Last week, President Trump extended Title VI protections to Jews – alongside other students of race, color or national origin – on campuses that receive federal funding. This kicked off what the media called “a firestorm.” It was actually two controversies for the price of one. First, do Title VI rules restrict freedom of speech. Ironically, this became a problem only when Trump protected Jews, even though it’s a 1964 ruling. Second, are Jews like the other protected classes? How so? What are Jews, exactly?
Are we a race, a nation, an ethnic group, an extended family, a religion, or just a bunch of folks who like bagels and lox? All of these fit some Jews, but none fit all Jews, so what is going on? Even Jews debate it all the time.
Jewish identity is defined by a document, a contract that defines membership in the gang. It’s called the Torah. It tells the history and formation of a nation and in great detail the terms of the contract that the people in that nation have agreed to. The contract tells us the Party of the First Part and its principle author is God, though the scribe is Moses.
At its core, the Torah strikes a simple bargain: follow the clauses of this contract and you will get to live in a utopian nation called “Israel.” Break the contract, and there will be consequences and penalties. Some of these are material and historical – e.g., the nation of Israel will become debased, or be conquered by awful enemies – and some are metaphysical, involving how God regards you and judges your soul.
A Jews is a person who is party to this contract, even if he or she believes the divine origin of the Bible is at best a legal fiction and/or they never consciously signed up for it. The identity of a Jew transcends race, ethnicity and national origin though it has aspects of all of these and may explain why Jews survived when all the other kingdoms have faded. The Torah invented an idea of identity that was new in the world that has been emulated but never precisely replicated in its detail. It is a combination of nationality, pinned to a specific geographic place, and a portable religion, a set of rules for how to acknowledge and behave towards the universe, others, yourself, and a transcendent deity. This hybrid national-religious identity has preserved the Jews against all odds, even as it makes them singularly and almost universally vulnerable to persecution even today to an extent that defies all rational expectation given that Jews are effectively 0% of the world’s population if we round out the number.
This deal between the Torah and individuals, even those far removed from it, doesn’t exactly fit any of the usual categories – race, nation, ethnicity, language – and explains why the legal basis of the Jew’s inclusion in Title IX (which doesn’t protect religions) is so contentious. On the one hand, Jews surely deserve protections against discrimination like other people who are singled out because of their general identity – “sex, sexual orientation, gender identity, part- or full-time status, disability, race, or national origin” as the law states. On the other hand, because it doesn’t define exactly which category the Jews fit, it’s hard to defend.
So let’s review the rules of the contract that makes a Jew a Jew:
- You don’t get to sign the contract. Technically, if your mother is a Jew either by birth or because she chose it and was admitted to the contract (converted), you’re a Jew. It’s your birthright.
- Whether or not you want to live up to your end of the deal is on you. But you’re still a Jew technically even if you don’t identify as one. Most Jews in America don’t define themselves by the terms of the Bible’s contract. Some may sort of know there’s a contract tucked away up there in the attic, that Old Testament. Most have never read it cover to cover or at all, while others build their lives around it intensely, reading it and doing what you do with a contract, which is trying to fulfill it. Still others may have completely forgotten about the contract. Some know a good deal about the contract or think they have heard enough about it that they don’t want to be part of it. Many were never given the chance to read it. Others are unable to appreciate it if they do. Some are actively hostile to it. All these Jews, except the few technical heretics who renounce the contract in specific ways, are still Jews. It’s written in their DNA either because it can be traced back to Jacob (Israel), or someone along their ancestral line signed on as a convert. Some don’t even know it. There are many stories of Jews who convert, only later to find out their mothers or mother’s mother was a Jew and they didn’t even have to apply in the first place.
- There isn’t a Jew who perfectly fulfills his or her end of the Torah’s bargain. Some fall very, very short. A few may have entirely lost the knowledge that there is a contract. Most Jews who self-identify do something to mark their Jewishness. Some Jews seem to live up to the terms of the deal almost perfectly – legendary tzaddikim (“righteous ones.”).
- History shows that the descendants of Jews who don’t claim their inheritance more than likely will not be Jews within a few generations. While you can’t get out of the deal easily, you can unburden your descendants by intermarrying, converting, or by following sects of Judaism that welcome intermarriage. The 2013 Pew Study described attitudes that produce undeniable statistics of assimlation:
“Jewish adults who have only one Jewish parent are much more likely than the offspring of two Jewish parents to describe themselves, religiously, as atheist, agnostic or nothing in particular. In that sense, intermarriage may be seen as weakening the religious identity of Jews in America.”
- Nonetheless, the Jew club is open! If you’re not born into it, you can become a full-on Jew by being admitted by keepers of the contract who will ensure that you’ve read, understand, and signed the contract. It doesn’t make a difference what your ethnic, racial, national, or religious heritage is. That’s why someone of Jewish heritage can prove it with a DNA test, a DNA test does not determine who is Jewish. As a side benefit, if you choose Judaism, you will probably know a lot more about it than most born Jews.
- The “nationality” of the Jew is a part, but not all, of the contract. The Torah promises a physical tract of land, the nation called Israel. Call it Zionism 0.0. A lot of the Torah is the constitution of that nation, a utopian document detailing the laws governing how to behave as citizens in a society where everyone is responsible for everyone else. As in most of Jewish history, even when Jews don’t own the land of Israel as their Jewish nation, or Jews live outside it, this constitution governs their behavior, giving Jews a “national” identity. They way they treat other people and themselves still for the most part applies as if they lived in ancient Israel. Many but not all of the laws – the “mitzvot” or clauses of the contract – that constitute Jewish religion stem from these laws of how Jews are supposed to treat themselves, their families, each other, and the strangers who live among them.
This is why anti-Zionism is antiSemitism. When you attack the idea that Jews can and should have their own nation, when you try to erase the Jewish claim to the land of Israel, you are demolishing the essence of Jewish identity. You are trying to erase Jews. This is not withstanding all the realities on the ground: You can criticize the current State of Israel heartily and with justice; the constitution of Israel the current state is not the Torah though there’s huge overlap, including the national calendar that governs matters of work. Many individual Jews aren’t Zionists. Many Israelis are not Zionists. Some Jews, over-achieving in this arena as in so many others, are ardent, articulate, charismatic, persuasive and sometimes strident leaders of anti-Zionism. They reject the equation between being a Jew and being pro-Israel. They fight against it actively as in the BDS movement, or furtively by proposing ways to re-structure the state so the Jewish claim on it is nullified. When critiques of Israel apply standards they don’t apply to other nations, they are singling it out for special condemnation because it is a Jewish State. This is a fundamental and existential erasure of Jewish identity and an attack on Jews everywhere.
- Finally, even if you don’t believe that God is the Party of the First Part in your contract, what has kept the Jews going is acting as if the Torah has the force of divine authority. Call it the ultimate constitutional strict constructionism, or maybe originalism. That’s why Jews are forever arguing over how to apply that contract in our world and our times. As the joke goes, “That’s the tradition!”: the arguing.
But if you and I don’t agree on the fundamental terms of our disagreement, the debate is fruitless and could end in silence or violence. Jews are a nation. They are citizens of the ancient land of Israel whose borders and laws were defined and promised to them by the Torah even before they occupied that land. One could argue that the essence of the Bible’s covenant, which ends as Moses dies before leading the Israelites into the Promised Land, is about the expectation and the aspiration, and not its fulfilment. Further, that nation was only partially, inexactly, and contentiously resurrected in the 20th century, two thousand years after it was last sovereign in its own borders.
Jews are protected under the Title VI class called “national origin.” That nation is not modern Israel per se, but ancient Israel as described in the Torah. This esoteric, divinely-inspired national-utopian aspiration defines Jewish identity inside and outside of modern Israel’s borders and even beyond self-identification. I don’t know if this argument would win a U.S. Constitutional court challenge to qualifications under Title VI, but acknowledging the Torah’s contractual rules of behavior and the aspiration for the nationhood of Jews in Israel are the two parts of being a Jew, however short we fall in fulfilling the transcendent ideals of both.