Jews, Bonadona and qui bono

Are Jews a distinct race? Does it matter? Is it good for the Jews?

The questions aren’t new. But a 2018 employment discrimination case has returned them to the spotlight. Bonadona v. Louisiana College et al. has captured attention, both because it poses the question of whether today’s Jews constitute a race in particularly sharp terms, and because recent rulings have responded to that question in particularly controversial ways.

A summary: Joshua Bonadona was born to a Jewish mother and Catholic father, who (according to his lawsuit) raised him “both culturally and religiously as a member of the Jewish community.” While an undergraduate at Louisiana College — a Baptist institution — Bonadona converted to Christianity. He shared this decision with his football teammates and coaches, and often led the team in its Christian devotional. Bonadona graduated in 2013, and four years later, he applied for an assistant coach position at his alma mater. According to the suit, Louisiana College disqualified Bonadona from the position because of his “Jewish blood.”

The college strenuously denies this allegation, but its veracity wasn’t in question this summer. Rather, the courts were asked to assume Bonadona’s claim was true for the sake of legal argument, and to determine whether he had standing to sue on grounds of racial discrimination under Title VII of the 1964 Civil Rights Act. Title VII prohibits employers from discriminating on the basis of “race, color, religion, sex or national origin.” It provides religious institutions an exemption; they can favor applicants of their preferred faith.

But Title VII doesn’t say anything about whether Jews constitute a race.

Bonadano’s lawsuit asserts that they do — that “people of Jewish heritage are protected as a distinct race under Title VII of the Civil Rights Act of 1964.” And because Bonadona defines his own race as “Caucasian-Jewish,” he claims he should be entitled to Title VII remedy. Louisiana College’s response claims he does not, because today’s Jews don’t constitute under a race under Title VII; it filed for a summary dismissal.

To recap: a Jew who converted to Christianity is arguing that today’s Jews constitute a race under the law, that he’s racially Jewish, and thus that a Christian college deciding not to hire him on the basis of his Jewish heritage should be ruled racial discrimination. The Christian college is arguing that even if it had discriminated as alleged, today’s Jews don’t constitute a race under the law, and so no racial discrimination occurred.

Got that? Good. Here’s where things get complex.

Bonadona bases his claims on a 1987 Supreme Court precedent, Shaare Tefila v. Cobb. Shaare Tefila, a Conservative congregation in Maryland, sued eight men for vandalizing its synagogue with antisemitic graffiti. The congregation argued that the vandalism constituted “racially discriminatory interference with property rights,” which is legally prohibited under the Civil Rights Act of 1866. Based on that law, Shaare Tefila claimed, Jews were protected from racial (as distinct from religious) discrimination.

The district and circuit courts ruled against the congregation, concluding that in the 1980s, Jews didn’t constitute a race. The Supreme Court overruled them. “Whether or not [Jews] would be classified as a distinct race in terms of modern scientific theory,” the justices declared in a unanimous decision, “[the 1866 Congress] intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination.”

Do today’s Jews constitute a race? In Shaare Tefila, that question wasn’t legally relevant. What mattered to the Supreme Court was that in 1866, Congress viewed Jews as an “identifiable class” entitled to protection from racial discrimination. The racial ideation of 19th-century legislators ruled.

Bonadona v. Louisiana College appears, superficially, to replay Shaare Tefila v. Cobb. But Bonadona (unlike Shaare Tefila) explicitly defined Jews — today’s Jews — as a race. And his complaint invoked the Civil Rights Act of 1964, not 1866.

Nonetheless, in July, federal judge Mark Hornsby followed the Supreme Court’s suit. He explicitly set aside recognition that “scientists have concluded that racial classifications are for the most part sociopolitical rather than biological in nature.” He deferred to the same nineteenth-century racial ideation as Shaare Tefila, and extended its reasoning to Title VII.

Louisiana College objected. It argued that Hornsby’s ruling ignored the intentions of the 1964 Congress, which (the college claimed) employed language that clearly departed from the racial ideation of its 1866 predecessor. Jews might have constituted an “identifiable class” for the latter, but they didn’t for the former. And Bonadona’s complaint had appealed to the former.

On August 10, federal judge Dee Drell overruled the college’s objection and advanced the case toward trial. Drell, like Hornsby, didn’t take up the question of whether Jews constitute a race. He did express dismay that “the parties have surprisingly chosen to litigate extremely serious issues, the determination of which may affect national policy across the board in a case that is seriously factually disputed.”

So, nu, is this good for the Jews?

For all of Title VII’s benefits, the law serves as a how-to guide for employers seeking to protect themselves from the ranks of the unemployed. Anti-discrimination legislation supplies the rules to the ruling classes: how to play the game without incurring legal liability. In the face of apparent discrimination, and despite the best intentions of legislators and judges, the system perpetuates rather than ameliorates pernicious social divisions.

Bonadona reveals why, by illuminating the absurd logic of the U.S. legal system. A Jew who doesn’t identify as a Jew religiously is using a crown jewel of U.S. civil-rights legislation to fight what appears to be a clear-cut case of antisemitism. Those who deny that Jews constitute a race — including Jews who don’t identify as Jews racially — have been driven to oppose his claim.

Recent media commentaries have made a compelling case for that opposition, rightly arguing that Bonadona is haunted by the ghosts of Nuremberg. But they overlook the precedent of Shaare Tefila. They fail to appreciate what a ruling against Bonadona would’ve generated.

Behold the quantum Jew, whose identifiability as a class depends on whether twenty-first-century observers make their frame of reference the nineteenth or twentieth century. Judges’ refusal to define Jews as a distinct race might appear to protect Jews from the resurgence of historical chauvinism. Ironically, though, the ambiguous, arbitrary reasoning underlying their decisions risks providing recourse to racists.

In these times, anything that gets Jews talking openly and honestly about how to answer the question “who’s a Jew?” is probably good for the Jews. But this is not just a Jewish question. It cuts to the heart of debates about intersectionality: about the ways in which our legal system demands participants choose individual, identifiable classes to represent their multiple identities and interests. If Bonadona v. Louisiana College can force us to more fully reckon with this problem, it will in fact be good for

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