The Anti-Zionism Exception
Civil rights law has an anti-Zionism problem. In cases alleging discrimination, courts typically allow civil rights plaintiffs to use a contextual test—assessing what the U.S. Supreme Court has called the “totality of the relevant facts”—to prove that discrimination in fact occurred. And when key facts are disputed, courts rely on juries to resolve them. Juries are quintessential finders of fact, and discrimination is a quintessential fact question.The Weaponization of the Word “Ethnostate” Against Israel
But now, for Jews and Israelis, there is an emerging exception to the customary contextual test. Under this exception, behaviors styled as “anti-Zionism”—opposition to Israel’s continued existence—are deemed inherently not discriminatory. Although this anti-Zionism exception started with progressive activists, it has recently jumped to the pages of a published decision by a federal appeals court, which seemed to imply that anti-Zionism, once draped over someone’s speech, generally disproves allegations of discrimination.
This anti-Zionism exception is wrong. It obscures that, in context, anti-Zionism can involve discrimination based on both national origin and race. If it stands, the civil rights of Jews and Israelis will be profoundly unequal to those of other groups that experience discrimination. And, for those who discriminate against Jews and Israelis, anti-Zionist arguments and rhetoric will function as a sort of “get out of jail free” card, enabling them to skirt legal accountability.
As a civil rights lawyer, I have had a front-row seat to the emerging anti-Zionism exception in civil rights law. For years, I’ve stood shoulder to shoulder with other advocates to oppose discrimination of one kind or another, from racially disparate policing to President Donald Trump’s anti-Muslim travel ban. Sometimes we win. Sometimes we lose. But through it all, there has been one constant: a broad, contextual approach to diagnosing discrimination. In no area of civil rights law is there a magic word that defendants can utter to automatically defeat the charge of discrimination.
Instead of following the typical path in discrimination cases, the court seemed to do something different just for anti-Zionism and just for Jews.
That’s because discrimination can be subtle, especially in an age when being seen as a bigot is often socially undesirable and legally risky. As a result, even the most serious cases of discrimination often manifest through tacit double standards rather than explicit bigotry. Consider a police officer who allegedly deems it suspicious when a Black man, but not a white man, puts his hands in his pockets. Or an employer who, as one court put it, deems a man “assertive” but a woman “pushy.” Normally, a jury or other fact finder would be asked to decide whether, in context, these situations reflect discriminatory double standards or instead something more benign.
So it should be with anti-Zionism.
For starters, when deployed as a reason to target “Zionists,” such as by excluding them from school buildings, anti-Zionism is at least arguably, as Harvard Law Professor Stephen Sachs has explained, “a form of national-origin discrimination.” The reason is simple: Discriminating based on national origin includes insisting that people disavow a specific nation, especially their own nation of origin. Just imagine how easily laws prohibiting national-origin discrimination could be defeated if courts were to indulge wordplay such as “Oh, I’m not refusing to hire Italians and Haitians; I’m refusing to hire Italianists and Hatianists.”
Yet activists have resisted that logic for people they deem “Zionists.” And it’s easy to see why.
Particularly since the Hamas massacre of Oct. 7, 2023, anti-Zionism has become a pillar of progressive movements. Sometimes it is bare opposition to Israel’s existence. But sometimes it is more extreme. Indeed, I have witnessed people who consider themselves civil rights supporters—people I know—express support for Hamas. But unlike their right-wing counterparts, who openly revel in Jew hatred, progressives want to believe that they oppose explicit discriminatory postures. Instead, they insist that there is something unique about “anti-Zionism,” which they view as a response to a “Zionist” political ideology, that exempts their statements and actions from standard antidiscrimination analyses.
Israel is, by its own description, an ethnostate, and saying otherwise would be a “ludicrous lie.” At least, that’s according to Tucker Carlson in a recent conversation with white nationalist Peter Brimelow.Seth Mandel: The American Jewish Novel After October 7
Because Jewish identity is matrilineal, meaning a person is considered Jewish if their mother is Jewish, Brimelow and Carlson argue that the Jewish religion is racially based and therefore a “racial component” is inherent in the State of Israel. Being that the state was founded by atheists who “identified as Jewish racially,” Carlson suggests that Israel can only be described as such.
However, Israel, by its own description, is not an ethnostate in the way that Carlson and his guest describe. It is not a ludicrous lie to say this, but rather a simple understanding of the state’s laws and what an ethnostate actually is. This term, nevertheless, has become increasingly popular amongst anti-Israel influencers and journalists to negatively single out the only Jewish state for being just that – a Jewish state.
An ethnostate, at its basic understanding, is a state dominated by a certain ethnic group. But anti-Israel influencers have taken this term to mean something drastically different when applied to Israel, because, being a Jewish-majority state, would naturally make Israel an ethnostate in the same way that other ethnic or cultural majority states, such as Japan or Greece, would also fall under this category.
But when applied to Israel specifically, the entire understanding of the term changes to be one of racial discrimination based on fundamental misinterpretations of Israeli and Jewish laws.
Israel’s establishment as a Jewish state grants every Jew in the world the right to live in Israel, under the Law of Return. Under this law, anyone with one Jewish grandparent is eligible to become a citizen of the state. This is not a racial hierarchy as Carlson and Brimelow allude to, but rather a policy rooted in peoplehood, history, and refuge. The Law of Return exists because Jews are a nation with a shared identity that predates modern racial categories and has survived thousands of years, despite much of that time being in exile from the land of Israel.
Crucially, Israeli citizenship is not limited to the Jewish people. Arab Israelis account for 21% of the total population and hold the same rights as Jewish Israelis, including holding positions of government and law.
Yet this has not stopped journalists such as Briahna Joy Gray from incorrectly and continuously repeating that as an ethnostate, Israel denies Arabs equal rights.
One of the more interesting questions about Jewish culture after October 7 is: What will the future of American Jewish fiction look like? It will be particularly interesting to see how Israel is portrayed in the imaginations of Jewish writers of the Diaspora.
Conveniently, two recent books, both just named finalists at next month’s National Jewish Book Awards, can shed some light on the topic. The best way to describe Israel in American fiction before October 7 is by conjuring the film trope of the Manic Pixie Dream Girl. Coined by Nathan Rabin in 2007, the term refers to the female character who “exists solely… to teach broodingly soulful young men to embrace life and its infinite mysteries and adventures.”
American Jewish novelists have just gone through a period in which Israel appears as the national version of this archetype: Call it the Manic Pixie Dream Country. In the books, American Jews are assimilated and spiritually adrift, while their Israeli counterparts are tan and fearless. The Americans are outwardly dismissive of the Israeli machismo but inwardly captivated by it. The Diaspora Jew and the New Sabra look at each other the way one imagines the Flintstones and the Jetsons might, as if their co-presence represents some kind of tear in the fabric of the universe. And if the American characters end up in Israel, it is at the end of a redemption arc, a moment of salvation and fulfillment.
In the most extreme versions, the plot involves Israel’s literal destruction, as if a non-Israeli Jewish future can only be imagined if there is no Israel, so strong is the Jewish state’s gravitational pull. As the novelist David Bezmozgis once said: “The Jewish future is to be found in Israel. The Jewish past in Europe. Where in this equation is North America?”
The apotheosis of this genre is, unfortunately, Jonathan Safran Foer’s 2016 novel Here I Am, an absolute chore of a book. In it, an earthquake hits the Middle East, devastates Israel and leads to a mass invasion of it by regional powers. Even with Israel on the edge of the abyss, the U.S.-based Jewish family remains unable to find its own identity. (Like many of the books in this genre, it owes something of a debt to Philip Roth’s The Counterlife.)
A much better version of the disaster storyline plays out in 2024’s Next Stop, by Benjamin Resnick, in which a supernatural phenomenon that makes people disappear also makes Israel disappear. The Jews are blamed for the anomaly and in the U.S. they are herded into ghettos.
































