It is beyond clear that in the United States, Jews have significant political influence. Many Jews occupy important levels of government, elected and appointed, and others are high profile opinion-influencers and policymakers in the media, in think tanks, and in academia. For the most part, insofar as a political response is feasible, Jews can receive one when they feel marginalized, hurt, or threatened.
Yet, though this is a tremendous privilege and something I’m extraordinarily grateful for, this is not the same thing as being empowered. Power, Carol Gilligan once wrote, means “you can opt not to listen. And you can do so with impunity.”1 Whatever else Jews are or are not in a position to do, we are certainly not in a position where we can afford not to listen with impunity. The power and influence we do have is at the sufferance of others. The minute that it ceases to be in the interests of the majority, it becomes very precarious indeed.
Far from signaling our full inclusion in American society, the political power Jews have amassed is currently serving as brute hedge against the default norm of Jewish exclusion which continues to be expressed through American law. My senior thesis, When Separation Doesn’t Work: The Religion Clause as an Anti-Subordination Principle,2 explored how the legal rights supposedly afforded to religious minorities, such as Jews, under the religion clause of the First Amendment have proven nearly entirely hollow. Here’s a statistic for you: In the entire history of the United States — from 1789 to 2009 — Jews have never once won a Free Exercise case before the Supreme Court. 3 In fact, there has been a grand total of one successful Supreme Court free exercise case in American history launched by a non-Christian group, and unsurprisingly, it represented perhaps the most flagrant breach of free exercise norms imaginable: a state city law specifically targeted at a minority religious practice, that was motivated entirely out of animus.4
This is not to say that Jews have had no protection for their religious or cultural practices. But the protection we’ve achieved is nearly entirely legislative. Jewish security in America is guaranteed by brute political force, but it is not yet recognized as a right. The mechanics that protect Jews from discrimination and unequal treatment are not considered as legal and moral imperatives — they are solely defined by what we can convince others to give us through the democratic process. There is a difference between a legal right and a legislative privilege, and it isn’t just that the former is more difficult to dislodge. I’ve already written about why I think rights are important beyond the technical protections they do and do not provide. There is considerable expressive power in being seen as a rights-holder. A person who is protected from unequal treatment merely because they currently hold the favor of the sovereign and her sword exists on a qualitatively different plane from the person whose protection stems from the fact that society — as per the strong moral norms expressed through the language of rights — considers such discrimination to be a grave normative wrong.
There are people who would say the distinction I’m drawing here is facile. The supposed moral appeal of rights is a chimera — whether through rights or other means, society only protects those who have the power to protect themselves. This was the observation of the Black Power writers at the tail end of the civil rights movement. Zionism, I think, stems from a very similar impulse: that there is no purchase in purely moral appeals — Jews will be protected only when they cease to depend on the magnanimity of others. Courts, and the rights-based arguments they represent, are a “hollow hope”5 . Political power is the alpha and omega of equal protection. If you don’t have it, you don’t have anything.
I am sympathetic to this view. I think that moral appeals and rights-based claims cannot stand against a determined majority dedicated to preserving existing inequalities. Because I don’t think the formal existence of rights protections itself grants anything, I am sympathetic to the idea that for all practical purposes self-empowerment is the best remedy. If others won’t protect you simply because it’s the right thing to do, get yourself in a position where it’s in their own material interests to assist. Or better yet, be in a position where your security isn’t in the hands of others at all.
But I still cannot adopt the idea whole-heartedly. The fact that rights often are a formalist facade does not, to my mind, mean they always are, or that they are meaningless. I think that possessing rights is a powerful social signal of full inclusion into the community. A protection by right is one that is normalized, a protection by special legislation is exceptional. I would much prefer to be in a position where I am protected because it is seen as wrong to hurt me, than to be protected simply because those who wish to hurt me are (currently) in no position to do so. The cynics would tell you that the former case does not exist. I refuse to believe that is true.
Assuming I am correct and political power is not the start and end of the discussion, I think it is very meaningful and troublesome that Jews have historically not been able to secure the protection of the courts, and have relied on their influence in the legislatures to protect them. It tells me that protecting Jews is external to the system — something that requires special effort, attention, influence and power. Left to its own devices, America too would allow for the same systematic discrimination against Jews we’ve seen throughout history. That Jews in America are in a position to block this outcome is a good thing, but the fact that it requires this constant vigilance is itself indicative of a problem.6
Last July, the 7th Circuit Court of Appeals decided Bloch v. Frischholz, a lawsuit by a Jewish condo owner against her condo association. The condo association had established a rule forbidding all residents from placing any objects outside their doorways, and interpreted it to prohibit Jewish residents from putting up a Mezuzah. In a 2-1 decision, the court held that this rule did not violate the Fair Housing Act.
No Mezuzot means no observant Jews, and in a biting dissent Judge Diane Wood (a potential Obama SCOTUS nominee and, more importantly, my Civil Procedure professor this spring) observed that the majority’s rule had the effect of allowing an absolute red-lining of Orthodox Jews from condo complexes. Moreover, there are serious indicators that the rule here was motivated by anti-Jewish hostility — the Condo Association went so far as to accuse the plaintiffs of seeking to “extract their pound of flesh” through litigation (a reference to Shylock in The Merchant of Venice). Finally, the majority proclaimed that the rule was neutral because it operated equally on the Chicago Bears fan who really wants to put out a pennant on his stoop. But of course it is facile to suggest that even the most ardent Bears fan is harmed in being barred from putting up a team pennant on his door the way that an Orthodox Jew is when she is prevented from putting up a Mezuzah. The refusal to view Jews as Jews — subsuming them within other categories — once again prevents moral actors from getting a true picture of our situation.
In the wake of the case, the Chicago city government quickly amended its own laws to prohibit this sort of behavior, and Congress may follow suit. Legislatures to the rescue.
In Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), the Supreme Court was asked to consider the constitutionality of a recently-established school district comprised solely of the village of Kiryas Joel. Kiryas Joel was an enclave of the Satmar Hasidim — an ultra-orthodox Jewish sect that generally wishes to separate itself from the outside world. They educated nearly all their children in private religious academies, however, some of their students with disabilities required additional resources that the community could not afford to provide. Luckily, the students were entitled to have these resources provided to them by federal statute, and for several years federal educators came onto the campuses of the KJ schools to provide (entirely secular) aid and assistance.
Unfortunately, this arrangement came to an end when the Supreme Court passed down two decisions, School Dist. of Grand Rapids v. Ball and Aguilar v. Felton, which held such practices violated the Establishment Clause. The students then were sent to the neighboring public schools, but that experiment ended catastrophically, with the children experiencing “panic, fear, and trauma” and the parents immediately withdrawing them. So, the community of Kiryas Joel petitioned the New York state legislature to allow it to form its own secular school district, for the sole purpose of securing the educational benefits its disabled children were legally entitled to. The legislature passed the bill, and the Kiryas Joel school district was born.
And died, under an establishment clause challenge. The Supreme Court held that, simply because the village of Kiryas Joel was a Satmar Hasidic enclave, the establishment of a school district tracking its borders was automatically suspect. This was true even though, as Justice Scalia pointed out in dissent, there are quite a few towns and even counties in the United States that are nearly 100% Christian — something which would never be contemplated as constitutionally problematic. Worse, the court presumed that even though the district was officially secular, the Satmar character of the town would inevitably act to dominate the school district and convert it into an instrument for sectarian ends — again, a concern that never seems to manifest itself in the myriad of Christian dominated institutions in America.
The Court further held that the motivation in establishing the district was to provide a religious benefit to the Satmar — even though the event which prompted the Satmar parents to seek this remedy was the most secular one imaginable: shielding their children from previously experienced trauma. Justice O’Connor’s concurrence worried that other similarly situated groups might not be able to get the legislature to pass a bill of this sort. This, of course, applies Jewish political power against them — unlike “normal” groups, Jews only should be allowed to have the rights that other marginal groups are likewise able to get for themselves. As far as the O’Connor was concerned, the natural state of the Jews was subordination, thus, it is to other subordinated groups that they must be compared. The privileges of the majority, of course, escape notice.
Ultimately, some judges were sympathetic (Justice Kennedy lamented that the Satmar were in a predicament “we put them in”), and some judges were not (Justice Stevens argued that the effect of the school district was to allow the Satmar to more effectively indoctrinate their children). But at the end of the day, it was another case where the language of legal rights acted to diminish, rather than enhance, Jewish autonomy in America. And once again, the Jewish parties were able to petition the New York legislature to pass yet another law that was tailored to meet the court’s concerns while protecting their children.
These cases are not exceptions. I was raised as a Church/State zealot with almost blind faith in the power of the judiciary to protect me and establish me as an equal member of the polity. It was stunning for me to discover that by and large, courts have not been friends of the Jews or minority religious groups more generally. Again and again, we are forced to petition the legislature for assistance where courts refuse to step in, or play defense where courts show marked hostility to the legislative victories we do manage to achieve. Goldman v. Weinberger, 475 U.S. 503 (1986), upholding a ban on Jewish servicemembers wearing Kippot, overturned by statute in 1989. Commack Self-Service Kosher Mart v. Rubin, 106 F. Supp. 2d 445 (E.D.N.Y. 2000), striking down a New York law forbidding fraudulently marketing food as Kosher.7 The message is clear: If the courts represent our nation’s arbitration on what claims persons have as a matter of right, then Jews possess very little.
It is, of course, better to be able to run to the legislature (at least sometimes) for aid than for that door to be closed, and to be sure, many marginalized groups in America do not have that option. Nonetheless, it is very meaningful that protecting Jews is something that occurs outside the standard operating procedures. It is an indicator that equality for Jews is still something that is abnormal — it requires us to keep writing in exceptions to the “neutral” rules. It is not yet the case that Jewish equality is itself neutral. The persistent strangeness of Jewish equality means that sometimes our political power is worthless because courts strike down our efforts as unconstitutional (as in Kiryas Joel and Commack). And of course, to skeptics of Jews, the fact that nearly all of our rights are legislative buttresses the idea that we are seeking “special rights” — more than we deserve or are accorded to everyone else.
More importantly, depending on political clout to protect you means you are helpless when that power isn’t there. Jews were fortunate that in neither Bloch nor Kiryas Joel there was a significant interest group outwardly hostile to them (a fact which certainly distinguishes them from many other marginalized groups, who have groups who are inherently hostile to them no matter what they are doing). But that isn’t always the case, and where it isn’t, Jews are rendered helpless.
Finally, political power can never be entirely divorced from issues of moral and legal rights, if for no other reason than the construction of the rules which dictate how one comes to obtain power are heavily tied up with legal doctrine. In United Jewish Organizations v. Carey, 430 U.S. 144 (1977), the Supreme Court found no legal wrong when a Hasidic Jewish district was “cracked” to create other majority-minority districts in the New York legislature, eliminating Hasidic representation. As law professor Michael W. McConnell noted, this case is cruel irony when read in conjunction with Kiryas Joel. As far as the legal rights world is concerned, Jews are a scary and dangerous group when the law grants us political power (Kiryas), and an irrelevant, insignificant entity when the law destroys our political power (Carey).8 When our political power can be stripped so easily, it becomes a dangerous pillar indeed to rely upon.
The status of Jews in America is simply not evidence that liberal democratic norms foster full inclusion of marginalized minority groups. Much the opposite. America shows that brute political force in a democratic system can act as a check against a norm of otherness which otherwise would act to exclude. That’s better than not possessing that power, but it is not the same thing as being recognized as full and equal members of society. And when that power is exercised by a small minority, it lasts only as long as it does not conflict with the interests of more powerful actors — the persons who really can refuse to listen with impunity. The difference between America and many other places around the world (the EU, South Africa, Venezuela) is not that America has a stronger moral ethos which demands Jews be seen as equal. The difference is simply that Jews in America, for the moment at least, possess the political wherewithal to overcome the presumption of Jewish otherization. If we lose that power, the default we’ll return to will not be one of equal respect and dignity. Not even close.
Israel, to a large extent, is simply taking this observation to its logical conclusion. Both Jews in American and Jews in Israel have concluded the moralisms will not protect them — the only shield is power. The difference is that American Jews rely on political power, and exercise that power at the sufferance of others. Israeli Jews, by contrast, rely on sovereign power (including but not limited to military power) and are extremely jealous about trying to rely on as few outsiders as possible (I do not doubt for a moment that the degree to which Israel depends on America — though they would outwardly deny that they actually “need” us and would point to the Independence and ’56 wars as proof — is something they feel extremely vulnerable about).
If one only has protections because one devotes every spare vote, dollar, resource and minute to secure them, one can hardly be said to be an equal. Equality comes when equality is normal — so normal, that you don’ t have to be perpetually on your guard to defend it. So normal that it wouldn’t occur to anyone to try and take it away.
- Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 Buff. L. Rev. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants) [↩]
- 5 Dartmouth L.J. 145 (2007) [↩]
- Stephen M. Feldman, Religious Minorities and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J. Const. L. 222, 251 (2003). [↩]
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 501 U.S. 520 (1993). The Santaria religion at issue in that case was itself a “fusion” religion that incorporated elements of Christianity in it. [↩]
- Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Progressive Legal Change? (University of Chicago Press, 2008) [↩]
- If for no other reason than it means we need to expend nearly the totality of our political resources defending ourselves, and have nothing left to devote to positive expressions of Jewish agency, to say nothing of whatever else Jews might want to advocate on that isn’t directly tied to maintaining our standing as equals. [↩]
- Particularly noteworthy because the same statute had previously been upheld by the Supreme Court. Hygrade Provision Co., Inc. et al. v. Sherman, 266 U.S. 497 (1925). Though that case was litigated on different grounds, it is extremely rare for a district court to take it upon itself to strike down legislation previously upheld under constitutional challenge and that has maintained itself unmolested for 75 years. [↩]
- Michael W. McConnell, The Church-State Game: A Symposium on Kiryas Joel, First Things, Nov. 1994, at 41. “It is the old story of the double standard…. When the legislature deliberately chops up a district dominated by a religious minority, there is no problem: the Hasidim are just “white.” But when it draws boundaries in their favor, the Hasidim become a distinct and dangerous group, and…stern warnings against “segregation” along religious lines [are issued]….”). [↩]