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Touro Law Review

Touro Law Review

Abstract

While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the scope of one federal antidiscrimination law, Title VII of the Civil Rights Act. In Bostock v. Clayton County, the Supreme Court found that the prohibition on discrimination based on sex under Title VII includes prohibitions on discrimination based on sexual orientation and gender identity, a decision that dramatically expanded the scope of Title VII. When it comes to religion, the same type of evolution is taking place in antidiscrimination laws. In the case of discrimination against Jews, there has always been a question as to whether antidiscrimination laws apply solely to the practice of Judaism, as a religion, or whether the laws apply to the various ways Jews exist in society, including as a religious and ethnic group seeking self-determination in its historic and modern homeland of Israel (i.e., Zionism). To an overwhelming majority of Jews, there is no way to separate the practice of Judaism from support for Zionism. In the wake of the October 7, 2023 Hamas terror attack on Israel and the subsequent mass protests across the globe, concepts of Zionism and Judaism have become a flashpoint for discrimination. As a result, the question of whether discrimination against Zionism is also discrimination on the basis of religion, national origin or ethnicity is ripe for discussion. This article examines how the principles of Bostock should be applied under federal civil rights laws (Titles VI and VII, in particular) to protect Jews who are Zionists from discrimination on the basis of their Zionist identity.

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