By: Hannah Lamberg
The presence of antisemitism in both America and abroad continues to be prevalent and drenched in hatred of a united religion and cultural group of people. While several definitions of antisemitism exist, in the simplest terms, antisemitism is a “certain perception of Jews, which may be expressed as hatred toward Jews.”[1] This can also include negative treatment toward property of Jewish individuals and/or those connected with Jews in some capacity, as well as verbal and physical attacks on the Jewish community and religious institutions and facilities (i.e., community groups, synagogues, Jewish schools, etc.).[2]
Antisemitism continues to permeate within the United States, with a notable increase in 2021.[3] Notably, a report released by the American Jewish Committee found that one in four Jewish persons encountered an act of anti-semitism during the past year.[4] This number is a strong estimate of the actual occurrence of anti-semitism in the United States, and the American Jewish population is clearly outraged and frightened by this statistic.[5]
Because of the widespread anti-semitism in the United States, International Holocaust Remembrance Day remains a significant reminder of the mistreatment of Jewish persons.[6] This day of remembrance for acts against the Jews by the Nazis during the Holocaust comes almost two decades after the United Nations General Assembly (UNGA) declared January 27 an annual Holocaust Remembrance Day for its member states (those states that are members of the United Nations).[7] In addition to Holocaust Remembrance Day serving as an opportunity to reflect and remember the horrific treatment of Jews during the Holocaust, this day also allows for annual reminders that anti-semitism continues to exist in our world today.[8] There are efforts to decrease anti-semitism within the United States.[9] Specifically, the state of Iowa’s Governor, Kim Reynolds, recently signed several bills into state law codifying a definition of anti-semitism and penalizing and restricting businesses that boycott Israel.[10] By doing this, Iowa takes an important step in protecting the State of Israel and the Jewish people from continued discrimination and mistreatment.[11]
Arguably one of the most important cases regarding anti-Semitism within the United States legal system, at a judicial level, is Shaare Tefila Congregation v. Cobb, for its intersection of race, religion, and culture in protecting Jewish people and their property rights.[12] This case originates with a large amount of anti-Semitic slogans, phrases, and symbols painted on the walls of the Shaare Tefila Congregation’s Synagogue on November 2, 1982.[13] Several months after this, the Congregation as a whole and some individual members of the synagogue filed a lawsuit in federal court in the United States District Court for the District of Maryland.[14] Petitioners alleged that the marking on the synagogue’s walls constituted desecration and violated their equal right to protection of private property, as should be equal to the rights enjoyed by white citizens.[15] There were also claims against the respondents for Maryland common law of intentional infliction of emotional distress, nuisance, and trespass.[16] The trial court granted both the defendants’ motion to dismiss under Federal Rules of Civil Procedure 12(b)(1), lack of subject-matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted.[17] The Petitioners appealed to the Fourth Circuit Court of Appeals, and the appellate court affirmed the trial court’s dismissal of all the claims.[18] The U.S. Supreme Court granted certiorari, and the Court reversed the holding of the Court of Appeals.[19]
The breadth of 42 U.S.C. § 1982, in detailing who is protected under the statute, represents the major issue on appeal at the Supreme Court.[20] Specifically, the statute exists to provide all citizens of the United States, “the same right … as is enjoyed by white citizens… to inherit, purchase, lease, sell, hold, and convey real and personal property.”[21] The primary purpose of this section of the statute is to protect minority racial groups against discrimination relating to their property and provide a legal right for those people to act against discriminatory inference with these such property rights.[22] From this, the analysis shifts to the distinction between a group’s self-identification and the external attitudes and actions taken against that minority group.[23] The Petitioners argued unsuccessfully at both the trial and appellate levels that the Congregation members were entitled to legal remedies because the defendants acted in the way they did, essentially vandalizing the synagogue’s exterior, because of their association of the Jews as a distinct racial group.[24] These arguments focused, not on the fact that Jews may not be a racially distinct group, but that the defendants’ mistreatment of their synagogue was motivated by religious intolerance and discrimination.[25] The Court of Appeals believed that discriminatory actions against Jews did not fall under the umbrella of racial discrimination covered by the statute, thereby agreeing with the District Court’s rationale in dismissing the § 1982 claims.[26] The idea underlying the appellate level argument was the perception of the minority group by the defendants not satisfying the statute.[27]
In addition to this, the discussion of the appellate court’s arguments at the Supreme Court distinguishes between the current understanding of and the statute’s legislative history.[28] Specifically, the issue under a § 1982 claim need not include only racial discrimination on behalf of the defendants; it also needs to be committed against a group that Congress intended to protect from racial discrimination and intolerance at the time of the statute’s creation.[29] Whether or not Jews are accepted as a distinct race today is not the purview of this case; the deciding factor is the climate of Congress’ understanding at the time the statute was enacted.[30] As ruled upon in Saint Francis Coll. v. Al-Khazraji, Jews and Arabs were considered a separate race requiring protection at the time of the statute’s creation, in so much as the statute “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.”[31] Because the Court focused on the purpose of § 1982 to prevent discrimination amongst distinct racial groups in their property rights, compared to other white citizens, as opposed to whether or not the Jewish people constituted a distinct race, the choice to condemn anti-Semitism was made and demonstrated within the American judiciary.[32]
Most remarkably, this case is not significant because of its discussion of Judaism as a race, culture, or religion, but a group of people entitled to protection and rights under the law. From this 1987 case dealing with the § 1982 of the United States Code, anti-Semitism needs to continue to be addressed today just as it was nearly twenty-five years ago at the Supreme Court.
[1] What is antisemitism? Non-legally binding working definition of antisemitism, Iɴᴛ’ʟ Hᴏʟᴏᴄᴀᴜsᴛ Rᴇᴍᴇᴍʙʀᴀɴᴄᴇ Aʟʟɪᴀɴᴄᴇ (2018), available at: https://www.holocaustremembrance.com/resources/working-definitions-charters/working-definition-antisemitism (last accessed Mar. 10, 2022).
[2] Id.
[3] Ira L. Black, 1 in 4 American Jews say they experienced antisemitism in the last year, Nᴀᴛɪᴏɴᴀʟ Pᴜʙʟɪᴄ Rᴀᴅɪᴏ (Oct. 26, 2021, 11:29 PM ET) https://www.npr.org/2021/10/26/1049288223/1-in-4-american-jews-say-they-experienced-antisemitism-in-the-last-year.
[4] Id.
[5] Id.
[6] Rachel Treisman, On International Holocaust Remembrance Day, revisit NPR’s stories from survivors, Nᴀᴛɪᴏɴᴀʟ Pᴜʙʟɪᴄ Rᴀᴅɪᴏ (Jan. 27, 2022, 12:54 PM ET) https://www.npr.org/2022/01/27/1076134761/international-holocaust-remembrance-day-2022.
[7] Id.
[8] Id.
[9] Id.
[10] Andrew Lapin, Iowa governor signs antisemitism, Israel boycott bills, Tʜᴇ Tɪᴍᴇs ᴏғ Isʀᴀᴇʟ (Mar. 26, 2022, 4:07 AM) https://www.timesofisrael.com/iowa-governor-signs-antisemitism-israel-boycott-bills/.
[11] Id.
[12] See generally Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987).
[13] See id. at 616.
[14] Id.
[15] See id.; See also 42 U.S.C. § 1981, 1982.
[16] See Shaare Tefila, 481 U.S. at 616.
[17] See id.; See also F.R.C.P. 12(b)(1); F.C.R.P. 12(b)(6).
[18] See Shaare Tefila, 481 U.S. at 616.
[19] Id.
[20] See id. at 617-18.
[21] Id. at 616 (quoting 42 U.S.C. § 1982).
[22] See Shaare Tefila, 481 U.S. at 617; See also 42 U.S.C. § 1982.
[23] See Shaare Tefila, 481 U.S. at 616-17.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id. at 617-18.
[29] Id. at 617.
[30] Id. at 617-18.
[31]Id. at 617-18 (quoting Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 604 (1987)).
[32] See generally Shaare Tefila, 481 U.S. 615 (1987).
