Despite breathless denunciations (and more measured criticisms) to the contrary, the anti-Semitism bill sitting before Congress would not create “a new definition of anti-Semitism,” Family Research Council President Tony Perkins said on “Washington Watch” Monday. In fact, the bill contains “identical language” to an executive order issued by former President Donald Trump (R) on December 11, 2019, he added. “There was no dust-up in 2019.”
“This is already the rule,” agreed his guest David Bernstein, law professor at George Mason University’s Antonin Scalia Law School. “Whatever you’re able to do right now — whatever you’re legally able to do — you will still be able to do it if this law passes.” The point of the bill, he explained, is to “codify a definition of anti-Semitism already in use because the administrative rule applying it could be reversed at any time.”
The point of the anti-Semitism bill is to “ensure that Jews are protected from discrimination on campus” by protecting Jews “as an ethnic group, from ethnic discrimination,” under Title VI of the Civil Rights Act of 1964, Bernstein explained. For most of the law’s history, the Department of Education did not classify Jews as an ethnic group, and thus they were not protected. In 2003, the Bush administration first issued guidance classifying Jews as an ethnic group. Bernstein described this as “the uncontroversial part” of the bill.
The “controversial part,” by contrast, is the provision requiring the Department of Education to adopt the “International Holocaust Remembrance Alliance [IHRA] definition of anti-Semitism,” specifically the examples of modern anti-Semitism that accompany it, Bernstein explained. Not that the definition is controversial, since it has been used without controversy since 2019, he added. But controversy has been kindled by “people alleging crazy things like, ‘You won’t be able to read the Bible,’ [or] ‘It’s going to make the New Testament illegal.’”
The application “doesn’t ban people from preaching the gospel. It doesn’t even ban people from saying Jews killed Jesus [and] doesn’t ban people from criticizing Israel,” he said. “It’s very specifically about using things … to criticize the state of the modern state of Israel.” Bernstein offered an example, “Imagine someone says, ‘It’s no wonder that Jews are murdering Palestinians left and right. After all, they killed Christ.’ I don’t think anyone would doubt that that might very well be an anti-Semitic statement.” In other words, “to say that Jews in the Bible were responsible for the death of Christ … is not what is covered under this provision,” Perkins summarized.
The context in which the anti-Semitism bill would apply the IHRA’s definition is also restricted, Bernstein continued. “It’s only for civil actions, only for evidentiary purposes,” he said. It doesn’t even restrict anti-Semitic speech, he contended, unless the speaker also engages “in some other anti-Semitic action.”
Bernstein blamed the controversy on “certain media figures … who have decided that part of their audience is the fringe-right-wing, anti-Semitic group. … For a long time, the conservative movement was very firm about keeping these people out.”
“I’m not sure the people who are saying this [that the bill would criminalize preaching the gospel] have actually read the bill,” he lamented. “I don’t know what their motivations are, but I don’t know if I’ve ever seen so much distortion over something that’s really so inconsequential in the sense it doesn’t change what’s already the law.”
Joshua Arnold is a senior writer at The Washington Stand.
