The Zionist Loophole That Isn’t |
You have seen it in the comments. Maybe in the last week.
A Jewish-owned bakery is vandalized with “Free Gaza” graffiti. A Jewish professional gets blacklisted on a referral list. A Jewish family gets pushed out of a community space because the group requires its members to publicly oppose Zionism. The story shows up in your feed. You scroll the replies — and there it is, almost on cue, the same line in 15 different mouths: but they’re Zionists.
As if that changes anything.
As if Zionist is a magic word that converts an antisemitic act into a legitimate political objection. As if discrimination becomes acceptable the moment the person discriminated against can be assigned a label the discriminator prefers. As if civil rights law contains a quiet loophole that says: yes, we protect Jews — except the Zionist ones, which is to say almost all of them, which is to say the loophole eats the protection whole.
There is, in fact, a theory of that loophole.[1] It is now being tested — repeatedly, in federal court, by businesses and community organizations who have decided to find out whether it works. The good news, from the perspective of the law: it does not work the way its proponents believe it does. The harder news: there is one narrow seam where it might. And the courts are deciding, in real time, whether to widen the seam or close it.
This piece is about what the law actually says.
The theory goes like this. Federal civil rights law — Title II of the Civil Rights Act of 1964, which is the statute that ended segregated lunch counters across the American South — prohibits public accommodations from discriminating against customers on the basis of “race, color, religion, or national origin.” What it does not prohibit, on its face, is discrimination based on political views. So, the reasoning goes, a business can refuse service to “Zionists” — meaning, in practice, anyone who believes Israel has a right to exist as a Jewish state — because Zionism is a political position, and politics is not on the protected list.
It is a clever theory. It has the structural elegance of a tax shelter and the moral elegance of an HOA bylaw.
It is also wrong. Or, more precisely: it is wrong in almost every case where someone actually tries to use it. And the cases now winding through the federal courts are systematically demonstrating why.
The first reason is the statute. Title II protects four categories. Jews are covered under at least three of them.
Under the religion prong, Jewish identity is straightforwardly protected.
Under Section 1981 of the Civil Rights Act of 1866 — the post–Civil War statute that has been on the books for 160 years — the Supreme Court held in Shaare Tefila Congregation v. Cobb that Jews are protected as a “race” within the meaning of the statute, because they constitute “an identifiable class” facing discrimination “solely because of their ancestry or ethnic characteristics.”[2]
Under the national origin prong, discrimination targeting Jews based on perceived Israeli or Jewish-diaspora identity is also covered.
So before any argument about Zionism even begins, a business that refuses service to a Jewish customer has already implicated three independent strands of federal civil rights protection. The “but it’s just political” defense has to thread a needle so narrow that, in most real-world cases, it cannot thread it.
The second reason is evidentiary. When the discrimination is dressed up as political, courts ask what the conduct actually looked like. If the customer was identified by Jewish........