Judging jewish identity in the United States

Annalise Glauz-Todrank’s book Judging Jewish Identity in the United States begins with the desecration of a Jewish synagogue in Silver Springs, Maryland, USA in 1982 and follows the civil suit Shaare Tefila Congregation v. Cobb that emerged from it which went all the way to the Supreme Court. The Jewish Advocacy Center represented the plaintiffs (66, 74). What is significant about this suit is that the plaintiffs argued that since the perpetrators perceived Jews as a “race,” they should be protected under Civil Rights Acts which were passed during the American post-Civil War Reconstruction era in 1866 (42 U.S.C. sections 1981 and 1982) and 1871 (42 U.S.C. section 1985(3)). This is because that while race is a protected category under civil rights legislation, religion is not (33, 74, 77, 93). This was a controversial decision on the part of the board of the congregation since according to Nazi ideology, Jews were considered to be part of the Semitic race in contrast with northern Europeans who were considered to belong to the Aryan race (79). Through her discussion of whether the Jews constitute a race, she problematizes treating Jews as simply adherents to a religion (47).

The perpetrators were young white Christian men from working-class backgrounds (mostly in their late teens, led by a twenty-three-year-old, Michael D. Remer) who sprayed painted anti-Semitic slogans on the walls and around the premises of the temple (including Swastikas) (1, 62, 71). Rather than immediately removing the graffiti, the leadership of the congregation chose to temporarily leave it thereby calling attention to it as a hate crime, a designation that rose to prominence in the early 1980s (44, 92).

Glauz-Todrank provides a history of Jewish racialization in the United States. In the mid-nineteenth century, Jews were not considered to be white but rather were categorized as “Hebrews.” It was only during World War II in the G.I. Bill that Jews were considering along with other European ethnic groups (Irish and Italians) as white (29) distinguishing them from blacks who did not receive the same benefits. Glauz-Todrank provides a history of the Shaare Tefila congregation which first started in the District of Columbia in the early 1950s but then moved out to its suburbs in Maryland following the post-war migration path of its increasingly affluent membership (29-30). She makes the distinction that while Jews were considered to be “formally” white, they were not “substantively” white since they are a marginalized group and have been discriminated against (for example, in the U.S. for example in admission to universities and clubs, and in housing)(31, 46). In the United States, according to the Census Bureau, most Jews are classified as Caucasian, because their ancestry is from Europe, the Middle East, or North Africa (69).

Chapter 3 takes us through the decisions of both the lower federal district court in Maryland and the appellate court (the Fourth Circuit Court of Appeals). Under consideration was whether the plaintiffs who considered themselves white could seek legal protection based on race according to Maryland state laws (89). The lawyer for the leader of the group, Michael Remer, argued that since Jews are considered white, the Civil Rights Act of 1866 does not cover them (92). The lower court judge’s decision sided with the defendants who argued that Jews belong to a religious not a racial group and therefore are not protected under the Civil Rights Act of 1866 (95). The appellate court came down two-to-one in favor of the defendants largely agreeing with the lower court decision (102). However, what Glauz-Todrank focuses on is the dissenting opinion of Judge J. Harvie Wilkinson III which served as the basis of the Supreme Court decision. He argued that since the defendants adhered to neo-Nazi ideology and since the Nazi’s considered the Jews a separate race, they were protected. He also points out that the Civil Rights Acts of 1866 and 1871 were enacted to counteract the Ku Klux Klan which was driven by racial ideology (including anti-Semitism) (112). Wilkinson also noted that race is a constructed category and there are no objective scientific or legal criteria determining it (115-116).

Chapter 4 focuses entirely on the Supreme Court decision. It was brought there along with a companion case St. Francis College v. Al-Khazraji which successfully based itself on a similar legal argument as Shaare Tefila and thus there were split decisions on the appellate court level. Al-Khazraji was denied tenure at St. Francis College and claimed that he was discriminated against because he was Arab which was also considered a separate race in 1866 (136-137). In this chapter, Glauz-Todrank focuses on Supreme Court justices Thurgood Marshall, who was black, and Antonin Scalia, who was Italian, noting that both were self-conscious of their minority status. As she does with some of the other judges on the lower court levels, she provides their biography but, in this chapter, she also provides their comments during oral argument. It was Justice Byron White, however, who wrote the decision. Aside from the fact that the defendants perceived Jews as non-white, what came out at this level, is that many Jews are not religious and therefore religion cannot be the sole determinant (159).

After the Supreme Court ruling, the case went back to the District Court and was heard by the same initial judge (181). After depositions, proceeding with a pre-trial order, and obtaining a consent injunction, Share Tefila decide to settle with the defendants who submitted letters of apology (184). Remer, who spent time in prison because of the criminal suit, became more radicalized in the process aligning himself with the white supremacist ideology that is prevalent in some prison gangs (182-183).

Shaare Tefila Congregation v. Cobb has served as a landmark case influencing decisions in later cases. As Glauz-Todrank concludes neither “race” nor “religion” fit the attempt to define Jews in the American legal system. What I wonder is why ethnicity has not been used as a criteria or category for equal protection under the law. Granted that the Civil Rights Acts of 1866 and 1871 were concerned about protecting African Americans from discrimination during the Reconstruction Era. Even the civil rights acts of the 1960s were primarily concerned about race. Maybe it is time to extend it to ethnicity. It would be more fine-tuned. But then again, Jews would be belong to more than one ethnicity (e.g., Ashkenazi and Sephardic).

Glauz-Todrank has done an excellent and meticulous of job of carefully following this case. She problematizes both the categories of race and religion in application to American Jews. She provides background information situating the temple, its membership, the defendants, and the judges hearing the case. While the Supreme Court decision, on the one hand, was a good one, it is also problematic because it simply reinforces categorizing Jews in racial terms as understood by neo-Nazi and white supremacist ideology. Racial categories as they exist today are anachronistic categories with boundaries that are artificial. The term Caucasian, coined by a German racial theorist in the late eighteenth century (Bernal 1987, 340) is still defined in the U.S. as anyone with ancestry from Europe, the Middle East, and North Africa. For to do so otherwise would mean that Jesus was not white.