Why American Law Can’t Decide What a “Jew” Is
By G.E. Less
A bizarre legal quandary lurks beneath the headlines of surging antisemitism: We can’t seem to define who qualifies as a Jew under American law. If that sounds absurd – like trying to define “good” or nail jelly to a wall – it has very real implications.
Hate crime laws and civil rights protections hinge on clear definitions of the groups they shield. We know what “Black” means in law, who counts as “women,” or what constitutes being “queer.” We even have a working grasp of categories like “foreign” or “national origin.”
But “Jew”?
The law stammers and shrugs. Unless we settle this definitional crisis, the very foundation of antisemitism protections starts to wobble.
And with anti-Jewish hate crimes reportedly at historic highs, that’s a foundation we can’t afford to crumble.
Hate Crimes Statistics Soar Amid an Identity Crisis
According to our political leaders and their statistics, rising antisemitism is not a matter of debate – it’s starkly evident in crime data. According to the FBI’s latest Hate Crime Statistics, anti-Jewish hate crimes jumped by nearly 63% in 2023, soaring from 1,122 incidents in 2022 to 1,832 in 2023. That represents the highest number of anti-Jewish hate crimes in almost three decades.
By another metric, Jewish Americans are roughly 2% of the U.S. population. Yet, they accounted for 15.4% of all hate crime incidents last year, including about two-thirds of all religion-based hate crimes.
The upward trend only accelerated into 2024: FBI data show 1,938 anti-Jewish criminal acts in 2024, a further 5.8% rise to the highest annual total ever recorded since the FBI began tracking in 1991.
And the Anti-Defamation League (ADL), which also counts non-criminal incidents like harassment (and maybe even some satire), logged 9,354 antisemitic incidents in 2024 – a 5% jump from 2023 and the worst on record since the ADL started tracking in 1979.
These numbers are alarming. Synagogues defaced, Jewish students harassed on campus, Orthodox Jews assaulted in the street – the headlines abound. ADL’s CEO Jonathan Greenblatt warns that since Hamas’s October 7 terrorist attacks, American Jews “have not had a moment of peace,” facing hate in “schools, on campuses, in public spaces, at workplaces, and in Jewish institutions.”
In short, antisemitism is back, BIGLY.
But even as society scrambles to combat this rise in Jew-hatred, a nagging question hovers: Who exactly are we protecting when we say “no antisemitism allowed”?
“Jews,” of course, you answer.
But press further: is Jewishness a religion? An ethnicity? A race? All or none of the above?
Legally, hate crime statutes and anti-discrimination laws need reference points. Yet “Jew” remains remarkably indefinable under U.S. law.
This isn’t a new conundrum, but the current crisis throws it into sharp relief. It’s a bit like outlawing bias against “good people” without ever pinning down what “good” means – an abstract idea with no clear contours.
The ADL’s own motto is “Fighting Hate for Good.” We think and feel we know what that means. Sadly, the ADL cannot satisfactorily define either “Hate” or “Good.” And neither can American Law.
Not Your Typical Minority: Jews and the “Discrete and Insular” Dilemma
America’s constitutional tradition gives special care to certain vulnerable groups. In the famous U.S. v. Carolene Products footnote 4, the Supreme Court noted that “prejudice against discrete and insular minorities” – groups isolated and marginalized in society – may call for “more searching judicial inquiry” to protect them. This concept underpins why laws single out categories like race, religion, sex, etc., for protection.
The implicit image is of a group that’s visibly distinct, politically powerless, and segregated (historically, think African Americans in the Jim Crow era – a discrete and insular minority if ever there was one).
Now, do American Jews fit that bill? It’s complicated.
On one hand, Jews have been a minority targeted by prejudice for centuries, often living apart in ghettos or enclaves in the past. On the other hand, in modern America, Jews have arguably shattered the “insular” mold. Far from being shut out of power, Jewish Americans today are woven throughout the highest echelons of society.
They are not a visually identifiable racial bloc – Jewish Americans can be of any race, and about 92% identify as white by ethnicity. They don’t huddle uniformly in isolated communities (aside from a few Orthodox pockets); most Jews are highly integrated into mainstream American life. And by many measures, they’re extraordinarily successful.
On average, U.S. Jews are wealthier and better educated than the general population. Over half of Jewish households earn above $100K (versus 19% of Americans overall), and 58% of Jewish adults are college graduates (versus 29% of Americans). This is hardly the profile of a powerless underclass.
To put it bluntly: Jews aren’t exactly huddling, impoverished masses in America – they’re more like a fixture of the establishment. Walk into elite universities, Fortune 500 C-suites, Hollywood studios, or the halls of Congress, and you’ll find Jewish representation far above their 2% slice of the population. That reality doesn’t negate the very real hate they face – but it does scramble the usual logic of minority protection.
The law’s conception of a “protected class” assumes a clearly defined group that can be objectively identified and has faced systemic barriers. With Jews, even their perceived status flips depending on who you ask.
Extremists on the far-right insist Jews are not white at all – in white supremacist thinking, “Jews have generally been considered nonwhite,” an alien race polluting the purity of the white race.
Meanwhile, far-left identity activists paint Jews as hyper-white – “the epitome of whiteness, even hyper-whiteness,” lumping them in with the privileged majority.
In other words, the same Jewish person might be cast as a sneaky minority outsider by one ideologue, and as an extra-white oppressor by another.
As one legal scholar dryly observed, those filled with group hatred tend to peg Jews as occupying “whatever racial status they most disdain.” It’s a damned-if-you-do, damned-if-you-don’t scenario that underscores how slippery the concept of Jewish identity is in the American social framework.
This paradox undercuts the rationale of treating Jews as a classic “discrete and insular minority.” They’re not visibly discrete in the way skin color or gender might be, and they’re not politically insular when nearly every U.S. administration, Democrat or Republican, appoints numerous Jewish officials and falls over itself to condemn antisemitism.
Jews absolutely have faced vile prejudice and violence – but the model of group vulnerability that underlies things like affirmative action or suspect classification in constitutional law fits them about as well as a bar mitzvah boy’s suit fits Grandpa.
The Indefinablity of Jew: Religion? Race? Ethnicity? The Legal Identity Crisis of “Jewishness”
So, if “Jew” isn’t a race, and it isn’t strictly a religion, and it isn’t exactly a nationality, how does the law classify it? The uncomfortable answer: with great difficulty and inconsistency.
U.S. civil rights laws were not written with Jews neatly in mind, so over time, lawyers and courts have had to perform linguistic acrobatics to slot Jewish people into existing protected categories.
Under federal anti-discrimination law, religion is a protected class – so in theory, Jews are covered as a religious group. Indeed, in contexts like employment (Title VII of the Civil Rights Act of 1964), if a boss fires someone for being Jewish, it’s treated as religious discrimination. But many American Jews are secular or identify culturally more than religiously. (In a 2020 Pew survey, more Jews said being Jewish is mainly about culture or ancestry than about religion.) And anti-Jewish bigotry often targets ethnic or racial notions of Jewishness – the slur-spouting bigot doesn’t particularly care if his victim keeps kosher or goes to synagogue.
This gray zone became a legal chasm in education law. Title VI of the 1964 Civil Rights Act prohibits discrimination based on race, color, or national origin in federally funded schools, but pointedly excludes religion. For decades, that meant Jewish (or Muslim, or Sikh) students harassed for their religion technically weren’t protected by Title VI.
After a rise in campus antisemitism, policymakers finally jerry-rigged a solution: treat Jewish students as covered under ethnicity or ancestry. Since 2003, the official federal position has been that Jews are protected from “racial or ethnic” discrimination under Title VI, even though the bias is religious in flavor. It’s a clumsy workaround that essentially says: we’ll pretend anti-Jewish bias is racism or ethnic bias when it happens at school.
Why?
Because if Jews are seen as “entirely a religious group,” Title VI offers them no protection at all. And nobody wants to admit our flagship civil rights law left Jews out in the cold.
Courts have reluctantly gone along with this charade. The Supreme Court provided a crucial assist in the 1980s by ruling that Jews (and by extension other ethno-religious groups like Arabs) can be considered a “race” under certain civil rights laws – not based on modern genetics, but on what 19th-century Americans thought of as races.
In Shaare Tefila Congregation v. Cobb (1987), a synagogue in Maryland that had been vandalized with swastikas sued under a post-Civil War law (42 U.S.C. §1982), which guarantees property rights regardless of race. The lower courts originally tossed out the case, reasoning that Jews are “white” folks, so racial bias laws don’t apply.
But in a unanimous reversal, the Supreme Court said not so fast. It noted that back in 1866, “Jews were among the peoples considered to be distinct races,” and Congress intended to protect them.
Therefore, even if today we don’t scientifically deem Jews a separate race, they count as one for the purpose of that law.
This logic is equal parts clever and awkward. Essentially, the Court maintained that Jews can sue as a race because their persecutors viewed them as a separate race.
The law, in other words, cares less about the actual taxonomy of Jews and more about the biased perception of the attacker.
It’s a bit like saying: “If a thug thinks red-haired people are a distinct inferior race and attacks them, then for legal purposes, redheads are a race.”
In the Shaare Tefila case, the synagogue plaintiffs explicitly argued not that Jews are scientifically a race, but that the “racist vandals” mistakenly saw Jews as a distinct race – and that’s enough to invoke race discrimination laws.
The Supreme Court agreed. In doing so, it papered over a gaping hole: there is still no clear, affirmative legal definition of who is a Jew, only a recognition that anti-semites think they know one when they see one.
Fast forward to today, and this fudge remains the status quo.
Just in 2023, the Biden administration reiterated through new guidelines that Title VI covers Jewish students by interpreting Jewishness as an ethnic or ancestral category – essentially canonizing the Shaare Tefila principle across agencies.
It’s a well-intentioned move to make sure rising campus antisemitism has a legal remedy. But it also highlights the surreal state of affairs: to protect Jews, the government has to tiptoe around the fact that “religion” alone won’t cut it, and so it semi-officially recasts Jews as an ethnic group.
Yet, even as the law twists itself into pretzels to categorize Jews, it resists giving a straight answer to “What is a Jew?”
Are Jews a race? The question makes most people (especially Jews) cringe – the notion of a “Jewish race” was the pseudo-scientific basis for Nazi persecution, after all.
Are they purely a faith community? That fails to capture the many secular Jews or the ethnic pride of people who hardly ever set foot in a temple.
Are they an ethnic group? Sort of, but Jewish identity transcends nationality and encompasses a mix of cultures from Ethiopian to Russian to Yemeni.
Legally defining “Jew” starts to feel like grabbing smoke; every time you think you’ve got it, it slips away.
Even the ADL – America’s leading anti-Jewish hate organization – stumbled over this definitional quagmire. In 2020, amid nationwide racial justice protests, the ADL briefly adopted a new definition of “racism” that framed it strictly as the oppression of people of color by whites. Under that definition, since most American Jews present as white, antisemitism technically wouldn’t count as racism.
That led to a public outcry (and not just from Whoopi Goldberg’s infamous remarks downplaying the racial aspect of the Holocaust). It was plainly absurd: by that logic, Nation of Islam leader Louis Farrakhan – who spews venom about “Satanic” Jews – wouldn’t be a racist, because his targets are “white.”
As one commentator noted, “Antisemites almost invariably regard Jews as a race,” so any scheme that erases that is blind to reality.
The ADL hastily backtracked and broadened its definition, implicitly conceding that Jew-hatred doesn’t fit neatly into our trendy identity boxes. It’s sui generis – its own beast.
The Indefinablity of Jew: No Definition, No Justice? Why This Matters
At this point, you might ask: So what if “Jew” is hard to define? We all know antisemitism when we see it – does it really threaten hate crime laws?
In a practical sense, hate crime statutes are indeed being used to prosecute antisemitic attacks today. A thug who beats up a rabbi while shouting “dirty Jew” can and will be charged with a bias crime – typically under the category of religious bias, since that’s the easiest peg to hang it on. Prosecutors don’t need to convene a Sanhedrin to certify the victim’s halachic status; they just need to show the perp was motivated by anti-Jewish animus.
In fact, FBI guidelines explicitly say that even if an offender is mistaken about the target’s group (say, attacks a Sikh thinking he’s Muslim, or a dark-skinned Latino thinking he’s Black), it still counts as a hate crime – it’s the offender’s biased perception that matters. The THOUGHT is the CRIME.
By that logic, whether the victim was “truly” Jewish or just perceived as such is almost beside the point.
So one might argue the system has found a way to sidestep the need for a strict definition: fake it ’til you make it. Call Jewishness a religion when convenient, an ethnicity when needed, even a race when you must, and prosecute the haters under whichever category sticks. There’s an ad hoc quality to it, but it generally works to get the job done.
No sane judge or jury wants to let an anti-Semitic criminal walk on a technicality like “Jews aren’t a real race.” In our collective moral understanding, antisemitism is obviously a form of invidious discrimination and violence, and it deserves punishment just like racism, sexism, or homophobia. No one in their right mind wants to open a loophole where Jew-bashers get a free pass because of semantic quibbles.
And yet, relying on “we know it when we see it” is a risky way to make law. Vague categories can be a constitutional problem. Criminal laws, in particular, can be struck down as void for vagueness if they don’t draw clear lines about what’s prohibited.
Imagine a clever defense lawyer arguing that a hate-crime statute enhancing penalties for crimes motivated by bias against “religion” doesn’t apply here because the victim was targeted for being ethnically Jewish, not for practicing Judaism. Or picture a lawsuit contending that giving Jews special protection as an ethnic group violates equal protection because, unlike truly discrete minorities, Jews can blend in and thus shouldn’t get unique treatment.
Far-fetched?
Maybe. But the cracks in the legal foundation are there.
Consider this provocative scenario: If tomorrow a court held that “Jewish” is solely a religious classification and not an ethnicity, vast swaths of antisemitism protection could collapse overnight. Hate crime laws at state and federal levels often enumerate religion and ethnicity; a ruling that Jews don’t meet any defined ethnicity or race could limit those to only religious bias cases (potentially excluding secular or ancestral antisemitism). Civil rights claims under statutes like Title VI would crumble if Jews were deemed outside the statute’s scope (since Title VI doesn’t cover religion and previously shoehorned Jews in as ethnic/racial).
It would be a lawyer’s dream and a societal nightmare: an open invitation for antisemites to act with impunity in areas not explicitly covered.
Is such a legal rollback likely?
In the current climate, absolutely not – if anything, courts and legislators are expanding protections, not withdrawing them. Bi-partisan task forces in Congress are working to beef up anti-antisemitism measures, not weaken them.
But the underlying tension remains unresolved: Jewish Americans get “special” legal protection (like other minorities) under a set of assumptions that don’t cleanly apply to them. It’s a jerry-rigged framework held together by historical memory (we remember that antisemitism is dangerous) and judicial pragmatism (we pretend Jews are a race or ethnicity when we must).
As antisemitic incidents spike, this kludge gets stress-tested. Each news cycle about Jewish people or Israel seems to unleash another wave of vicious rhetoric and violence – which in turn prompts more vigorous calls for crackdowns, investigations, and legal action. Universities are pressured to discipline antisemitic speech; states are passing laws adopting broad definitions of antisemitism (like the controversial IHRA definition) to help identify Jew-hatred.
All of this is well-intended – but it dances around the core issue: who are we protecting under the label “Jew”?
Until American law squarely faces that question, its answers will remain clumsy and potentially unfair compared to protections for other groups.
The Indefinablity of Jew: An Uncomfortable Question We Can’t Ignore
We end up in a strange place: rising antisemitism is exposing the thin ice upon which Jewish protections rest. No one wants to admit that our legal system, which prides itself on equality, never definitively figured out what to make of the Jews.
Historically, Jews didn’t fit the black/white binary of American racial thinking; they aren’t easily slotted into the majority/minority narrative; they achieved successes that complicate claims of systemic powerlessness, yet they remain targets of ancient hatreds that absolutely mark them for who they are.
The law’s answer so far has been essentially, “Don’t worry about the fine print – of course we’ll cover you, we just won’t say exactly how.”
But as the saying goes, sunlight is the best disinfectant. Perhaps it’s time to confront this head-on. Maybe we need an honest legal definition of “Jewish” for anti-bias purposes – an acknowledgment that Jewish identity can be religious, ethnic, cultural, and racial all at once.
Other countries have wrestled with this (Israel’s own Law of Return had to define “who is a Jew” for citizenship, a hugely contentious process). The U.S. has wisely avoided rigid definitions – one shudders recalling that Nazi Germany zealously defined “Jew” by blood quantum. We want no part of that.
Yet, if we fail to define the protected class, we hand ammunition to those who would deny that antisemitism is “real” or distinct.
It may fall to courts or lawmakers to articulate what a “Jew” is for the purposes of the law. Is Jewishness to be treated as an “ethnic group” (much like Hispanic, which the U.S. government long treated as an ethnicity)?
Courts have already gone in that direction, noting that if a broad category like Hispanic (encompassing all races) is deemed a protected race in discrimination law, “a fortiori Jews, who have been a ‘people’ for three thousand years, are also protected.”
Alternatively, is Jewishness a matter of ancestry/national origin – meaning antisemitism is a form of national origin discrimination? (That was essentially President Trump’s 2019 executive order approach, sparking debate about whether he was classifying Jews as a nationality).
Or do we carve out a unique sui generis category for antisemitism, acknowledging it doesn’t neatly map onto our usual boxes?
None of these options is perfect or easy. But continuing with the wink-nudge “we all know who Jews are” approach may not suffice in an era when everything is challenged in court. We live in a time of cynical lawfare, where bad actors look for loopholes. The last thing we want is some twisted victory in which an antisemitic agitator convinces a judge that “Jews aren’t a real class under this statute” and walks free, while the Jewish community watches in horror.
As uncomfortable as it is to ask, “What is a Jew?”, the events of the day demand we grapple with it. Rising antisemitism has torn off the Band-Aid covering this intellectual wound. The courts and the public will have to reconcile the indefinable nature of Jewish identity with the indispensable need to protect Jews from hate-motivated harm.
It’s a paradox, indeed – nearly as old as the Jewish people themselves. But the stakes – both moral and constitutional – are too high to leave this question in the shadows. America must find a way to define the “Jew” in legal terms without demeaning the richness and complexity of Jewish identity. Otherwise, we risk a scenario where the law’s protection of Jews is as mutable and fragile as the public opinion that surrounds them.
And given the dark tide of antisemitism that’s rising, that is a risk we simply cannot afford to take.
