Shaare Tefila Congregation v. Cobb

PETITIONER:Shaare Tefila Congregation
RESPONDENT:Cobb
LOCATION:Oglala Sioux Tribe

DOCKET NO.: 85-2156
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 481 US 615 (1987)
ARGUED: Feb 25, 1987
DECIDED: May 18, 1987

ADVOCATES:
Deborah T. Garren – Argued the cause for the respondents
Patricia A. Brannan – Argued the cause for the petitioners

Facts of the case

After its Maryland synagogue was painted with anti-Semitic slogans and symbols, the Shaare Tefila Congregation brought a suit charging the white defendants with racially discriminatory interference with property rights under 42 U.S.C. Section 1982. The Maryland District Court dismissed the claims, maintaining that white-on-white violence was not racially discriminatory.

Question

Did the white defendants exhibit racially motivated discrimination in violation of the federal statute?

William H. Rehnquist:

We will hear argument first this morning in Number 85-2156, Shaare Tefila Congregation versus John William Cobb.

Mr. Brannan, you may proceed when you are ready.

Patricia A. Brannan:

Mr. Chief Justice, and may it please the Court:

This case presents the issue, whether a complaint that alleges racially motivated discrimination and harassment against Jews may state a claim under Title 42 of the United States Code, Section 1982.

The complaint alleged that respondents’ desecration of the synagogue of Shaare Tefila Congregation was racially motivated and hence covered by the statute.

The complaint further alleged that the facts that supported the allegation of racial motivation were principally the character, symbols and words that respondents themselves painted on the synagogue.

The complaint alleged that they painted the words,

“Dead Jew, Death to the Jew. “

They painted swastikas, and on a door the words,

“In, Take a Shower, Jew. “

They painted the garbled German words, “Toten Kamf Verband” next to a skull and crossbones.

The “Toten Kamf Verband” with the death head units of concentration camp guards in Nazi Germany, and the skull and crossbones was their symbol.

These words and symbols invoked Nazi ideology, and it was one of the principal tenets of Nazi ideology, both in Nazi Germany in the 1930s and ’40s and among neo-Nazi groups in this country today that Jews are racially non-white and inferior to whites.

The complaint further alleged that respondents painted the words, “Ku Klux Kian”, and the burning cross, the familiar symbol of the Kian.

Kian groups, like the Nazis, hold as one of their central tenets that Jews are racially distinct from whites and inferior.

The Fourth Circuit Court of Appeals split on the issue as to whether this conduct stated a Section 1982 claim.

A majority affirmed the dismissal of the complaint, holding that because Jews are not racially distinct or non-white, this conduct does not state a 1982 claim.

But in dissent, Judge Wilkinson recognized that although Jews are not racially distinct from whites, when they suffer racially motivated deprivation of rights protected by the statute, they like any other group should be covered.

We, of course, agree that Jews are not racially distinct from whites.

We respectfully ask this Court to reverse the Fourth Circuit and to hold, consistent with its prior cases–

John Paul Stevens:

May I ask you a question about your last comment?

Do you think at the time the statute was passed that the people who voted for the statute thought that Jews were racially distinct or not?

Patricia A. Brannan:

–I believe that they did, under the common understanding of the word “race” at that time.

That issue has been briefed in greater detail, actually, in the St. Francis College case.

For our purposes, we don’t believe that that even would matter.

That what really matters, if persons who discriminate against Jews, Arabs or other minorities now, who do that because they view them as racially distinct, that that conduct should be covered.

After all–

John Paul Stevens:

Maybe it should.

But you don’t contend that at the time the statute was passed, that the authors of the statute might well have used the term “race” in a way that would have treated the Jews as a separate race?

Patricia A. Brannan:

–We believe that they did use that term at that–

John Paul Stevens:

But you don’t rely on that fact?

Patricia A. Brannan:

–We don’t believe that that really adds to the argument that we are making.

I am reminded, in answering your question, of Justice Marshall’s language in the McDonald case, that at the time of the passage of the statute in 1866, Congress probably didn’t anticipate racial discrimination against whites of the sort that this Court held in McDonald to be covered.

But Congress had an open-ended concept of what it was covering, that there would be new groups coming to this country; new kinds of discrimination undoubtedly would arise.

And it was the discrimination itself that Congress focused on, not particular groups and whether they were covered.

That is also illustrated, we believe, in the legislative history by the repeated references to Germans and Swedes and other groups as a race who really… it just isn’t thought any more that those groups are racial–

William H. Rehnquist:

Ms. Brannan, the word “discrimination”, of course, connotes treating some people differently than others, and your idea is that the statute covers any instance in which, say, a Frenchman treats a German differently than he would another Frenchman, if they are all in this country?

Patricia A. Brannan:

–No, Justice Rehnquist.

The principle for which we argue is more narrow.

That would only be covered if it is racially motivated discrimination.

William H. Rehnquist:

Well, then how does one know whether a decision by someone of French extraction to treat someone of German extraction differently than he would treat other people, is racially motivated?

Patricia A. Brannan:

We think that that is a question for the finder of fact as it would be in any–

William H. Rehnquist:

Well, what should the judge charge the jury?

Patricia A. Brannan:

–The judge should charge the jury that the standard is racial motivation, and that that can be evidenced by statements and admissions of the defendants, by any, for instance, expert opinion as we put in, in this case, that indeed this very conduct and these very symbols–

William H. Rehnquist:

And if someone of French extraction then thought that the person of German extraction was of a different race, that would be sufficient?

Patricia A. Brannan:

–Yes, it would, if it can be established… and the plaintiff, of course, has the burden of proof.

William H. Rehnquist:

But only that this person-thought that, not that it is a fact?

Patricia A. Brannan:

That’s exactly right.

And the reason–

Antonin Scalia:

But If you had discrimination of the same sort by a Frenchman against a German, just because he doesn’t like Germans, they have been engaged in too many wars and that other Frenchman acknowledges that they are not different races, then it wouldn’t be actionable?

Patricia A. Brannan:

–Unless the plaintiff could prove, of course, that that statement was false or that acknowledgment was false.

And the reason we think that that is a principled and fair distinction, in fact supported by this Court’s cases, is the Court has held that these statutes address discrimination that is racial in character.

There is something especially invidious, in the eyes of the 1866 Congress, about racial discrimination, that if the discrimination were just for some other reason, it isn’t–

Antonin Scalia:

Why isn’t it enough that he is discriminating against Germans, and Germans are a race under the statute?

Patricia A. Brannan:

–Well–

Antonin Scalia:

He is discriminating against Germans as Germans, not because he thinks Germans are a different race but because he thinks Germans are Germans, and under the statute as it was enacted at the time, it was agreed that Germans were a distinct race.

Patricia A. Brannan:

–That is–

Antonin Scalia:

Why wouldn’t that come within the statute?

Patricia A. Brannan:

–That is another way of approaching the issue that we think is very fair in light of the legislative history, and indeed, would lead to a reversal at this case and an affirmance in the St. Francis College case as well.

Antonin Scalia:

It would make a lot more sense… given two instances of discrimination against the German, you would want us to find one actionable and the other one not actionable simply because of the two people is foolish enough to think that Germans are a separate race and the other one isn’t?

Patricia A. Brannan:

The only difficulty, as we have argued in our briefs, is that at all costs we would want the courts to avoid is the issue of defining race in order to determine coverage.

We believe that was one of the key errors of the Fourth Circuit majority, that they had a notion, a correct notion that Jews are not racially distinct from white, and they let their correct idea get in the way of dealing with this discrimination on the terms of the discriminators themselves, and that certainly we wouldn’t want the lower federal courts to be analyzing, are Jews racially distinct, are Germans or Arabs or any other group racially distinct.

William H. Rehnquist:

Well, unless that’s what Congress intended to be determined in a case like this.

Patricia A. Brannan:

And we believe, Justice Rehnquist, that the legislative history demonstrates it’s not at all what they intended, and that in fact this Court’s analysis of that history in the McDonald case makes that very clear.

William H. Rehnquist:

What if I take a dislike to people with brown eyes, and I say that I’m just not going to deal with people with brown eyes the same way I’m going to deal with people with blue eyes.

Now, if I deny someone a right on that basis, is that actionable under the statute?

Patricia A. Brannan:

Well, the answer is, of course, unless it’s racially motivated in our society.

William H. Rehnquist:

Well, could that be racially motivated?

Patricia A. Brannan:

It could be if there were facts to show that historically, or in our society, and in the eyes of the discriminators, was a racial distinction, and the hypothetical–

William H. Rehnquist:

How is the judge going to charge the jury?

What should they ask themselves, to decide whether someone with blue eyes who treats differently people with brown eyes is “discriminating”?

Patricia A. Brannan:

–The charge should be whether it is conduct that we understand as racial, as based on that person and their heritage and background and what they are in unchangeable ways, unlike, for instance religion, and that that should be backed up in the evidence and the plaintiff has the burden to show that it ties in historically or culturally with an understanding that is racial.

In the hypothetical you posed, that probably would be an unlikely result, that a plaintiff could prevail in a case like that.

William H. Rehnquist:

But it has to have a historical background.

In other words, the discrimination would have to be going on for a while before it would be actionable under the statute?

Patricia A. Brannan:

Not necessarily.

If there developed now, for instance, a notion that French Canadians are racially distinct and there were Kian-like groups who were out to do the sorts of things that happened at Shaare Tefila to French-Canadians, I don’t think we would have to wait for some period of time but we would need to show that they view their conduct as racially motivated against those groups.

Sandra Day O’Connor:

Ms. Brannan, are you asking us, in effect, to equate race with national origin discrimination?

Is that what it approaches?

Patricia A. Brannan:

We are not.

We are looking to the facts of this case and saying that, given the historic and contemporary link in the eyes of people who lash out at Jews, that they are a racial group; that we really needn’t broach that question in this case at all.

But to go back up–

Antonin Scalia:

So long as they are intelligent enough to know that they are not a distinct racial group, it would be okay; they could paint the same things on the synagogue so long as they know that the Jews are not a separate race?

Patricia A. Brannan:

–In this case, Justice Scalia–

–No.

That is the position you are urging us to take, though, isn’t it?

Patricia A. Brannan:

I don’t think it turns only on admissions.

In this case, if the Respondents denied up and down that they had a racial belief about Jews, I think–

They in fact didn’t.

I’m not saying they just admit… they in fact didn’t.

They in fact know that Jews are not a separate race.

But they still set out to defame and cause injury to Jews.

Do you think that that would not be covered, so long as the individual is not doing it because he thinks Jews are a separate race?

Patricia A. Brannan:

–Well, I have some difficulty, I suppose, with the notion of, you know, “they don’t think”, because given the content of the message that they put up on the walls of Shaare Tefila, it really evokes a racist history.

Don’t change my hypothetical.

I am giving you a hypothetical in which the individual knows Jews are not a separate race and paints the same things as were painted here on the synagogue.

Now, under your theory if I understand it correctly, that would not be actionable?

Patricia A. Brannan:

Under my theory, I guess I can’t reconcile them knowing that Jews are racially distinct and still invoking the Holocaust.

Make believe, all right?

Patricia A. Brannan:

All rights.

Accept my hypothetical.

Under your theory it would not be actionable; isn’t that right?

Patricia A. Brannan:

If we could know completely what was in their minds, it would not be actionable.

But perhaps to work a variation on your hypothetical–

Well, what in the legislative history supports that very unusual approach to the statute, and perhaps unworkable approach?

Patricia A. Brannan:

–Well, we think in fact that the approach is directly in line with this Court’s cases, particularly the McDonald and General Building–

I asked about the legislative history.

Patricia A. Brannan:

–And what is supportive in the legislative history was the repeated references–

Well, there may be some support in the legislative history for treating Jews as a separate race or treating Germans as a separate race.

But I don’t see anything in the legislative history that would make it turn on the relative sophistication of the person doing the discriminating, which you are urging.

The view of the discriminator… I mean, that’s what gets you into a very peculiar approach here.

And is there anything in the legislative history to support that?

Patricia A. Brannan:

–Well, Justice O’Connor, we think it isn’t so much the sophistication as the intent of the discriminator, and that is an issue that this Court addressed in terms of the legislative history in General Building Contractors, and held that intent is the touchstone of coverage, that a plaintiff now has to show racially discriminatory intent.

But why isn’t it enough if the intent is to discriminate against a race, as race was understood when the statute was enacted?

You are not just insisting that the intent be to discriminate against a race, but you are insisting that the intent be to discriminate against a race because it is a race, not because we have been at war with Germans for 200 years, but because Germans are a separate race.

Now, why do you have to add in that qualification under the statute?

Isn’t enough that you are discriminating against a race?

Isn’t that all the statutory language would require?

Patricia A. Brannan:

Yes, but the difference, I think, between the last part of what you said and what we are arguing, Justice Scalia, is the motivation of the actor must be racially discriminatory.

That is the thing that we are emphasizing.

Why?

Where is that in the statute?

Patricia A. Brannan:

Well, basically because this Court so held in General Building Contractors and McDonald, but that has been the thing that the Court has looked to, not who the group is, who is the victim, but what the intent is as demonstrated by the acts and by statements and by the usual evidence that fact finders look at to measure intent.

Do you think McDonald would have come out differently if a person just didn’t like the color of the white race’s skin, or of the black race’s skin and was discriminating on that ground, although still discriminating against a race?

Patricia A. Brannan:

Well, in our society skin color is very wrapped up, of course, with issues of race and I am not sure that those two things are separable in a case such as McDonald.

That’s what I was wondering about.

What would you say if they painted swastikas on the synagogue on Lenox Avenue in the middle of Harlem?

There is a synagogue there.

Patricia A. Brannan:

Yes, Justice Marshall.

And there is not a white person within ten blocks.

Patricia A. Brannan:

And we believe that the result would be the same, that those congregants should be covered, as we believe Shaare Tefila would be covered.

Well, you couldn’t do it an race, could you?

Patricia A. Brannan:

Well, again swastikas on a synagogue again invoke that ideology of racial distinctness of Jews, and we think if that is part of–

But there are no Jews in that synagogue.

There are no white Jews, I would say.

Patricia A. Brannan:

–Well, we think it makes no difference whether the Jews are black or white if the racial animus is there to support the cause of action.

As in McDonald versus Jones, the Court hasn’t weighed the color of the skin or the race of the victim but has looked to the intent of the discriminator and that the result there should be the same even if the victims are black.

If these people had just vandalized the synagogue without painting anything, swastikas or anything like that, they had just trashed the place, would you be here?

Patricia A. Brannan:

It would be a much more difficult case.

You would then have to have some other evidence that they did it on a racial basis?

Patricia A. Brannan:

Exactly.

But if it turned out that they… as Justice Scalia suggested, if it turned out that as a matter of fact they knew that Jews were not a different race, they claimed that they just didn’t like Jews, you wouldn’t be here then?

Patricia A. Brannan:

Exactly, if there weren’t some evidence.

Here the character of what was painted is the strongest evidence.

And you would… in that case you wouldn’t even be here if you determined or you wouldn’t even be here, even arguably under the statute, claiming that at the time the statute was passed, that Jews were considered to be enough different to be covered by the statute?

Patricia A. Brannan:

We might, although I think we would be advocating, as are the respondents in the St. Francis College case–

You don’t want to urge in this Court, I take it, that Jews are a different race?

Patricia A. Brannan:

–No, not at all, Justice White.

We want to urge that where the discrimination against them is racial, even though–

And you don’t want to… you are not urging that Congress thought Jews were a different race at the time they passed the statute?

Patricia A. Brannan:

–There is some evidence of that, but we really don’t think that is critical one way or the other to the holding, that what Congress was after and was concerned about was racial discrimination against anyone.

Well do you think it would be error if we read the legislative history to say, Congress thought that Jews were a different race and therefore the statute covers it?

Would we be in error?

Patricia A. Brannan:

No, I don’t, although we would certainly urge the Court to make clear that of course Jews or any other group now bringing a claim would not have to prove some racial distinctness.

That was really what was suggested by the Fourth Circuit majority, that there is an extra burden beyond racial motivation on the plaintiff to show that they are non-white or racially distinct, although it is unclear, racially distinct from whom.

That, we believe, was the crux of the error and that particular aspect of that opinion, we believe should be reversed and made clear by the Court, whether or not the Court accepts the racial motivation theory that we have put forward or the respondents’ approach that is more closely tied to the meaning of race in 1866.

And could, under your theory, these respondents have been prosecuted criminally under the criminal counterpart of these statutes?

Patricia A. Brannan:

We believe that they could.

In fact, they were prosecuted under state law only under the malicious destruction of property types of statutes that don’t in any way address the racial motivation or the real… the civil rights violation that was the most hurtful part of the conduct.

It wasn’t really getting the wall messed up that is offensive to the congregation.

Ms. Brannan, you have a lot of trouble with this Screws case which says, you must have an intent to deprive somebody of a right, a specific right.

Remember that case?

Patricia A. Brannan:

Yes, I do, and we–

Well, in this you’d have it awful hard to prove that criminally, beyond a reasonable doubt.

Patricia A. Brannan:

–I think as a question of proof, there will be more, or less easy cases.

We think that the intent here is very clear, and that the right that was violated is the right in Section 1982 to hold property, one of the specifically enumerated rights.

It doesn’t say that the result… the man was killed.

Screws says it was what was in the man’s mind.

You have to prove that he intended not only to kill but to kill in order to deny him a constitutional right.

Well, that would be a lot of problem in this case.

Patricia A. Brannan:

Yes, it would certainly be a question of fact.

But we believe at the threshold a colorable prosecution could be brought.

If your interpretation is correct, do you think that it will eliminate or sweep out of the way some specific exceptions that were enacted in Title VIII, the Housing Act where Congress specifically exempted some, forms of possible discrimination?

I guess those would just be swept away by the potential for suit under this section?

Patricia A. Brannan:

Well, as in the Court’s prior cases, considering the relationship of 1981 in Title VII and 1982 in Title VIII, they are separate and independent causes of action and the Court already has held that in Title VII and Title VIII, Congress did not intend to–

Well, certainly, your interpretation would make useless the reservations expressed in Title VIII for certain types of discriminatory conduct.

Patricia A. Brannan:

–Well, our view is that Title VIII has its restrictions and its areas of coverage, and that 1982 has its, and that they stand independently.

It may well be that there are cases covered under Section 1982 that would not be covered under Title VIII.

In fact, this is such a case.

We do not have a Title VIII claim because the congregation building is not a dwelling.

Patricia A. Brannan:

So, the two, we believe, can be on parallel tracks but each have their independent areas of coverage and exemption.

Well, but it would open up for suit, if you are correct, various things that were reserved in Title VIII, for example the duplex housing when the owner lives in part of the duplex, and that sort of thing.

Patricia A. Brannan:

We think that is true now, Justice O’Connor, under 1982.

For example, if a black family is now denied housing, rental housing in a duplex, there is no reason why they cannot bring a Section 1982 case if they can prove that discrimination, you know, was against them on racial grounds.

It’s really… we’re not going any farther in that area than already the Court has established, that there are areas of coverage under Section 1982 that might be exempted.

Well, except that you would extend it to every other possible source of national origin?

Patricia A. Brannan:

Well, we view it really not as an exemption, but as reversing the Fourth Circuit’s attempt to restrict by defining groups the courts think are not racially distinct from the coverage of the statute, whereas under this Court’s cases, particularly General Building Contractors, the rule has been where there is racially discriminatory intent to breach one of the protected rights under the statute, there is coverage.

Yes, but Justice O’Connor’s point, I think, is that Title VIII has some meaning.

If you assume that what Title VIII was doing was extending to persons other than just blacks the guarantees of 1982.

But now, under your theory, Title VIII doesn’t do anything that 1982 doesn’t already do.

Patricia A. Brannan:

Well, Title VIII, as I recall, also covers religious discrimination.

It also covers, I believe, gender based discrimination which our theory certainly would not reach.

Racial motivation, we believe, will cover victims of racial motivation but in a straightforward religious discrimination case, for example, our theory would not cover plaintiffs, whereas Title VIII very well right.

So they do have, we believe, their independent areas of coverage and exemption, even under the approach we urge.

Could I just explore again what you mean by racial motivation?

Suppose a landlord doesn’t want a particular racial group, just because the landlord thinks that that racial group is sloppy, just has made the judgment that the group as a whole is sloppy.

Now, would that be the racial motivation?

Patricia A. Brannan:

Yes, Justice Scalia, we think it would be, and in fact it’s those kinds of stereotyped generalizations about racial groups that have created the disabilities that Congress was trying to break in the 1866 Act.

But the landlord has to believe that it’s… if the landlord just believed that, let’s say, all Frenchmen are sloppy, but knew that Frenchmen were not a separate racial group, that would be okay?

Patricia A. Brannan:

I don’t–

Or let’s say, all Puerto Ricans or all Italians or whatever?

So long as the landlord knows that is not a racial group, that’s perfectly okay?

Patricia A. Brannan:

–If it isn’t a racially based distinction, we think that case would not be covered.

Very strange.

Patricia A. Brannan:

Again, harking back to the legislative history a bit, what was at the heart of the Reconstruction, Congress’s concern of course in the first instance was creating situations in which the newly freed slaves could function in our society.

But they didn’t limit that protection, of course, just to blacks as the Court held in McDonald.

It was really a deep concern with racial motivation as being something distinct and particularly odious in our society that was at the heart of their concern.

It seems to me you are only getting at the ill-educated discriminator, right?

Patricia A. Brannan:

Well, perhaps, Justice Scalia, it’s a question of ignorance, not education.

I think that there are perhaps those in much more sophisticated places with a string of degrees who may be surprised to hear a congregation arguing before the Supreme Court that Jews are not a race.

Patricia A. Brannan:

We believe that the error of the Fourth Circuit simply was in not applying this Court’s precedents in McDonald and General Building Contractors, but adding on that extra burden an extra test for the plaintiffs.

One of the additional difficulties with that test is that it simply is not practicable and sensible for the district courts to be trying to figure out who is racially distinct or non-white, which are the words the Fourth Circuit used.

It is unclear, first of all, what the Court even meant by “racially distinct”.

Racially distinct from whom?

In Sullivan and Tillman, this Court held that even whites who are the victims of racial discrimination by other whites, because those white plaintiffs have advocated the rights of blacks, have a cause of action under Sections 1981 and 1982.

And we believe, again, the principle that underlies that case is if the motivation is racial, it’s racial because those white plaintiffs were advocating the rights of blacks, that once again there should be a cause of action even if the plaintiffs and defendants are of the same race, indisputably.

In terms, of course, of its language about the Jewish plaintiffs in Shaare Tefila being non-white, we think perhaps it goes without saying that it would be completely inappropriate exercise for the district courts to undertake trying to figure out who is white and non-white in some objective, anthropological or scientific test, that that simply would not be an appropriate approach for the courts to take.

For all of these reasons we respectfully ask this Court to reverse and to hold that all victims of racially motivated deprivations of the rights enumerated in the Civil Rights Acts of 1866 may state a cause of action under Sections 1981 and 1982.

William H. Rehnquist:

Thank you, Ms. Brannan.

We will hear now from you, Mrs. Garren.

Deborah T. Garren:

Mr. Chief Justice, and say it please the Court:

You have heard the petitioners argue that the desecration of a synagogue, what is a place of worship is covered by Section 1982, what everyone agrees is a race discrimination statute, because these defendants allegedly acted out of a completely erroneous and irrational belief that Jewish people are racially distinct.

I would argue that inclusion of such a religious discrimination claim within the scope of this race discrimination statute is entirely out of keeping with the purpose of the statute as originally enacted and its specific language as interpreted by this Court.

Likewise, and particularly importantly, determination of the coverage of Section 1982 wholly by reference to the illogical and erroneous misperceptions of discriminators is a far cry from the purpose and the language of Section 1982 as it has been interpreted by this Court.

Sandra Day O’Connor:

Ms. Garren, there is some evidence in the legislative history, of course, that Congress had in mind treating race to cover such things as Gypsies and Chinese and Germans and so forth, is there not?

Deborah T. Garren:

There are some general references by some of the legislators and the–

Sandra Day O’Connor:

President Johnson vetoed the statute because he thought it was unwise to sweep in Chinese and Gypsies, didn’t he?

Deborah T. Garren:

–Yes, ma’am.

Sandra Day O’Connor:

So, there is some legislative history to support the approach that Congress, at least, in enacting Section 1982, may have intended to cover discrimination on the basis of a different version of what constitutes race than we would have today?

Deborah T. Garren:

I think there is no evidence in the legislative history that Congress intended to define the coverage of the statute wholly by reference to intent.

In other words, there is no evidence in the legislative history that the coverage of the statute is determined by whether or not a defendant arguably acted out of an erroneous and illogical racial perception.

Sandra Day O’Connor:

That may be true, but how about the argument that apparently is going to be made in the companion case, rather than here, that indeed the statute does cover discrimination against Jews because they are Jews?

Deborah T. Garren:

I would say, Justice O’Connor, that in this case the petitioners have always very carefully not argued that Jewish people have any sort of racial identity or even are commonly identified by society as racially distinct.

They haven’t made that argument in this case.

There may have been some general references in the legislative history to Jewish people as members of a different race.

I think it would be inappropriate to look to an individual legislator’s comment regarding that as determinative of the coverage of the statute.

There is certainly no indication that the majority–

Sandra Day O’Connor:

Well, it would be appropriate, though, to look to the legislative history to determine what it is that Congress had in mind in passing this statute?

Deborah T. Garren:

–Yes, ma’am, and that is what you all have done in determining that the statute is limited to rights which are racial in character and addresses an effort to achieve racial equality, with reference to people who are members of specific groups, I think.

And whether or not there was a general recognition in society at the time of the 39th Congress that Jews are racially distinct, it is something that has never been argued by petitioners in this case, and I think something that is not evidenced in the legislative history either.

Deborah T. Garren:

And will be difficult to discern, if one attempted to go back and develop racial definitions at that time.

I would argue that a more appropriate approach would be to try to bring the statute into the 20th Century, and at most, in an effort to define what groups are covered, to look at whether a group… an individual as a member of a group that is commonly identified as non-white or is commonly identified as white, that is reflective, I think, of the specific language of the statute and also–

Sandra Day O’Connor:

This Court has brought whites within the protection of the Act in McDonald.

Deborah T. Garren:

–Yes, ma’am.

I understand that.

Sandra Day O’Connor:

It is unlawful to discriminate against white people.

So, how can you now exclude Jews?

Deborah T. Garren:

Jewish people would have a cause of action based on discrimination because they are white, if that was their contention, but that is not their contention in this case.

They also do not contend that they are racially distinct from whites in any way.

So, I would argue that they do not fall within a group that is protected by the statute.

There is no evidence that they fall within such a group.

Lewis F. Powell, Jr.:

Mrs. Garren, the problem we have in the United States… when I say a problem, it’s perhaps a great asset of our country… is that we have so many different races that over a period of many years that there have been a great many intermarriages.

We have a heterogeneous society.

How would your theory fit, for example, if a white had married an Asian and their progeny, children, grandchildren, would… would they be a member of the white race or an Oriental race?

Deborah T. Garren:

I understand.

Lewis F. Powell, Jr.:

You can cite any number of examples like that.

We see them every day.

We have friends like that.

What do we do about that?

Deborah T. Garren:

Your Honor, I am not attempting to suggest that the Court define scientific categories of race, as has been suggested by the petitioners.

I think what you would do with those sorts of cases is, first of all, there are certain groups in our society that are commonly identified as non-white.

Those groups would be entitled to protection, and if an individual is subjected to discrimination because he is perceived to be a member of such a group, then he would be covered.

Lewis F. Powell, Jr.:

That is matter of perception?

Deborah T. Garren:

It is a perception only of an individual’s membership in a group that is commonly identified as non-white.

And that is something that the jury could determine, in other words, whether or not that individual was acted against because he was non-white.

Lewis F. Powell, Jr.:

Does that bring you close to the position of your opposition here today?

Deborah T. Garren:

No, I think it does not, because the petitioner argues that the perceptions of the discriminator, without reference to groups, are determinative.

In other words, under the petitioner’s argument, to take an extreme example, if a group of anti-gay people decided that homosexuals were racially different than others and discriminated against them on that basis, I think carrying the petitioners’ argument to its logical conclusion, that claim would be covered by the statute.

The same might be true for handicapped individuals.

Suppose some deviant organization in our society decided that handicapped people were different racially and acted against them on that basis, I believe that claim also would be covered under the petitioners’ theory for coverage of this statute.

Deborah T. Garren:

So, it is something different.

It’s an effort to bring the statute into the 20th Century and to recognize racial groups in a way with reference to society’s perceptions.

Thurgood Marshall:

Where do you want to go to find this, it read it, if you are part Scandinavian, part Indian, part South African, part Japanese?

What are you?

What book do you find–

Deborah T. Garren:

Again, Your Honor, I am not saying that anyone has to make that determination.

I am saying that there only has to be a decision by a jury whether you are discriminated against because you are identified as non-white.

Thurgood Marshall:

–White or non-white?

Deborah T. Garren:

Pardon me.

Thurgood Marshall:

You said you have to find out whether you are white or non-white?

Deborah T. Garren:

No, sir, I did not say that.

Thurgood Marshall:

What did you say?

Deborah T. Garren:

I said that an individual could obtain the coverage of the statute if he was discriminated against because he is identified as non-white, or as a member of a group that is commonly identified as non-white.

Thurgood Marshall:

How did he become identified as a non-white person?

Deborah T. Garren:

Well, I think one obvious way in which he would be identified as a non-white person would be by reference to immutable physical characteristics such as skin color, which we traditionally understand–

Thurgood Marshall:

I would like to have seen you identify my father.

He was white with blond hair and blue eyes.

Deborah T. Garren:

–In that case, sir, I don’t think he would have a cause of action for race discrimination.

Thurgood Marshall:

Oh, but he did.

He was a Negro.

I am trying to find where you… what do you do with Sammy Davis?

[Laughter]

Deborah T. Garren:

Sammy Davis might certainly have a cause of action for race discrimination.

He would not have a cause of action based on his religion.

Thurgood Marshall:

The people that committed this act knew exactly what they were doing and they knew exactly who they were aiming at, didn’t they?

Deborah T. Garren:

Your Honor, I understand that this was an egregious wrong.

Thurgood Marshall:

And should be punished.

Deborah T. Garren:

It’s one that cries out for a remedy.

That is correct.

And there was a remedy here available to these petitioners.

Thurgood Marshall:

What?

Deborah T. Garren:

Mr. Rehmer was convicted of malicious destruction of property and was sentenced to three years, the maximum sentence for that offense.

Criminal restitution was available to the petitioners under Maryland law.

In addition, they had many common-law actions that they could have brought in the state courts.

Instead, they asserted them as pendent claims in the federal court, and never really, seriously wanted to pursue those state claims because they wanted to send a message to these individuals under federal civil rights law.

My point simply is that you can only send that message if Congress has accorded federal jurisdiction to do it, and that there is no indication that Congress intended the statute’s coverage to be determined by reference to individual discriminators’ illogical and irrational perceptions of race.

There has to be something more.

Harry A. Blackmun:

Ms. Garren, there is such a thing as an Ethiopian Jew, isn’t there?

Deborah T. Garren:

Yes, sir.

Harry A. Blackmun:

Suppose this synagogue had been one for Ethiopian Jews?

Deborah T. Garren:

That might be a different case, Your Honor.

I can imagine a circumstance where there could be allegations that the synagogue was defaced because its members were predominantly black, in which case clearly they would be able to assert a claim under Section 1982.

Harry A. Blackmun:

Black, not Jewish, then?

Deborah T. Garren:

That’s correct.

That’s correct, because they have agreed that Jewish people are not racially distinct.

Thurgood Marshall:

Well, if they are black and Jewish?

Deborah T. Garren:

I think they have a cause of action because they are black.

Thurgood Marshall:

But not because they are Jewish?

Deborah T. Garren:

As indicated–

Thurgood Marshall:

If they painted swastikas they wouldn’t have a cause of action because they are Jewish?

Deborah T. Garren:

–That’s correct, Your Honor.

Thurgood Marshall:

You have to take that position.

Deborah T. Garren:

In order to take that position, you would have to.

Yes, sir, I do.

[Laughter]

You would have to define the scope of the coverage of this statute, something clearly that Congress and now the courts must do, by reference to those deviant organizations’ decisions about Jewish racial identity.

The petitioners herein do not claim a Jewish racial identity, and have never claimed a Jewish racial identity, nor did they contend that they are commonly identified as racial or non-white in any sense.

It’s simply a matter of what the statute was intended to address.

It was not, I would argue, a statute to root out all forms of invidious discrimination or bigotry in our society.

This Court has held that it does not address sex discrimination, religious discrimination, national origin discriminations standing alone, and all of those categories would be pulled in, arguably, under the petitioners’ theory.

Harry A. Blackmun:

Are you taking the position, however, that the statute is applicable only to blacks?

Deborah T. Garren:

No, sir, I am not.

Harry A. Blackmun:

So, if it were the yellow… they were Chinese you would say the statute is applicable?

Deborah T. Garren:

That is correct.

That group would be–

Harry A. Blackmun:

And yet, when the statute was enacted, the concern was with the freed men, was it not?

Deborah T. Garren:

–Well, if one looks to the actual concern of the legislators in passing this statute, I think one would have to realize that it was passed in an effort to protect and extend the rights of the newly freed slaves.

And this Court has indicated, therefore, that blacks are protected, and has subsequently indicated that whites as well are protected.

The additional step that you must take, not in my case, I would argue, because in this case Jewish petitioners have indicated that they do not have a racial identity but in the case that follows mine, there is a need to make an effort to define race.

I would argue that the petitioners just throw that out the window and say, we don’t need to define it; we don’t need to determine what groups are protected by this statute; we’ll determine the statute’s coverage by reference to each individual’s deviant ideas, without any reference to protected groups in our society.

John Paul Stevens:

May I ask, Ms. Garren, over the… years ago, and of course it’s still prevalent in some areas, there was prejudice against Jews.

That was known in our society.

There was a lot of anti-Semitism.

How would you characterize that prejudice?

Deborah T. Garren:

Your Honor, I would–

John Paul Stevens:

You wouldn’t call it racial prejudice?

Deborah T. Garren:

–Prejudice that is based on their religion.

John Paul Stevens:

Do you think it was based entirely on their religion?

Deborah T. Garren:

That is the characteristic that defines them.

There is no racial characteristic that in fact defines people of the Jewish faith.

It is a religion.

John Paul Stevens:

Do you think that would be the proper characterization in Germany when it was so virulent?

Deborah T. Garren:

No, sir, but again that was the deviant perception of a couple of organizations in the society that had run rampant.

It wasn’t a common perception in the society.

They weren’t commonly identified.

John Paul Stevens:

Do you think the origin of the prejudice in this country was entirely religious?

Deborah T. Garren:

Of the prejudice against Jewish people?

John Paul Stevens:

Yes.

Deborah T. Garren:

I think I am not qualified to comment on that, but I have every reason to believe that religion in part motivated that prejudice because that is what in fact defines the group.

Antonin Scalia:

It didn’t extend to Jews who were atheists, nonbelievers?

Antonin Scalia:

Do you really think that was the case?

Deborah T. Garren:

I’m not sure I understand your question, Justice Scalia.

Antonin Scalia:

I mean, do you think that the prejudice that existed against Jews in this country was only against believing Jews, and so long as the Jew said, I really no longer believe in the religious tenets of Judaism, the prejudice no longer existed and that person would have been able to get into all sort of country clubs and what not?

Deborah T. Garren:

No, sir, but I do think that the discriminators identify the group by their religious beliefs.

They may not know in each individual instance whether that Jewish person follows his faith or not.

Antonin Scalia:

Why… you want us to use modern concepts of taxonomy in order to apply this statute?

Deborah T. Garren:

No, I don’t think I do, Your Honor.

Antonin Scalia:

Why?

Deborah T. Garren:

I don’t think I do.

I am not suggesting that you attempt to define racial categories in a taxonomical fashion, or any kind of scientific way, because I do think there are incredible difficulties with doing that.

I am saying that–

Antonin Scalia:

Modern perceptions is what you want us to use?

Deborah T. Garren:

–Common identification of a group as non-white in our society, and that’s an approach that the lower courts have taken without fail in attempting to grapple with these cases.

And none of those lower courts have included Jewish people within the rubric of–

Antonin Scalia:

Why just non-white?

I mean, wasn’t non-white… do you contest that non-white was used in the statute to mean non-Anglo-Saxon?

I mean, isn’t there a lot in the legislative history that would suggest that Germans would have been considered non-white for purposes of this statute?

Deborah T. Garren:

–There may be statements by individual legislators with reference to a German race.

Now, whether that individual legislator considered Germans to be non-white, I don’t know.

I have no reason to think that the Legislature intended to address the rights of Germans when it passed the race discrimination statute.

Antonin Scalia:

Wasn’t there a lot in the legislative history that showed that the statute was a reaction, not just to slavery but also to the know-nothingism that had grown up in this country, and that it was intended to protect Irish and Germans in particular?

Deborah T. Garren:

The respondents in the case that follows us have discussed some of those references.

I do not think there is a lot in the legislative history to that effect, nor do I think that that would represent the majority opinion of the legislators.

I think the primary emphasis was on protecting the rights of newly freed slaves and blacks in the South when that statute was passed.

It was a Reconstruction era statute.

And the courts have now extended it… you all have now extended it to encompass whites.

The question is, how one defines additional categories that it would cover, and I think it is with reference to those two categories that one defines the definition.

Thurgood Marshall:

Ms. Garren, do you want us to amend McDonald and say, when we said “white people” we didn’t mean Jews?

Deborah T. Garren:

No, sir.

I think, again, that Jewish people have a cause of action based on their whiteness.

Deborah T. Garren:

If they are discriminated against because they are white they can sue.

If a Jewish person is discriminated against because he is black, he can sue.

Jewish people don’t have a racial identity, as the petitioners have recognized, as the lower courts have recognized, as we recognize.

They have a cause of action if–

Thurgood Marshall:

Just because certain Jews are white in complexion doesn’t take away the rights of them as Jews.

Deborah T. Garren:

–Those are rights against religious discrimination.

There’s no–

Thurgood Marshall:

Well, isn’t it religious–

Deborah T. Garren:

–[inaudible] Jewish people are racially distinct.

Thurgood Marshall:

–Well, this is not religious discrimination, then.

Deborah T. Garren:

I would say this is religious discrimination, and is not encompassed within this race discrimination statute.

Thurgood Marshall:

That’s the only thing the swastika means.

Deborah T. Garren:

A synagogue was desecrated.

Thurgood Marshall:

“Death to the Jews”.

That’s what the swastika means.

Deborah T. Garren:

I appreciate what Nazis believed and I also think that that is not a belief that is common to society.

Thurgood Marshall:

I didn’t say Nazis.

I said anybody that uses the swastika means, “Death to the Jews”.

German, American, or whoever he is, you don’t use the swastika.

Deborah T. Garren:

Well, I think even the petitioners in this case would agree that a claim would not be covered if the swastika wasn’t used to indicate that Jews are racially inferior.

That’s what results from their standard.

Thurgood Marshall:

It means that you should die.

Deborah T. Garren:

Pardon?

Thurgood Marshall:

It means that you should die.

Deborah T. Garren:

These are horrible views.

The question is whether or not we should determine that–

Thurgood Marshall:

The word is Holocaust.

That’s what the swastika means.

Deborah T. Garren:

–I understand that Jewish people have been subjected to historical discrimination, that it’s an awful circumstance.

But whereas here these petitioners were not without a remedy to make them whole, there isn’t any need to extend a federal statute to cover any situation where a defendant acted out of a misperception.

Thurgood Marshall:

How could they protest the swastika being placed on their building?

Deborah T. Garren:

Well, I think first of all that they could have pursued these fellows in state courts.

Thurgood Marshall:

Well, if they say that, if you just painted a stroke you’re desecrating the building.

Deborah T. Garren:

That’s true, Your Honor.

Thurgood Marshall:

Well, this was more than that.

This was a swastika.

Deborah T. Garren:

I understand that, Your Honor, and I think that the state courts likewise would have addressed that circumstance.

Thurgood Marshall:

Well, what statute does a state have saying you shall not use swastikas?

Deborah T. Garren:

The state doesn’t have such a statute, Your Honor.

However, I think the egregious nature of the conduct in this case would have been addressed by reference to punitive damages, for instance, in common-law actions; by reference to criminal restitution, by reference to sentencing.

And I think it was.

With respect to criminal sentencing, at least with respect to the individual whom I represent, he received the maximum sentence and that is an uncommon thing for malicious destruction of property in the State of Maryland.

That reflects an effort by the State to address the seriousness of the act.

Your Honor, I don’t know the circumstances surrounding the others.

It’s not part of the record and I have no way of knowing whether there’s even sufficient proof to tie them in with this incident.

Antonin Scalia:

Ms. Garren, you rely on the fact that it was a synagogue to show that it was racial… religious rather than racial.

But actually, they just went across the street to the synagogue after they had initially spray painted a Drug Fair, which is not notably religious.

[Laughter]

Deborah T. Garren:

That’s correct.

Antonin Scalia:

And they sprayed the Drug Fair with the words, “White Power” and “Aryan Brotherhood”.

And then after that they happened to see a synagogue and they go over and do what they did to the synagogue.

Deborah T. Garren:

That’s correct.

Antonin Scalia:

That doesn’t strike me as predominantly religious, the whole episode.

Deborah T. Garren:

No one has denied, at least for purposes of this appeal, that these defendants acted out of a belief that Jews are racially inferior and that the symbols they painted suggested that.

Antonin Scalia:

Well, then I don’t understand why the… why you raise the fact that it was a synagogue and saying that that proves something about the case.

I don’t see that it does.

Deborah T. Garren:

What happens when… if the Court applies this misperception standard, to use a shortened term, then in essence all religious discrimination claims, national origin discrimination claims, even some sex discrimination claims might come within this race discrimination statute.

That is the point I am trying to make when I say, this is really religious discrimination and it’s an effort to use a standard that will result in an unmanageable approach to this statute, I think, in the lower courts and one that is not consonant with the purpose of the statute as originally enacted, and with its language.

The problem is with the standard that the petitioners urge and the results that could accrue if that standard is applied, and I don’t think in this case… it really isn’t necessary that you engage in this racial definition that we have been hassling with because the petitioners indicate that they are not racially distinct, and Jewish people are not racially distinct.

Recognizing that, they have attempted to argue that the perceptions of the individual defendants, erroneous and irrational perceptions are what determine the coverage of a federal civil rights statute.

Deborah T. Garren:

That just can’t be right.

There is no evidence that that is what determines the coverage of this statute in the legislative history.

Antonin Scalia:

What if I just disagree with them as to whether they are racially distinct within the meaning that the framers of the statute had, framers who thought the Gypsies were a race, framers who thought the Germans were a race, who meant by “race” a stock?

Deborah T. Garren:

I understand.

It would be my position that the petitioners have essentially stipulated that away here.

They have never contended that Jews are racially distinct or commonly identified as such, nor do they want that characterization.

Antonin Scalia:

Do you think it wouldn’t be within our power, given the status of the case, to decide it on that basis?

Deborah T. Garren:

Clearly it would be within your power.

I think that it would be–

Antonin Scalia:

Well, I mean–

[Laughter]

Deborah T. Garren:

–Inappropriate.

I think that it would be an inappropriate interpretation of the statute.

It would result in you having to reach back to the 1860’s and determine what groups society then regarded as racially distinct, and I don’t think that is a practical approach to interpreting the statute.

A more appropriate approach, I think, is to look to our society now and determine what groups are commonly identified as non-white, with reference to what we all recognize as racial characteristics.

Antonin Scalia:

Why not non-white?

What groups are identified as races?

What if we concluded that the theory of these people was scientifically foolish but not necessarily socially foolish?

There are a lot of people who might use the term “Jewish” to refer to what they think is a racial group, a stock.

Deborah T. Garren:

I think that the petitioners would disagree that there is any kind of common perception.

I understand, Your Honor–

Antonin Scalia:

Has that been conceded away too, that there’s no common perception?

I don’t recall any… I do recall their forcefully arguing that they are not scientifically… Jews are not scientifically a race, but I don’t recall their arguing that there is no general social perception that to be a Jew is only a religious thing.

Deborah T. Garren:

–I think that they have never indicated that there is a common perception in our society today that Jews are racially distinct either.

John Paul Stevens:

May I ask, is it critical to your case that there be some well-defined categories of races?

I imagine at one time, perhaps scientists might have thought there were five or six races, or ten or twenty.

Now, they seem to say there are three, is it, three races.

What if 20 years from now they really study this thing and determine there is only one race, that really, the differences among the races are not scientifically significant?

Deborah T. Garren:

Yes, sir.

John Paul Stevens:

Then, I suppose the statute would just have… no longer have any significance.

Deborah T. Garren:

That is why I would take the position that it isn’t appropriate to define races by reference to any kind of scientific terminology.

In fact, an appropriate approach is–

John Paul Stevens:

Well, how do you define race, then?

If you don’t do it by reference to scientific standards, what are the standards for defining whether two people are in different races or not?

Deborah T. Garren:

–The approach that, in fact, anthropologists take in many instances is by reference to culture and by reference to common perceptions in society.

John Paul Stevens:

Well, if you look at culture, I suppose a pretty strong argument could be made that the Jewish have a very special culture of their own.

Deborah T. Garren:

I do not believe a strong argument could be made that the Jewish people are commonly identified as racially different.

That’s what I am referring to when I say that cultural–

John Paul Stevens:

What I am trying to get at is, how does one decide whether two people are in the same or different races?

Deborah T. Garren:

–One evaluates whether those individuals… you look at the individual, first of all, and you evaluate whether that individual is identified as white or is identified as non-white in our society, in some sense.

John Paul Stevens:

So, now we’ve got two races, white and non-white?

We’re down to two, is that it?

Deborah T. Garren:

There are various groups that would fall in the non-white category.

This isn’t an effort to get at defining what race means.

Sandra Day O’Connor:

In your view, would Hispanics… how about Hispanics and Arabs.

Would they fit in your category?

Deborah T. Garren:

I think it’s quite conceivable that Hispanics would be a group that is commonly identified as non-white in our society.

Several of the lower circuit courts have held that and have approached the statute in precisely the way that I am suggesting that you approach it.

Sandra Day O’Connor:

And how about Moslems or Arabs?

Deborah T. Garren:

“Moslems” is a religious term, I believe.

Again, it would require the courts to evaluate whether there is a common identification of that group as racially distinct, or non-white in our society.

For my individual reaction–

Sandra Day O’Connor:

Yes.

Deborah T. Garren:

–I think that those groups would be included within the categories that are protected because in many instances individuals that are in those groups have dark skin, for example.

And there can be no doubt that if an individual is discriminated against because he is black and has dark skin, or a large number of members of that group are black and have dark skin, they would have a cause of action under this statute.

In conclusion, I would like to say that where, as here, there are adequate state remedies available to the petitioners, it is not necessary to stretch Section 1982 to cover every defendant’s… every defendant who is motivated by an irrational and erroneous racial perception, and therefore I would ask the lower courts to uphold… this Court to uphold the lower courts’ dismissal of this claim for the desecration of a synagogue under Section 1982.

If there are no further questions, thank you.

William H. Rehnquist:

Thank you, Ms. Garren.

Ms. Brannan, you have one minute remaining.

Patricia A. Brannan:

May it please the Court, if I could just briefly address the issue that arose during Mrs. Garren’s argument about commonness of the perception of Jews and whether this is a deviant belief, first of all, as Judge Wilkinson pointed out in dissent below, there was no record on the commonness of the belief because we were cut off on a Motion to Dismiss in which the district court didn’t even consider the extra pleading material that we put in the record.

Patricia A. Brannan:

But secondly, that I think that some Gallup poll or test of the prevalence of the view really doesn’t solve the problem.

The facts of this case show that this kind of conduct occurs.

It is not unique to Shaare Tefila, and where it occurs, regardless of the prevalence or whether we characterize it as deviant, which I hope we all would, that the harm is the same.

It is a harm based on racially motivated conduct and it should be redressed under Section 1982.

William H. Rehnquist:

Thank you, Ms. Brannan.

The case is submitted.