Are Jewish People A Racially Protected Class In America? The Legal Answer Might Surprise You.

As I’ve suggested in other posts, America’s laws can be incredibly difficult to fully comprehend. Our government’s recent habit of passing bills that are extremely long and its tendency to add pages to the federal register at an overall increasing rate has made the ability for citizens to merely identify all of the country’s rules incredibly difficult. Combine these issues with the fact the enforcement of the law may be different than the plain reading of the law as a result of judicial interpretation from court decisions, and people will quickly understand why they are advised to get a professional attorney to assist them when legal issues arise.

Perhaps no court case better exemplifies the thorniness of understanding a law’s true contemporary meaning than the Supreme Court case Shaare Tefila Congregation v. Cobb. If any case can demonstrate how a law’s fair reading can easily mislead a legal layman, then this is certainly the one.

While this case was decided in 1987, its story truly begins in 1866. A year after the end of the Civil War, Congress passed “an act to protect all persons in the United States in their Civil Rights.” Formerly known as The Civil Rights Act of 1866 (CRA), this piece of legislation was the first time that Congress legislated on the issue of civil rights, and it was designed to be a supplement to the abolition of slavery established under the 13th Amendment.

The CRA did many things in an effort to establish a legally level playing field for all citizens, and, as is relevant to the aforementioned Supreme Court case, Section 1982 specifically stated that “all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” (emphasis added)

From a strict textualist analysis, it would appear to anybody who reads this section of the CRA that all non-white citizens are simply being provided with legal protections from discrimination. However, the law has been interpreted by the Judicial Branch in a much wider fashion than what the mere text of the law would suggest to an average citizen.

Flash forward roughly 120 years. The CRA is still on the books, and multiple Supreme Court cases have clarified this section of the CRA’s requirements in a way that includes, among other matters, that the above cited section “forbids both official and private racially discriminatory interference with property rights.”

On November 2, 1982, the synagogue of the Shaare Tefila Congregation in Silver Spring, Maryland was vandalized by white men in a particularly horrific manner. Among other anti-semitic phrases and slogans, they painted the words “death to the jew,” swastikas, and other Nazi symbols on the outer walls of the temple. Within several months, the Congregation, whose members were also white, filed a federal lawsuit alleging several violations of The CRA. Of particular interest to the Court was the alleged violation of Section 1982.

In their lawsuit, the Congregation was seeking to convince the Court that they were protected under Section 1982, not because Jews are a racially distinct group, but because the vandalism was motivated by racial prejudice.

As the attorney who argued on behalf of the Congregation stated during the oral arguments of the case, the painted “words and symbols invoked Nazi ideology, and it was one of the principal tenets of Nazi ideology, both in Nazi Germany in the 1930s and ’40s and among neo-Nazi groups in this country today that Jews are racially non-white and inferior to whites.”

This line of reasoning went completely unchallenged by the opposing party’s lawyer, who agreed that the defendants “acted out of a belief that Jews are racially inferior and that the symbols they painted suggested that.” The primary argument that the defendants’ lawyer was making before the Court was that “irrational perceptions” of race, even if they are the primary motivations behind a crime involving the CRA, can not be the factor used to determine the coverage of a federal civil rights statute.

The Supreme Court unanimously disagreed.

In reaching its decision, the Court relied heavily on another unanimous decision, regarding a case called Saint Francis College v. Al-Khazraj, which they had delivered on the very same day. In Saint Francis College, the Court held that the CRA, in certain circumstances, “encompassed discrimination even among Caucasians,” and in this particular circumstance, the victim was a white professor who faced employment related discrimination as a result of his Arab ancestry. In defending this decision, the Court determined that the CRA’s “legislative history indicates that Congress intended to protect identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Thus, it didn’t matter to the Court if the victims of discrimination were understood to be white citizens by the standards of today, what mattered was whether victims were considered by the Congress in 1866 to be protected by their law.

Like the Saint Francis College case, the Supreme Court wrote in its decision regarding the Shaare Tefila Congregation that Jews, like Arabs, “were among the peoples then considered to be distinct races and hence within the protection of the statute.” Thus, Jews “are not foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race” when they are discriminated against as a result of a racial animus.

So the question of whether or not Jewish people are a racially protected class in America can only be answered in a way that will most likely surprise many contemporary Americans, for the answer lies in a mixture of Reconstruction-Era laws and late-20th Century litigation.

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