German Courts Decide Who Is Jewish: On the Agreements between the German State and Jewish Groups, and the Resulting Litigation

Abstract

On January 27, 2003, amid much publicity, a path-breaking agreement was signed between the Federal Republic of Germany and the Central Council of Jews in Germany. The historical background to, and the historic nature of, such an agreement needs no explanation. This agreement is worthy of scholarly review not only because of the manner in which the agreement came about, its provisions, and its place in the German legal system, but also because of critical assumptions it makes about what it means to be Jewish from the perspective of a modern secular nation-state attempting to respond to the aftermath of the Holocaust. Because it sheds light on the difficulty of framing Jewish identity for purposes of secular law, however, I will first evaluate litigation currently in progress under a different but related agreement with the German State of Saxony-Anhalt. This litigation was brought by a liberal Jewish religious community that claims it has been unjustly excluded from the distribution of state subsidies made available to Jewish organizations under an agreement between that State and the Central Council of Jews. The litigation forces answers to difficult questions: what is the legal status of such agreements, who has the right to decide who counts as Jewish under them, and who speaks for the Jewish community in Germany?