Immigration and Religious Identity in American Law
Adina Jocelyn Langer
Note: This and other essays in this series were originally delivered as part of the Leadership and Multifaith Program symposium on Law, Religious Identity, and Public Discourse held at Georgia Tech on September 26, 2019.
In my work as the curator of the Museum of History and Holocaust Education (MHHE) at Kennesaw State University, I promote the value of history. Knowing about history can help us make better decisions. Events like the Holocaust are not inevitable. They unfold gradually, as the result of many individual actions and inactions. In the context of today’s conversation, it is important to note that it is possible for an action to be moral but illegal, or legal but immoral. It is also important to acknowledge that people never act in a vacuum; they are constrained by their responsibilities and by their role in society.
What does the Holocaust tell us about law, justice, and religious identity? Hitler rose to power not because his platform was widely popular in Germany but because people who were distrustful of and dissatisfied with the new democratic institutions of the Weimar Republic allowed him to take power. Once he came to power through legal means, he used a combination of law, propaganda, and intimidation to consolidate his power and to take power away from others. In Nazi Germany, people’s actions were constrained by law and also by fear. This included religious leaders, many of whom ceded their moral authority.
The Nazis targeted people they identified as “dangerous to the state.” Some groups and individuals, including free-thinking journalists, political dissidents, Communists, and Jehovah’s witnesses, were targeted for their beliefs. Others were targeted for their “actions.” These included openly gay men, and people who broke an ever-increasing number of restrictive laws. Finally, there were groups targeted simply for their indelible ethnic, biological, or national identities: people with disabilities, Roma and Sinti (aka Gypsies), Poles and Slavs, and, above all, Jews.
Herbert Kohn | “My father made a family tree.” from KSU MHHE on Vimeo.
In this short video, Herbert Kohn describes his escape from Germany to the U.S. via England. Explore similar Immigrant Stories and follow Kohn’s journey from Frankfurt, Germany to Atlanta, Georgia in this digital exhibit from Kennesaw’s MHHE Georgia Journeys project.
But before the Nazis could target the Jews simply for being Jews, they had to change the legal definition of “Jewish.” They had to turn Judaism from a religion, a voluntary faith-based value system and set of cultural practices, to a race, something intrinsic and inseparable from a person’s DNA. From a legal standpoint, this process began in 1935 with the Nuremberg race laws which defined a “full-blooded” German as someone with four “Aryan” grandparents and a “full-blooded” Jew as someone with four Jewish grandparents. Everyone in between was mischlinge or mixed-blood. With the passage of the Nuremberg laws, German Jews were stripped of their citizenship rights and subject to a succession of harsh statutes designed to segregate them from society and take away their ability to marry, work, learn, worship, and travel like other Germans. The situation reached a crisis point in November 1938 with the Kristallnacht pogroms during which Jewish businesses were looted, synagogues were burned, and Jewish people were arrested and beaten in the street. When the smoke cleared, the Jewish community was fined 1 billion marks for their troubles and given an ultimatum: leave the country or risk further imprisonment or death.
Enter the inspiration for the creation of Refuge or Refusal, an exhibit about turning points in U.S. immigration law on display during this LAMP symposium. An exhibit about U.S. law may seem to have little to do with the Holocaust, but the connection will soon become clear. The relationship begins with the United States’ reputation for justice. The U.S. was seen as a haven by many European Jews due to its tradition of protection for religious minorities. Thousands of Jews had found refuge in the United States during the “golden door” era of European immigration, between the 1880s and 1920s.
Yet, Jews attempting to leave Germany on the eve of World War II were met with restrictive immigration quotas. U.S. law had a darker side when it came to ideas of “racial composition.” Even after the 13th, 14th, and 15th Amendments to the U.S. Constitution extended civil rights to former slaves and their descendants, they did not eliminate the potential for race-based restrictions in the immigration and naturalization systems, which went back to the first naturalization law of 1790.
“The ‘New Trans-Atlantic Hebrew Line’: For the exclusive use of ‘the persecuted.'” 1881. Source: Library of Congress
People advocating for immigration restrictions in the U.S. did so based on a combination of fears of immigrants’ beliefs (religious, political, and cultural) and fears of how their fundamental racial identity might negatively affect the “composition” of the U.S. polity. To some degree this was a “complexion” or color issue, but it was also based heavily on pseudo-science in the 1920s which fundamentalized European ethnicities and left “Chinese,” “Japanese,” “black,” “mulatto,” and “Indian” at the bottom of the hierarchy. The upshot was a quota system which disregarded need and left relatively small quotas for people trying to flee eastern Europe, while virtually barring people from everywhere else in the Eastern hemisphere.
Too strong a focus on race, however, might serve to obscure religion as a factor in advocacy for immigration restriction in the United States. Historically, distrust of individuals based on their religious affiliations was common when those affiliations were believed to carry implications of dual loyalty or incompatibility with representative democracy. This was true when anti-Catholic sentiment surged in the 1840s after the Irish potato famine, and when the FBI surveilled Japanese Zen Buddhists during World War II. Threads of antisemitism ran throughout debates over immigration from Eastern Europe in the 1920s and are largely responsible for the failure of the Evian Conference which preceded Kristallnacht, and the turning away of the refugee-laden German ship St. Louis after its passengers were refused landing rights in Cuba. More recently, rising Islamophobia after the Al Qaeda attacks of September 11, 2001 has put Muslim communities at risk across the United States, and has resulted in increased racism and xenophobia against people who are perceived as coming from somewhere in the Middle East.
“The only way to handle it.” 1921. Source: Library of Congress
The problem throughout the ages is fear, dehumanizing rhetoric, and the justification of policies based on that fear as somehow protecting people with a “rightful” claim to the benefits of citizenship. In the United States, where the rule of law is paramount, laws built on fear and exclusion set a dangerous precedent, especially when those laws affect rights associated with citizenship. Chief Justice Earl Warren laid out the issue in his dissenting opinion in the 1958 Perez vs. Brownell Case in which a U.S. citizen born in Texas had his citizenship revoked due to having lived in Mexico and voted in a Mexican election during World War II. Warren said, “Citizenship is man’s basic right, for it is nothing less than the right to have rights.” Ultimately, this precedent would be overturned nine years later in a case involving a naturalized U.S. citizen who voted in an Israeli election. The citizenship rules enshrined in the 14th Amendment of the U.S. Constitution would be held up as fundamental in this and future cases (so far).
The debates within the United States that led to this trend toward a more expansive understanding of the role of citizenship and the need for the protection of human rights are representative of the ways in which the Holocaust changed our notions of justice. This change began with the creation of the United Nations. In 1948, three years after its founding, the U.N. adopted the Universal Declaration of Human Rights which includes freedom of religion/conscience and freedom to seek asylum from persecution. That same year, genocide was defined as a crime against humanity and an international criminal court tried Nazi officials for war crimes. Responding to the European refugee crisis, the U.S. passed the Displaced Persons Act, and Presidents Truman and Eisenhower both advocated for more protections for refugees. Post-World War II movements for Civil Rights and Human Rights gained traction in the U.S. and around the world. The 1965 Hart-Celler Immigration Act attempted to ameliorate quotas that were seen as unjust and unfair to people from non-European countries. Fifteen years later, the 1980 Refugee Act codified how the U.S. would comply with the U.N. Refugee Protocols to allow refugees and asylum seekers entry despite individual country quotas.
Immigration and World History Timeline
The case studies provided by the Holocaust and U.S. immigration policy both exemplify the need for moral leadership to help us determine whether secular laws are just. Religious leaders can play an important role in debates over secular law through advocacy for fundamental human rights and advocacy against dehumanization. Jurisdiction remains a challenging issue when it comes to protecting people’s rights outside the structure of nation-based laws. War crimes trials attempt to bring offenders to justice, but they are limited by the willingness of nations to cooperate. Thus, advocacy remains essential within nations, states, and communities, including religious communities. The best leaders are those who challenge us to expand our notions of justice and to include more people in the possibility of a better world.
Suggestions for Further Reading
Anderson, Benedict. Imagined Communities: Reflections on the Origin and Spread of Nationalism. Revised edition. London New York: Verso, 2016.
Garland, Libby. After They Closed the Gates: Jewish Illegal Immigration to the United States, 1921-1965. University Of Chicago Press, 2014.
Hsu, Madeline Y. Dreaming of Gold, Dreaming of Home: Transnationalism and Migration Between the United States and South China, 1882-1943. Stanford: Stanford University Press, 2000.
Ngai, Mae M. Impossible Subjects: Illegal Aliens and the Making of Modern America. Princeton, New Jersey: Princeton University Press, 2014.
Rauchway, Eric. Blessed Among Nations: How the World Made America. New York: Hill and Wang, 2007.
Adina Jocelyn Langer has served as the curator of the, Museum of History and Holocaust Education at Kennesaw State University in Kennesaw, Georgia, since 2015. A 2009 graduate of the MA program in Archives and Public History at New York University, she has focused her career on interpreting traumatic historical events for diverse audiences while emphasizing the dignity and individuality of the people who experienced them. You can follower her on Twitter @Artiflection and find her on the web at www.artiflection.com.
Langer, Adina Jocelyn. “Immigration and Religious Identity in American Law.” Canopy Forum, November 11, 2019. https://canopyforum.org/2019/11/11/immigration-and-religious-identity-in-american-law-by-adina-jocelyn-langer/