Because I am a lawyer and law professor (albeit not a British one), my natural instinct in these circumstances is to appeal to the law for protection. Anti-Semitic harassment, intimidation, violence, and discrimination are illegal, and a primary purpose of the courts is to provide a shield for vulnerable minorities. Unfortunately, when it comes to Jewish litigants coming to the English courts with allegations of discrimination, doctrine, precedent, and case law all fall away at the hands of one simple rule: Jews lose. They lose consistently, they lose badly, and they will often be humiliated in the process. In her magnificent 2011 book An Unfortunate Coincidence: Jews, Jewishness, and English Law, English law professor Didi Herman concludes that—since the passage of the Race Relations Act of 1976—a Jew has never won a reported discrimination case against a non-Jewish defendant.
British courts seem to bend over backward to avoid finding wrongdoing, even in the most obvious cases. To take one particularly egregious example, one case involved a job applicant who was told by the hiring agency that the company in question simply would not hire Jews. It then asked the candidate what his religion was; instead of answering, the applicant (who was indeed Jewish) stormed out. The court concluded that no discrimination occurred because the plaintiff voluntarily terminated the interview without revealing his Jewish identity.
Indeed, the only time that a Jewish claimant has succeeded in a discrimination case was in a suit brought against a Jewish day school whose admissions policy used the traditional matrilineal descent test to define who was Jewish.
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But there is another element latent in the Fraser decision and the broader legal history Herman develops. Even as it consistently rules against Jews in particular cases, the English judiciary perceives itself as generally protective of the Jewish community. Indeed, Jews are if anything seen as a model in this respect—the quintessential example of a minority group that lies under the protective umbrella of the liberal and tolerant state. When debating whether to include additional groups under the ambit of anti-discrimination laws, English politicians cited Jews as an example—others should receive what the Jews already have.
This might seem to be little more than an innocuous fiction. It isn’t. Viewing Jews as the paradigmatic protected group, courts that in fact consistently deny Jews protection at the level of particular cases see themselves as breaking from the script, rather than repeating a continuous and damaging pattern. Because Jews are already a success story, the essential question of anti-Semitism discourse is not how to prevent anti-Semitism—it’s how to give other groups the bounty Jews enjoy while simultaneously ensuring that Jews don’t exploit their supposedly privileged position.
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