Defending Jews From The Definition of Antisemitism 

Abstract

The 2023 Israel-Gaza conflict has ignited an intense legal and ethical debate over the definition of antisemitism, leaving deep scars on communities and college campuses.  This debate clashes over one major question: does sharp criticism of Israel amount to antisemitic speech?  Through various legal instruments, U.S. law has accepted this premise.  

This Article argues against such stretching of the definition of antisemitism and develops a novel legal framework to challenge it. Existing scholarship has shown that antisemitism is often weaponized against Palestinians and their liberation struggle.  Widening the scope of this critique, we theorize an additional layer of harm, imposed upon U.S. Jews.  We argue that the broadening of the definition of antisemitism has resulted in a narrowing of Jewish identity and a delegitimization of antizionist and nonzionist Jewish communities.  Constructing Jewish identity along rigid and fixed lines, the contemporary legal definition of antisemitism imposes upon Jews a straitjacket of Zionism

This Article begins by explaining the peculiar positionality of Jews within the U.S. liberal legal order, examining how Jewish communities have often articulated political commitments through religious vocabularies.  As such, Jewish identity presents a challenge for American liberal ideas regarding religion.  The redefinition of antisemitism to protect the state of Israel reflects a failed attempt to respond to this challenge.  It favors one specific version of Jewish (Zionist) while suppressing others. The Article then moves on to track the evolution of the legal definition of antisemitism vis-à-vis the state of Israel, from post-WWII cases, to what we dub as the “IHRA-era.”  The codification of the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism has stigmatized anti-Zionists and other critics of Israel as antisemites.  Following a detailed account of the harms to pro-Palestinian actors, we advance to the heart of our argument, arguing that IHRA -type rules discipline Jewish identity and diminish the richness of Jewish political traditions.  

To combat this harm, the Article develops two legal arguments. First, we argue that for many American Jews, criticizing Israel is a way to exercise their religious freedom. Further, we argue, the redefinition of antisemitism should be seen as a governmental interference in religion, deciding the content of Jewish identity, in violation of the Establishment Clause. Second, we argue that anti discrimination laws should protect Jews who are targeted as Jews due to their political position. We recognize two types of discriminatory dynamics: (1) discrimination based on association and solidarity with Palestinians; and (2) discrimination based on stereotypes regarding how Jews ought to perform their identity. 

Keywords: antisemitism, Israel, Palestine, discrimination, religious freedom, constitutional law