoved by religious freedom claims presented by Jews became markedly more sympathetic when similar concerns were raised by Christian litigants.

The Jewish situation is marked by a disjuncture between what we say about ourselves and what is said about us.

Despite this history, the same tropes discussed above—that Jews perpetually cry anti-Semitism, that discourse about anti-Semitism is so ubiquitous in America to the extent that it squeezes out other important discussions—are prevalent here as well. The far left and far right unify around the idea that Americans need to struggle against “Jewish privilege.” Moving closer to the mainstream, John Mearsheimer and Stephen Walt devote an entire section of The Israel Lobby to the idea of “anti-Semitism” as “the great silencer” (they suggest that while “the charge of anti-Semitism can be an effective smear tactic, it is usually groundless”). They are in grand historical company—in 1941 it was Charles Lindbergh who complained about the “smear” of anti-Semitism in the course of assailing Jewish desire for the United States to intervene in World War II and indicting “their large ownership and influence in our motion pictures, our press, our radio and our government.”

The point is not to oversell the peril of being Jewish in America. Rather, it is to stress that even where Jews are well-integrated these stereotypes about the Jewish position—Jews are dominant, Jews are hyper-powerful, Jews have infinite political sway and influence—remain active and distort our view of the world. When talking about the role of the “bad faith” response against claims of anti-Semitism at an academic conference this past November, I was asked about AIPAC—AIPAC really does use “anti-Semitism” cynically and opportunistically for political ends, right? Well, wrong—AIPAC actually refers to anti-Semitism very rarely. It isn’t a substantial part of their political playbook. Yet it is so ingrained in our collective psyche that Jews of the AIPAC sort deploy anti-Semitism incessantly, even recklessly, that we “know” about AIPAC’s malfeasance in this regard even though they really don’t participate in the discourse at all. One does not have to be a backer of AIPAC to be alarmed at the distorted, even mythic, role they play in discussions about the status of Jews in American life. (I get similar shivers when I listen to conservatives talk about George Soros’ links to progressive organizations, a discourse which has a distinct undertone of “… backed by the Jewish money you didn’t know about.”)

Christine Littleton once described the heart of the feminist method as beginning with “the very radical act of taking women seriously, believing that what we say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us.” The Jewish situation, too, is marked by a disjuncture between what we say about ourselves and what is said about us. Said to be fully protected in modern law and society, we express concern about ourselves that we do not actually feel as if we can trust non-Jews to come to our aid when we feel threatened or vulnerable or intimidated. Are these concerns taken to be “important and valid”? Too often, they are not. They are not because others, more powerful others, others whose opinions about Jews do carry a presumptive validity, drown them out. They insist that we are anti-discrimination winners, a group that can always count on the law to have its back, a people who if anything are abusing the beneficence of its neighbors and who maybe need to understand that society will not forever be suckered and pushed around, by the last group of people who have any rightful claim to be the targets of unequal treatment.


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David Schraub is Lecturer in Law at the University of California-Berkeley. He blogs at The Debate Link and can be followed on Twitter @schraubd.

David Schraub is Lecturer in Law at the University of California-Berkeley. He blogs at The Debate Link and can be followed on Twitter @schraubd.