Mecca is universally regarded as the holiest site in Islam. It was the birthplace of Muhammad, Muslims pray in its direction, and thousands of Muslims every year join in a pilgrimage to the holy city in order to fulfill the requirement of Hajj, one of the five Pillars of Islam, as described in the Quran. Islam’s historic and deeply religious connection to Mecca is indisputable. To deny this practice or belief to a Muslim student at a university or to a Muslim employee at her workplace, would be a vile and blatantly illegal form of religious discrimination. It would be classic Islamophobia, and it has no place in our society.
Like the connection between Mecca and Islam, Israel is universally regarded as the holiest site in Judaism. In Genesis, God promised Israel to the Jewish people, telling Abraham, “I will give to you, and to your descendants after you, the land of your sojourning… for an everlasting possession.” Jews have lived in the land continuously for over 3,000 years and globally, still to this day, offer prayers facing towards Jerusalem. Of the 613 religious commandments in the Old Testament (for Jews, the “Torah”), at least 204 require the land of Israel in order to be completed. It would take reams of paper to accurately and thoroughly document the deeply religious connections between Jews and Israel.
But despite seemingly insurmountable evidence to the contrary, there has been a large and influential movement to declare this belief to be somehow political — and exclusively so — even to deeply religious Jews who sincerely believe that every word in the Torah was divinely delivered by God.
The most insidious among these disingenuous claims wield the “Zionism is politics” argument merely as a pretext with which to discriminate against those religious Jews whose Zionism is purely biblical, part of the very blueprint of the Jewish religion.
Title VII of the Civil Rights Act of 1964 defines religion to include “all aspects of religious observance and practice, as well as belief.” According to the EEOC, religious protection in the workplace is defined “very broadly [and] includes not only traditional, organized religions… but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” As long as the belief is “sincere,” an employee’s religious belief is protected even if “few or no other people adhere to it.”
Even under the deepest scrutiny of these legal principles, it is simply incontestable that those who sincerely believe in biblical Zionism are protected under the Civil Rights Act. Yet, to date, Zionophobes who have made the factually incorrect argument that Zionism is purely political have succeeded in dominating the narrative — and the law.
Were an attorney to type “Zionism” into Westlaw’s All Federal and State Cases database, he or she might expect to find thousands or even tens of thousands of references to the well-known belief. What they would actually find is quite stunning: nothing. Sure, 90 total references mentioning the word Zionism do exist (in the entire history of American case law), but none of these references relate to a case that addresses the issue of Zionism as a form of religious discrimination.
This means that there is no legal precedent on the issue of Zionism as religious discrimination one way or the other. The next published case that decides religious discrimination based on Zionism will amazingly be the very first.
It is crucial to note that it is definitively not the law itself that has chilled Zionism claims. After all, there is little question that a court would find Zionism protected as a religious belief, if it were sincerely proffered by a Jewish person that believes in the God of the Old Testament and all of the commandments related to Israel cited therein.
The astonishing lack of legal claims based on Zionism, rather, demonstrates the unabashed success that Zionophobes have had with various campaigns such as BDS and scores of invariably one-sided, anti-Israel resolutions on college campuses, at the U.N., and by some labor unions and academics. The wholly-political war waged by Zionophobes has effectively intimidated and prevented religious Jews who identify as Zionists from initiating such claims.
But that is starting to change.
In June 2017, Jewish student Zionists at San Francisco State University, represented by The Lawfare Project and Winston and Strawn, sued the university in Federal Court for, among other things, violations of Title VI of the Civil Rights Act and a hostile campus environment that discriminated against Jews based on race and for their Zionistic religious beliefs. Those Zionism claims, in part, revolved around the Hillel student club being singularly and summarily uninvited from a campus “Know Your Rights” event by anti-Zionists, because of the club’s perceived Zionistic beliefs. These claims were novel, given the non-existence of Zionism religious claims in American law. An SFSU internal investigation that itself determined and conceded that the Hillel club indeed was discriminated against, was to no avail.
In eventually dismissing the case on grounds unrelated to Zionism claims, U.S. District Judge William Orrick declined to address the issue of Zionism altogether, offering no clarification on the still-unaddressed legal issue. In other words, still remaining legally unaddressed by American courts was whether Zionism was a religious belief or not. No doubt, part of the court’s reluctance to address the issue of Zionism as a religious claim, was that Title VI claims do not directly cover purely religious claims without a racial component. The allegations in the SFSU case were, in reality, not classic religious discrimination claims.
But separate claims of religious discrimination and Zionophobia against SFSU were re-asserted under California State law in a County of San Franciso State court action filed in Februrary 2019 by The Lawfare Project and Winston & Strawn. Mirroring the facts in the Federal suit, the State claims asserted that the discriminatory decision “to exclude Hillel from the [“Know Your Rights’] event was made, and then sanctioned by high-ranking university officials.” The case survived dismissal and was set for trial last week when news broke of an historic settlement between the sides.
According to the settlement (a full copy of which can be found here), SFSU agreed to hire a full time Jewish Student Life coordinator in the campus’s Division of Equity & Community Inclusion who will address issues of concern to Jewish students. The school will also allocate $200,000 “to support educational outreach efforts to promote viewpoint diversity…including …Zionist viewpoints.” Perhaps most striking of all, however, is language in the agreement that SFSU will protect Zionists from discrimination on its campus, through the university’s recognition that “for many Jews, Zionism is an important part of their identity” and that “persons of all faiths…including…Zionists” are welcome and entitled to protection on their campus. Brooke Goldstein, Executive Director of The Lawfare Project underscored the significance of the agreement, stating, “[t]oday we have ensured that SFSU will put in place important protections for Jewish and Zionist students to prevent continued discrimination. We are confident that this will change the campus climate for the better.”
The significance of the SFSU settlement cannot be understated. With anti-semitism on the rise globally and nationally, and with Jewish and Zionist students and faculty on university campuses increasingly becoming targets of discrimination and worse, SFSU’s courageous public acknowledgement of the target on Zionists’ backs — and its pledge to protect them — is nothing short of historic. The settlement not only paves the way for victims and their attorneys to finally begin seeking redress for such discrimination in courts of law, but creates a model and blueprint for other universities to follow.
Judea Pearl, chancellor professor of computer science at UCLA has already called on UCLA to take on SFSU’s position that Zionism is integral to Jewish identity. Professor Pearl explained that “[t]he new posture implies that in all matters concerning code of conduct, Zionism now attains the same protection status as any religion or nationality, and Zionophobia turns as despicable and condemnable as Islamophobia.”
Professor Pearl is right, of course. And the time has come for universities, courts, and the world to acknowledge through action what has always been true in fact: Zionism is part of the identity of the Jewish religion and denying the practice of that belief is blatantly discriminatory.
(Jeffrey Lax is an attorney, professor and department chair at the City University of New York (CUNY). He sometimes fills in as an AM talk radio host in NYC)