"Are Jews a Race Under U.S. Law?

A new article of mine in Tablet magazine, which begins:

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

The answer is: It's complicated.

Comments

[wreckinball]

A religion. It's not complicated. A race is biological.

[DaivdBehar]

Any other assertion than yours is racist.

[DaivdBehar]

"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."

More lawyer denial of reality. It agrees with the Nazis.

[DaivdBehar]

The Nazis call Jews a race to kill them. The lawyer does that to bill them fees in worthless rent seeking.

[John F. Carr]

Jews are a race and a religious group. Genetic testing can tell if you have Ashkenazi or Cohenim ancestors. I'm sure I remember the spelling Cohenim but the Internet tells me I should say Cohanim. Anyway, a Jew by any other name would...

...I don't know how to finish that sentence in these oversensitive times.

[wreckinball]

No. My daughter is Jewish. She's the same race as me, a non-Jew.

[defaultdotxbe]

Doesn't that just prove its both though? You used the term Jew/Jewish in the context of both a religion and a race. My cousin is the opposite of your daughter, an ethnic Jew who does not practice the Jewish religion.

If there was perfect overlap between people of the Jewish ethnicity and practitioners of the Jewish religion there would be no need to define them differently and we wouldn't be having this conversation.

[Brett Bellmore]

Ashkenazi or Cohenim might be 'races', but they're 'races' many non-Jews are members of, and many Jews are not.

[David Nieporent]

So's Judaism, although that's a bit oversimplified. The best analogy is that Judaism is a tribal identity. Christians treat Judaism as analogous to Christianity, but it's not; it's not merely a shared creed that one can adopt.

But Professor Volokh asked "under U.S. law," not under Halacha or wreckinball's opinion or David Nieporent's opinion.

[Seamus]

But there are plenty of Jews who don't practice the religion of Judaism.

[Shabbetai Ẓevi]

Jews are parasites, like ticks, makes them candidates for extermination, Zyklon B is non discriminatory, therefore equal protection.

[Commenter_XY]

Hush now Zevi; the adults are speaking.

(I shamelessly took that from David N - giving correct attribution)

[Nelson]

Was Einstein Jewish? Because he was offered the Presidency of Israel, but was not religious. He's pretty much the poster child for secular humanism. And yet Jews thought he was one of them.

But I'm sure a random non-Jewish person's simplistic opinion should prevail.

[Bubba Jones]

According to his biography, Einstein eventually learned that you don't get to pick your tribe, and he came to grips with being Jewish.

[DWB]

Race does not exist.

There are tribal/ethnic markers that groups of people share but trying to force people into large groups is a fools errand.

[David Bernstein]

Race exists under US law, as there are laws that prohibit discrimination "based on race." For purposes of such laws, it matters if Jews are classified as a race or not.

[GKHoffman]

Are there laws that forbid discrimination based on race that do not also forbid discrimination based on religion?

[David Nieporent]

Yes. § 1981, for instance.

[Bored Lawyer]

IIRC, in the 19th Century that statute was held to apply to Jews, as they are a race.

There was also a case a couple of years ago where a Jew that had converted to Christianity brought a discrimination case against someone he claimed had acted against him because he was born a Jew.

[David Nieporent]

Prof. Volokh addresses these issues in the linked article.

But it was a 1987 case, not a 19th century case. (Well, technically the 1987 case was about § 1982, but the principle is the same.)

[Shabbetai Ẓevi]

Jews can be hated on basis of the existence of Israel, they all have a national origin now, a jewish state, a political reason to be hated, meets the legal definition.

[Seamus]

Except relatively few Jews in the United States have a national origin in the State of Israel. You might reasonably argue, however, that Jews qua Jews (rather than qua Israelis) constitute a "nation" and thus have a national origin.

[Ed Grinberg]

Jews can be hated on basis of the existence of Israel

You got that backwards. The State of Israel is hated because it's full of . . . Jews.

[rsteinmetz]

In the past race was often considered the equivalent of what we now consider ethnicity. You don't have to look to hard to find references to the British Race or the Irish Race, among many others.

[Shabbetai Ẓevi]

Under 1A it is still legal to hate the jew.

[DaivdBehar]

You sound like an overly entitled Jew. You need to disclose the Jew content of your DNA.

[Frank Drackman]

1A of what? Chapter in your Jiz-boola-boola brochure? Too bad the Moe-saad doesn't bother with smegma like you.

[Ed Grinberg]

True. Good luck with that.

[Pavel Petrovich]

What is the legal necessity of classification to hate jews? Does not matter if they are related by blood, religion, deviancy, conspiracy, or other non-specific characterization. Yankee fans and Red Sox fans, same thing. Call them different 'races', different religion, different tribes, but neither claims to be a victim.

Six Million ... the modern day jew exists only because of Zyklon B.

[Cal Cetín]

"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.""

Is that they way they're interpreting it today?

[Seamus]

I see that there is a comment which I cannot see because I've muted the user. If I recall correctly, I've only muted one user on this site, and that's because of repeated antisemitic crap. Stands to reason he'd come out of the woodwork to comment on this one.

[Ed Grinberg]

I only mute the "Follow this link to make $$$" posters.
The trolls are actually kind of entertaining. The "revered" is a riot!

[Cal Cetín]

Just stick "ethnicity" or "ancestry" in the civil rights laws alongside race and national origin - wouldn't that work?

[jdgalt1]

National origin would seem to be the best fit, accurate for Jews whose family was Jewish before the diaspora began (when the Romans expelled them from Judaea in AD 79). But it would not cover Reform Jews who (or whose ancestor) converted after that date.

But like many other posters I would prefer the government not to keep records of race or national origin at all (except for who is from here in the US, of course).

[Aurelius]

A less sensationalistic and more precise framing of the question is to ask whether anti-Jewish discrimination is racial discrimination under US law. The linked article provides an excellent discussion of that question.

As to the question actually posed by the title of this piece, the conception of Jewishness as a "race" is not a modern one; in our particular place and time we use "race" quite narrowly but in general English usage it merely denotes a given ancestry or lineage. George Washington, in his letter to the Newport Congregation, refers to the Jews as the "Stock of Abraham" in keeping with Biblical usage.

[Aurelius]

From https://www.merriam-webster.com/dictionary/race:

[b] dated : a group of people sharing a common cultural, geographical, linguistic, or religious origin or background
The Yorkshire type had always been the strongest of the British strains; the Norwegian and the Dane were a different race from the Saxon.
— Henry Adams
… this girl, Dolores by name, and a Catalonian by race …
— Charlotte Brontë
[c] archaic : the descendants of a common ancestor : a group sharing a common lineage
… by descent I am the head not only of my own race, which ends with me, but of the Haughton family, of which, though your line assumed the name, it was but a younger branch.
— Edward Bulwer-Lytton
This forest was adjacent to the chief haunts of the MacGregors, or a particular race of them, known by the title of MacEagh …
— Sir Walter Scott
2a

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Churchill and his generation often referred to the English, French, German, etc races. I'm agonna guess that usage faded after WW II as the skin color usage gathered steam.

Those who refer to Jews as a race are a confusing bunch; they can't even agree among themselves whether it is skin complexion, noses, language, religion, ancestry, country of origin, country of living, or anything else. That tells me all I need to know about their special bigotry.

[Aurelius]

Unfortunately, to those who believe in racialism, Jews have always been considered an inferior race

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, but they have never been able to pin down what exactly defines a Jew.

It's sort of the major leagues as far as sloppy bigotry. Blacks are a more minor league, where they sometimes act as if one drop of black blood overpowers all the white blood in circulation; or maybe it is only 1/64th or 1/32nd or whatever; but half white / half black is always black. At least they agree it is related to a single point, blood/ancestry; such is why they are purely minor league compared to the indecisive Jew haters.

[rsteinmetz]

The amount of African DNA you need to have to be black varies from place to place, as does the amount of Native American ancestry vary significantly between various recognized tribes.

[LSchnapf]

I am jewish and italian. this is why i answer "other" on any forms asking about race. My ancestors encountered discrimination and I experienced similar treatment growing up in the 60s. Indeed, I was treated very differently by my junior high school classmates after they learned I was raised Catholic (my mom was italian). I got to see unequivocal anti-semitism yet under government policy, I was treated as a "white" for affirmative action purposes. These was policies that made me become a Republican.

[Ed Grinberg]

My ancestors encountered discrimination and I experienced similar treatment growing up in the 60s. Indeed, I was treated very differently by my junior high school classmates after they learned I was raised Catholic (my mom was italian). I got to see unequivocal anti-semitism yet under government policy, I was treated as a "white" for affirmative action purposes. These was policies that made me become a Republican.

You're absolutely right, of course. But the "woke" SJWs will tell you you're a horrible person for complaining about this. (IMHO, it's they who're horrible people.)

[great Unknown]

If genetics cannot define gender, it certainly cannot define "jewishness". In a generation where people who are primarily white can call themselves POC [or Native Americans], and people who are ethnically and historically Spanish are called white Hispanics, we have a problem. Maybe we should ask Justice Thomas, the infamous White Black member of SCOTUS. Or consult the current edition of Merriam-Webster [but hurry, their definitions have tended to be labile recently].

The nice thing about agreed-upon definitions is that it allows for civilized discourse. The opposite is also true. For some, that is a feature, not a VW.

[Sarcastr0]

I don't find I have much of a functional problem with clarity in discourse about gender, or race, or civic discourse. Are there fuzzy areas? Sure, but not so the definitions are flawed for common communication.

People who weaponize being wrong about any of those are around, but they too know what they're deviating from, and they're easily pegged as trolling.

[Cal Cetín]

You neglected to mention the eminent jurist Mel Brooks:

We're Jews out in space
We're zooming along, protecting the Hebrew race

https://www.youtube.com/watch?v=0Wai7VFzycI

[Bored Lawyer]

Someone has to service those lasers that control the weather.

[SRG]

Not complicated. "Jewish" has multiple definitions: an ethnic tribe with some characteristic/typical genetic markers; the traditional religion of that tribe; people who, while not being a member of the tribe by descent, are adherents of the religion. That I think covers most of it.

[Bubba Jones]

This answer should be obvious to anyone who actually cares.

Judaism is largely passed down through families rather than by conversion.

Hence the high overlap between genetics, culture and religion.

The fact that some people leave the faith and some people convert doesn’t really change the underlying correlation.

The real question is: why do you ask? Are you doing a genetic study or are you asking if they qualify for legal protection?

[SRG]

Well, clarification does address the question of how someone like me can be an atheist and a Jew.

[Nelson]

I have a couple friends in the same boat as you. They got really tired if telling other kids in school that they were Jews, but didn't believe in God.

They said that the most common response was, "You mean you don't believe in Jesus.". They couldn't wrap their brains around the idea that the children of practicing Jews could be atheists and still be considered Jewish.

[Bubba Jones]

The historical observation is that Jews can't choose not to be Jewish. Einstein (and others) tried to assimilate as Germans and it simply wasn't accepted.

He eventually decided that he was part of the Jewish tribe/nation whether he chose to be or not, so he embraced it.

So, operationally Jews are a race.

[David Nieporent]

DNFTT.

[DaivdBehar]

You found your soulmate, you little anti-Semite.

[Shabbetai Ẓevi]

If a arabic coffee grower of islamic origin identifies as a non-believer of the chosen tribe, must he jihad himself?

[TwelveInchPianist]

"How about if one self-identifies as a Jew then they are?"

I don't think that's an accurate statement of US law.

[Ed Grinberg]

Or Israeli law.