Bezalel Stern, Blog of the Center for Jewish Law, Yeshiva University,June 14, 2011
Review of Jewish Identity and Civil Rights in America by Kenneth L. Marcus (Cambridge University Press, 2010).
Is Judaism a religion, or an ethnicity? In other words, what makes a Jew? This question, asked in various forms, has been irking scholars and thinkers for centuries. In short, as Kenneth Marcus puts it, in the introduction to his thought-provoking book Jewish Identity and Civil Rights in America, “Who is a Jew? And who gets to decide?” (1).
For Marcus, the question is not solely academic. As the Director of the Office for Civil Rights (OCR) from 2004 to 2008, Marcus was charged with deciding whether anti-Semitic discrimination fell under the rubric of the United States Civil Rights Laws which the OCR – a branch of the United States Department of Education – could enforce. “Congress” Marcus explains “has given OCR jurisdiction over race and national origin discrimination but not over discrimination on the basis of religion” (7). In other words, then, if Marcus wanted the OCR to be able to retaliate against anti-Semitic acts, he would have to characterize Judaism as an ethnicity, and Jews as a distinct race.
The problems and concerns of this proposed promulgation should be manifest, as Marcus is well aware. “To the modern mind,” he writes, “the idea of a ‘Jewish race’ recalls nothing so forcefully as the catastrophic experience of twentieth-century Nazi racial science and its antecedent forms of nineteenth-century pseudoscience” (1). Marcus’s argument for the inclusion of Jews as a racial category protected by the OCR (which takes up the bulk of this brief book) actually turns, somewhat, on the term’s grim history. If, he argues, perpetrators of anti-Semitic violence see Jews as a race, should not Jews then legally be able to resort to those protections provided by Constitution and statute to those discriminated on the basis of race?
Marcus’s middle ground would follow something like the British model: “The U.K. Supreme Court…adopted what has been called a ‘categorical’ approach. That is to say, the court held that Jews as a category constitute a distinct race within the meaning of the pertinent civil rights law” and that therefore “to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds” (4). Much of this book details the various difficulties and aborted successes Marcus had putting this definition to practice in the United States while he was Director of the OCR. While Marcus’s chronicle of his struggle at the OCR is an interesting and informative “insider’s” look at the federal bureaucracy, it seemed to me that the finest aspect of this work is the chronicling of the legal history of the manner in which both pro- and anti-Semitic governments have grappled and struggled with the slippery relationship between Judaism and race over the last two centuries.
Bezalel Stern is Director of Research at the Center for Jewish Law and Contemporary Civilization.