On November 10, 1938, 16-year-old Gertrude Rothschild was recruited by her rabbi to hurriedly enter the ruins of their synagogue in Konstanz am Bodensee to help gather up and bury the burned remains of their Torah scrolls, all that remained after the infamous night of violence, Kristallnacht. The story remained etched in Gertrude’s memory. She later survived the Gurs concentration camp, in Vichy, France.
Gertrude understood why people burned synagogues. Decades later, she embedded the memories of Kristallnacht in the minds of her children and grandchildren, one of whom is a co-author of this piece. We all knew from an early age that when a synagogue was attacked, the core of our Jewishness was defiled and threatened.
Post-World War II Germans understand this fact and have acted accordingly when such anti-Semitism reared its ugly head. That is, until the court in Wuppertal. We don’t have the courage to tell Gertrude, now in her nineties, that those blacked-robe judges (and the regional court that later confirmed the ruling), decided that three Muslims who set fire to a German synagogue were making a political protest against Israel’s actions in the Gaza War, and therefore could not be convicted of anti-Semitism.
If German history isn’t sufficient a guide, a definition of anti-Semitism has been adopted by 31 European nations, and should guide German jurisprudence in erasing this travesty. But the stain and pain remain.
As Harvard professor Alan Dershowitz put it, “The idea that attacking a synagogue can be justified as an anti-Israel political protest, rather than anti-Jewish hate act, is as absurd as saying that Kristallnacht was merely a protest against poor service by Jewish store owners.” Or, we might add, claiming that torching a mosque is a protest against ISIS. Or dismissing the desecration of the Cologne Cathedral as a consequence of long-simmering discontent over the medieval Crusades.
The German courts’ decisions will further fuel the anti-Semitism engulfing Europe. Jews are specifically warned not to wear kippot or other Jewish symbols in many European capitals. Holocaust survivors in Malmo, Sweden — where, ironically, they settled after escaping the Nazis — are fearful of walking to synagogue on the Sabbath because the anti-Israel political establishment won’t protect them or their rabbi from anti-Semitic threats. Armed guards are stationed in front of synagogues throughout the Continent — yet, according the president of the Conference of European Rabbis, Jews do not feel safe inside their own houses of worship.
The German court decision fits the pattern of European officials and the media who find it more politically correct to attribute attacks against Jewish citizens to hooliganism, to anger at Israel, or to the plight of unemployed youth, but not to anti-Semitism.
In the United States, anti-Semitic incidents are markedly up. Hate crimes in general have increased since the charged atmosphere of the recent presidential campaign, energizing the worst and most extreme voices on the right and on the left. We have seen worshippers gunned down in a black church, and cases of arson against mosques. Still, the targets of hate crimes based on religious affiliation are still, first and foremost, Jews.
The Wuppertal court has created a new tool for those who seek to deny or do nothing about the world’s oldest hatred: simply dismissing it as political protest. That allows the guilty to go unpunished, removes the urgency for law-enforcement to act, and soothes the consciences of the apathetic.
This presents a particular problem for Germany. “Liberty,” famously said Rousseau, “is a strong food, but it needs a stout digestion.” History shows that the German judges debased liberty and justice, rather than defend them. Beginning in 1933, they formulated and presided over the Rassenschutzgesetz, turning it into the legal basis for the eventual murder of millions, and after the war, they protected Nazi criminals from prosecution.
Today, there are additional troubling signs.
The Federal Constitutional Court ruled that the National Democratic Party, despite embracing positions opposed by Germany’s Constitution, could not be banned because it was not a threat to democracy. That was exactly what they said about the Nazi Party and Hitler in 1933.
In the middle of the 19th century, the great Rabbi Samson Raphael Hirsch of Frankfurt saw the subversion of the law as a greater threat to civilization than disobeying the law:
When the world is corrupt before G-d, all the human institutions and laws of society cannot prevent society in general from going to ruin….By open robbery, it will never fall. It knows how to protect itself against that by prisons and penalties….But by underhanded dealing by cunning, astute dishonesty, craftily keeping with the letter of the law, it does go to ruin.
Not all German jurists turn a blind eye to anti-Semitism. More than a year ago, a court in Essen correctly ruled that chanting, “Death and hate to Zionists” at a demonstration was an illegal anti-Semitic activity. But, unfortunately, there are still German judges today who subvert the law and endanger Jews by ignoring common sense, morality, and history.
We Jews will defend ourselves against these threats. The German people however, would be well advised to look to institutions other than the judiciary to guarantee their own democratic future.
Rabbis Abraham Cooper and Yitzchok Adlerstein are the Associate Dean and the Director of Interfaith Affairs of the Simon Wiesenthal Center