Are Jews a Racial Group or a Religious One in the Eyes of U.S. Law?

May 17, 2022 | Eugene Volokh
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 The question of whether the Jews constitute a race, a nation, a religion, or something else entirely hardly admits of a simple answer, and perhaps need not be resolved. But these categories are given meaning by American law, in which some injunctions prohibit racial discrimination, other religious discrimination, and so forth. Eugene Volokh observes:

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.

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.

So in most situations, discrimination against Jews in employment, hate crimes, and the like counts as illegal discrimination. . . . And, of course, much anti-Semitic 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 . . . [that] 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.

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