On September 15, 1935, two laws were passed in Nazi Germany that would pave the way for the Holocaust. The Reich Citizenship Law and the Law for the Protection of German Blood and German Honor codified political notions of racial superiority and created a legal hierarchy of human life that defined Jews as an independent, inferior race. As such, Jews were not considered to be German citizens, were granted no political rights, and were banned from intermarriage or sexual relations with people “of German or related blood.” Using the Nuremberg Race Laws, as these two laws became known, to establish a legal difference between Jews and their neighbors, the Nazis were able to enact a system of labeling, persecution, and eventual mass murder, based on the perceived racial threat that the Jews posed to the purity of the German nation.
While the Nuremberg Laws may be the most famous example of government-imposed definitions of Judaism leading to segregation, discrimination and harassment, they are by no means the only ones. In the former Soviet Union, Jews were required to have “Jewish nationality” marked in their passports and identity papers. Despite an official ban on antisemitism, questions of dual loyalty led many to be rejected from colleges or employment opportunities because of this mandatory government identification. Even in Israel, established as a Jewish state in 1948 in the immediate aftermath of the Holocaust, the issue of defining what it means to be a Jew has been an ongoing legal debate. This is because according to Israeli law, every Jew is automatically granted the right to immigrate to Israel. Ironically, even in a country that considers itself home to the Jewish people, the definition of Jewishness is still used to isolate and exclude.
The obvious answer to this problem would be to keep government and individual definitions of Jewishness separate. For the most part, this is what American Judaism has done. This is in keeping with the view of the United States of America as a melting pot for all different types of people. It doesn’t matter what country a person comes from, their race or religion; once one becomes an American citizen, it’s “one nation, under God, indivisible, with liberty and justice for all.” You can be anyone and achieve anything here — that’s the American Dream — and it is what unites us all as a whole, regardless of how we choose to define ourselves as individuals.
In theory, the separation of church and state when it comes to defining what it means to be a Jew in America makes sense both from a historical and a societal perspective. However, the reality of the situation demands a different approach. According to the Anti-Defamation League, antisemitic incidents hit a record high in 2022, up 36 percent from the previous year. This is the third time in five years that antisemitic incidents have been the most on record since the ADL started documenting these statistics, and that’s without taking into account the incidents that the FBI and other organizations have opted not to share. Recorded activity among white supremacist groups has doubled in the past year. We are dealing with levels of antisemitism both in the United States and abroad that demand action from international leaders. We need a way to protect Jewish people from discrimination and persecution, but to do that, we need to define the category that is entitled to protection.
This is a complicated, albeit necessary, balancing act. From an ethical perspective, the government has a responsibility to protect minoritized and vulnerable populations. However, this must be done without further marginalizing the community, thus making the situation worse. The key to successfully integrating government protections into situations that center on existential definitions of self is understanding the purpose of use: to unite, rather than divide.
On December 16, 2019, Donald Trump attempted to solve this problem by issuing an executive order that expanded on Title VI of the Civil Rights Act of 1964. The first paragraph of Trump’s executive order states that the policy is not only an attempt to combat antisemitism, but also to protect students who are facing harassment in schools and campuses.
The first section asserts, “While Title VI does not cover discrimination based on religion, individuals who face discrimination based on race, color or national origin, do not lose protection under Title VI for also being a member of a group that shares common religious practices. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.” This was the first presidential mandate directed at all federal agencies informing them that antisemitic discrimination could potentially violate Title VI and emphasizing the acceptance and use of the International Holocaust Remembrance Alliance’s definition of antisemitism in an official form.
However, the purpose of this executive order was overshadowed by two major issues. Though the executive order did not specifically state that Jews were to be considered a different race or nationality, it was perceived by many — particularly those in the Jewish community — as the government’s attempt to again define what it means to be a Jew. The possible repercussions of such an act were devastating to many Jews who now felt that they would be considered separate from their neighbors — Jews, not Americans — who would face the same questions about divided loyalties that had plagued so many others before them. Moreover, there were no enforceable procedures or programs that came out of the directive. Regardless of the intent, the perception of this executive order as one that would further the Us vs. Them divide, with no discernible beneficial outcomes, likely doomed its fate from the start.
On September 28, 2023, the government tried again. The Biden-Harris Administration’s National Strategy to Counter Antisemitism turned once more to Title VI of the Civil Rights Act of 1964 to address the growing problem of antisemitism in the US. Rather than enacting an executive order, eight federal agencies agreed in writing, for the first time, that Title VI of the Civil Rights Act of 1964 explicitly prohibits certain forms of antisemitism, Islamophobia, and related forms of identity-based discrimination in federally funded programs and activities.
The revised policy states, “Title VI’s protection from race, color, or national origin discrimination extends to individuals who experience discrimination, including harassment, based on their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity.” It refers to individuals of any religion, but gives specific examples of Jewish, Christian, Muslim, Sikh, Hindu, or Buddhist faiths. In addition, each of the eight agencies put out a press release and fact sheet providing tangible, proactive programs that would be rolled out within the next few months to achieve the goals set forth by the Biden-Harris Administration’s National Strategy to Counter Antisemitism.
The Biden-Harris National Strategy is unique in that its focus is on unity and inclusion. Rather than single Judaism out as a race or nationality determined by external systems of power, the Biden-Harris National Strategy expands on Title VI to include those who experience discrimination based on actual or perceived shared ancestry or ethnic characteristics. This phrase acknowledges both one’s objective and subjective experience as well as the fact that – even if we can’t (or don’t want to) name or define it, having shared ancestry or ethnic characteristics creates a community.
The inclusion of eight federal agencies who have all committed in writing to enacting specific strategies to counter this type of discrimination and persecution is a demonstrative display of unity that will help build trust between the government and these types of communities. Language and perception matter, as does the buy-in of all involved parties. The Biden-Harris strategy doesn’t get bogged down in antiquated theories or definitions that try to force a square peg into a round hole. Instead, it makes room for the complicated reality that we are facing today.
This includes the fact that Jews are not alone in the struggle for justice and tolerance. By naming Christians, Muslims, Sikhs, Hindus and Buddhists along with Jews, this policy acknowledges and respects the challenges of the multi-faith, multicultural society we live in, in which in addition to the statistics from the ADL, a 28% increase in hate crimes and bias incidents against Muslims was reported from 2021 to 2022 by the Council on American-Islamic Relations. Antisemitism is a big problem in our country, but so are other forms of identity-based hate.
Minoritized communities should be standing together to fight for equality and inclusion. Using Title VI of the Civil Rights Act of 1964 as the basis for expanding the community of protection and belonging for groups experiencing identity-based hatred and discrimination will not only help combat antisemitism. It is a way to educate and empower all of us about how we can use the power of our shared experience to come together and fight for equality, acceptance and peace. No matter how we choose to define ourselves — by race, religion, nationality, or any other identifying factor — history has shown that our voices will always be stronger together than they are separately.