by The Destruction of the European Jews, Vol. 1-3 (Third Edition) Yale University Press (2003) (pdf)
13. RGBI I. 1333.
16. The paragraph in these categorizations defining half-lews as Jewish begins with
the words “AtsJude giUauch..." (literally, “As Jew is considered also. ..”). The phrase
gave rise to the use Geltungsjuden for these half-Jews. Occasionally, victims or their
relatives made the unsuccessful semantic argument that to be "considered" Jewish was
not the same as “being" Jewish. Nevertheless, Geltungsjuden living with their non-
Jewish parent were protected from deportation. For a discussion of this subject, see
H. G. Adler, Der venvallete Mensch (TObingen, 1974), pp. 187, 199, 223, 280, 294, 339,
699.
17. Stuckart and Schiedermair, Rassen- und Erbpflege, p. 17.
72
DEFINITION BY DECREE
to the destruction process. They remained non-Aryans under the earlier decrees and continued to be affected by them, but subsequent measures were, on the whole, taken only against “Jews.” Henceforth
the Mischlinge were left out.
The administration of the Lösener decree, and of the Arierparagraph that preceded it, was a complicated procedure, which is interesting because it affords a great deal of insight into the Nazi mentality. In the first place, both decrees were based on the descent: the religious
status of the grandparents. For that reason, it was necessary to prove
descent. In this respect the decrees affected not only "non-Aryans”;
any applicant for a position in the government or the party could be
requested to search for the records of his ancestors. For such proof of
ancestry
seven
documents
were
required:
a
birth
or
baptismal
certificate, the certificates of the parents, and the certificates of the
grandparents.'*
Prior to 1875-76, births were registered only by churches.” Thus
the churches were drawn into an administrative role in the implementation of the first measure of the destruction process, a task they performed as a matter of course. Not so simple was the attempt to obtain the cooperation of officeholders. Although civil servants had to fill out
a form only if it could be presumed that the information disclosed
therein would result in their dismissal, the disquiet, not to speak of the
paper work, was still considerable. At one point the Interior Ministry
proposed that proof of descent be supplied by all civil servants and
their
wives,®
and
the
Justice
Ministry
demanded
this
evidence
of
notaries.18 19 20 21 At least some universities (counting their non-Aryan students) contented themselves with the honor system,22 but the party insisted on procedures, even if not always with complete success. As
late as 1940 the chief of the party's foreign organization had to remind
his personnel to submit the documents. Most employees in the office
18. For detailed specifications see, for example, the "Merkblatt für den Abstam-
tnungsnachweis" of the Reichsfilmkammer. October, 1916. G-55.
19. Pfarrämter. After 1875-76, registrations were performed by the state's Standesämter. Reichsfilmkammer “Merkblatt," October 1936, C-5S. The churches also registered baptisms of converts. In 1936 the Evangelical-Lutheran Church in Berlin prepared an alphabetical card index from January 1, 1800, to September 30, 1874, complete with
changes of names. See Götz Aly and Karl Heinz Roth, Die restlose Erfassung (Berlin,
1984), pp. 70-71.
20. Uwe Adam, Judenpolitik im Dritten Reich (Düsseldorf, 1971), p. 147. On the
struggle over universalizing the requirement, see Hans Mommsen, Beamtentum im Dritten Reich (Stuttgart, 1966), pp. 52-53.
21. Adam, Judenpoiitik, p. 147.
22. Albrecht Götz von Olenhusen, “Die 'nichtarischen’ Studenten in den deutschen
Hochschulen,” Vierteljahrshefte für Zeitgeschichte 14(1966): 181.
73
DEFINITION BY DECREE
had simply ignored an earlier directive for submission of records, without even giving an excuse or explanation for failure to comply.“
Even in the early 1930s a whole new profession of licensed "family
researchers”
< Sippenforscher
or
Familienforscher)
had
appeared
on
the scene to assist applicants and officeholders in finding documents.
The
Sippenforscher
compiled
Ahnentafeln
(ancestor
charts),
which
listed parents and grandparents. Sometimes it was necessary to do
research
on
great-grandparents
also.
Such
procedures,
however,
were
limited to two types of cases: (1) applications for service in such party
formations as the SS, which, in the case of officers, required proof of
non-Jewish descent from 1750, and (2) attempts to show that a Jewish
grandparent was actually the offspring of Christian parents. The latter
procedure was possible because a grandparent was only presumed to
be Jewish if he (or she) belonged to the Jewish religion. In the same
way, inquiry into the status of the great-grandparents could be used to
the detriment of an appliciant. For if it was shown that a Christian
grandparent had actually been the child of Jews, the grandparent would
be considered a Jew, and a ''downward" classification would result.23 24
The final decision about the correctness of the facts was made by
the agency that had to pass on the applicant, but in doubtful cases a
party office on family research (the Sippenamt) rendered expert opinions for the guidance of agency heads. There was a very interesting category of doubtful cases: the offspring of extramarital relationships.
The status of these individuals raised a peculiar problem. How was one
to classify someone whose descent could not be determined? This
problem was divided into two parts: individuals with Jewish mothers
and individuals with German mothers.
In cases of offspring of unmarried Jewish mothers, the Reichssip-
penamt (Family Research Office) presumed that any child bom before
1918 had a Jewish father and that any child born after 1918 had a
Christian father. The reason for this presumption was a Nazi hypothesis known as the “emancipation theory," according to which Jews did not mix with Germans before 1918. However, after 1918 the Jews had
the opportunity to pursue the systematic disintegration (Zersetzung) of
the German people (Volkskorper). This activity included the fostering
of extramarital relationships.
In commenting on this theory, Amtsgerichtsrat (Judge) Klemm of
the party’s Legal Office pointed out that it was quite true that Jews
were guilty of this practice but that, after all, the practice was intended
23. Order by Gauleiter Bohle, May 31, 1940, NG-1672. The lack of prompt compliance was at least partly due to the difficulty of procuring the necessary papers. See file of Dr. Gerd Wunder, under RKO la J. Folder was located at Federal Records Center,
Alexandria, Virginia, before its dissolution.
24. Stuckart and Schiedermair, Rassen- und Erbpflege, p. 16.
74
DEFINITION BY DECREE
o
nly to violate German women. It could hardly be assumed that a
Jewish woman undertook pregnancy in order to harm the German man.
According
to
the
criteria
used
by
the
Reichssippenamt,
complained
Klemm, a Jewish mother could simply refuse to tell the office who the
father was, and her child would automatically become a Mischling of
the
first
degree.“
Klemm’s
comments
were
probably
quite
correct.
This was perhaps the only Nazi theory that worked to the complete
advantage of a number of full Jews.
The “emancipation theory” does not seem to have been applied to
the offspring of unwed German mothers. The reason was simple: the
party’s Reichssippenamt rarely, if ever, got such cases. If it had gotten
them, just about all of Germany's illegitimate children bom after 1918
would have been classified as Mischlinge of the first degree. But since
the party did not get the cases, the illegitimate offspring of a German
mother remained a German, with all the rights and obligations of a
German in Nazi Germany. However, there were a few instances when a
Jew or Mischling had acknowledged paternity of a German mother’s
child. In some of the cases, persons who had been classified as Mischlinge went to court, pointing out that the legal father was not the actual father and that, therefore, there was ground for reclassification. For
such cases the Justice Ministry laid down the rule that the courts were
not to inquire into the motives of the person who had acknowledged
fatherhood and that they were to reject any testimony by the mother,
"who is only interested in protecting her child from the disadvantages
of Jewish descent.”“
The cumbersome task of proving descent was not the only problem
that
complicated
the
administration
of
the
decrees.
Although
the
definition appeared to be airtight, in the sense that, given the facts, it
should have been possible at once to determine whether an individual
was a German, a Mischling, or a Jew, there were in fact several problems of interpretation. Consequently, we find a whole number of administrative and judicial decisions that were designed to make the definition more precise.
The principal problem of interpretation hinged on the provision in
the Losener decree according to which half-Jews were classified as
Mischlinge of the first degree if they did not belong to the Jewish
religion and were not married to a Jewish person on or after September
15, 1935. There was no legal difficulty in determining whether a person
was married; marriage is a clearly defined legal concept. But the deter- 25 26
25. Amlsgerichtsrat Klemm, "Spricht eine Vermutung for die Deulschblutigkeit
des inch! feststellbaren Erzeugers ernes von einer Jiidin ausserehelich geborenen
Kindes?” Deutsches Recht, 1942, p. 850, and Die Judenfrage {Vertrauliche Beilage), July
1. 1942, pp. 50-51.
26. Directive of Justice Ministry, May 24, 1941. Deutsche Jusliz. 1941, p. 629.
75
DEFINITION BY DECREE
mination of criteria for adherence to the Jewish religion was not so
simple. Whether a half-Jew was to be classified as a Jew or a Mischling
of the first degree ultimately depended on the answer to the question:
Did the man regard himself as a Jew?
In
1941
the
Reichsverwaltungsgericht
(Reich
Administrative
Court) received a petition from a half-Jew who had not been raised as a
Jew and who had never been affiliated with any synagogue. Nevertheless, the court classified the petitioner as a Jew because there was evidence that on various occasions since 1914 he had designated himself 3$ a Jew in filling out forms and official documents, and he had failed to correct the impression of the authorities that he was a Jew.
Toleration of a presumption was sufficient conduct for the purpose of
classification as a Jewish person.”
In a later decision the Reichsgericht (highest court in Germany)
ruled that conduct was not enough; the attitude disclosed by the conduct was decisive. The particular case concerned a young woman, half-Jewish, who had married a half-Jew (Mischling of the first degree). The
marriage consequently did not place her into the Jewish category. Now,
however, there was the matter of her religion.® The evidence showed
that in 1923 and 1924 she had had Jewish religious instruction upon the
insistence of her Jewish father. In subsequent years she accompanied
her father to the synagogue, once a year, on Jewish high holy days.
After her father died in 1934, she discontinued visits to the synagogue,
but, in asking for a job in a Jewish community organization, she listed
her religion as Jewish. Until 1938, moreover, she was entered as a
member of a synagogue. The court decided that she was not Jewish.
The evidence showed that she had resisted her father’s attempt to have
her formally accepted with prayer and blessing into the Jewish religion.
She had visited the synagogue not for religious reasons but only in
order to please her father. In asking for a position with the Jewish
community organization, she was motivated not by a feeling of Jewishness but solely by economic considerations. As soon as she discovered her entry in the Jewish community list, she requested that her name be
struck out.” 27 28 29
27. Decision of the Reichverwaltungsgericht, June 5, 1941, in Deutsches Recht, p.
2413; also in Die Judenfrage (Vertrauliche Beilage), February I, 1942, pp. 11-12.
28. In Jewish practice the mother's religion is decisive in determining the religion of
the half-Jewish child.
29. Decision of the Reichsgericht/3. Strafsenat, August 13, 1942, also in Deutsches
Recht, 1943, p. 80; Die Judenfrage (Vertrauliche Beilage), February 1, 1943, pp. 11-12.
See also directive by Reich Security Main Office 1V-B-4 (signed Gunther). February 20
1943, exempting Mischlinge who could prove an intent to leave the Jewish religion prior
to September 15, 1935, but who did not do so for unavoidable reasons until a later time.
Israel Police 1284.
76
DEFINITION BY DECREE
The attitude and intention of the individual was decisive in another
case, which is very interesting from a psychological point of view. A
half-Jew who had married a German woman in 1928 had thereupon
ceased to be a member of his synagogue. In 1941 the Jewish community organization in Berlin, which was then performing important functions in the destruction process, suddenly demanded information about the man's personal finances, and when this information was refused,
the Jewish community went to court, claiming that the defendant had
quit his synagogue but not his religion. The court rejected the Jewish
organization’s argument, pointing out that the Jewish religious community had no legal personality and no public law status. Consequently, any man who had quit his synagogue had quit his religion at the same
time, unless there was evidence that he still r
egarded himself as a Jew.
There was no such evidence in this case. To the contrary, the defendant
had provided proof of his membership in party organizations, and in
every other respect the court was satisfied that this man had intended
to sever his connections with Jewry when he left the synagogue.
This decision was one of the few that were assailed by the party’s
Race-Political Office. A lawyer of that office, Dr. Schmidt-Klevenow,
referring to the fact that the Jewish community itself had claimed the
defendant to be a member, asked whether the court had to be “more
pontifical than the pontiff (päpstlicher als der Papst).”*
From all these decisions the judiciary's concern with half-Jews is
quite evident. This concern was the product of a desire to balance the
protection of the German community against the destruction of the
Jews. When a person was both German and Jewish by parental descent, the judges had to determine which element was dominant. To do this, they only had to be a little more precise than Lösener had been in
asking the question of how the individual had classified himself.
The
court
interpretations
of
the
Losener
decree
illustrate
once
more that there is nothing “racial” in the basic design of the definition.
In fact, there are a few very curious cases in which a person with four
German grandparents was classified as a Jew because he belonged to
the Jewish religion. In its decision one court pointed out that Aryan
treatment was to be accorded to persons who had the “racial” requisites, “but that in cases when the individual involved feels bound to Jewry in spite of his Aryan blood, and shows this fact externally, his
attitude is decisive.”30 31 In another decision, by the Reich Finance Court,
30. Decision of an Amtsgericht, affirmed on appeal, reported in Deutsches Recht.
1941, pp. 1552-53. Summary of case with comment by Schmidt-Klevenow in Die Judenfrage (Vertrauliche Beilage), September l, 1941, pp. 61-63.
31. Decision by Oberlandesgericht Königsberg, 4. Zivilsenat, June 26, 1942, in Die
Judenfrage (Vertrauliche Beilage). November 1, 1942, pp. 82-83.
77
DEFINITION BY DECREE
it was held that an Aryan who adhered to the Jewish religion was to be
treated as a Jew for the duration of his adherence to the Jewish faith.
According to the court, an individual “who is racially a non-Jew but