Why Trump’s Executive Order on Anti-Semitism Touched Off a Firestorm

What are Jews? Members of a religious group? A race or an ethnicity? A nation? Some mixture of them all, or something else entirely?

As a debate among the Jews, this question may be academically interesting or, depending on your point of view, incredibly tedious. But as a legal question, it matters a great deal. American antidiscrimination law covers certain protected categories. Title VI of the Civil Rights Act prohibits discrimination in programs receiving federal support on the basis of “race, color, or national origin,” but—unlike many other antidiscrimination provisions—not religion.

So if Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity.

But the federal government—starting in the George W. Bush administration, and more formally during the Obama administration—began to settle on a more tailored answer. Title VI does not cover religion-based discrimination. But when discrimination against Jews—or Muslims or Sikhs, for that matter—is based on “the group’s actual or perceived ancestry or ethnic characteristics,” or “actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity,” the government found, then that discrimination falls under Title VI’s purview. Anti-Semitic discrimination is unlawful under Title VI to the extent that it targets Jews as a racial or national group.

This seemed appropriate. After all, anti-Semites very often envision and target Jews as a racial or national group. Secular Jews are by no means immunized from anti-Semitic attacks. And Jews have vigorously resisted the Protestant-oriented insistence that Jewishness is reducible to a religious identity. An antidiscrimination regime that is blind to this