Jewish Life in Nazi Germany: Dilemmas and Responses (12 page)

More important was the attempt to receive formal decisions by the Reichssippenamt (Reich kinship office) or by German courts as further elaborated below. A significant number of those who found themselves labeled as Jews or
Mischlinge
claimed that they represented a case of mistaken identity as their family history was wrongly documented. For the most part, they argued that their father-of-record was not the Jewish husband of their mother, but an “Aryan” man. It is important to note that claims like these threatened the Nuremberg classification system to the core, unless a workable procedure could be found to clarify the question of ancestry. To dismiss these claims summarily would have collided with the racial state’s declared aim of separating the bad apples from the good. Thus, in addition to the granting of exemptions by Hitler and other forms of protection based on favor, mechanisms and procedures had to be created that would ensure the proper designation of human beings according to racial principles.

The Reich kinship office (part of the Reich Ministry of the Interior, and until october 1940, called the Reichsstelle für
Sippenforschung
, or Reich office for kinship Research) was one of the most important agencies deciding in matters of racial identity and status. It would investigate cases of doubt on the basis of genealogical, biometrical, and other documentation before it issued authoritative decisions in the form of so-called certificates of ancestry (
Abstammungsbescheide
).
²⁵
The officials of the Reichssippenamt and its regional offices were aware of their role as gatekeepers of the racial state: their ruling meant inclusion in or exclusion from discriminatory measures, depending on whether a per-son was classified as a Jew, a
Mischling
or as
deutschblütig
(“of German blood”). one of the key pieces of evidence used to clarify ancestry was expert advice provided by designated anthropologists and racial scientists. Applying what was then regarded as cutting-edge science, these experts would evaluate genealogy, blood composition, and phenotypical traits. In other words, they provided the methods and the material for drawing the line between the in-group and the out-group. overall, the Reich kinship office processed more than 52,000 requests during the war; the number of persons who received a “racial upgrade” from Jewish to non-Jewish by way of an administrative decision probably exceeded 4,000.
²⁶

Many historians have noted the absence of a uniform, linear pattern in the process of persecution, and the persistence of the semblance of normalcy in matters of
Judenpolitik
. Indeed, despite a gradual tighten-ing of anti-Jewish measures, those targeted could still pursue their own interests in a number of ways. what is more, on occasion new methods adopted to streamline racial segregation opened new avenues to escape the full impact of persecution. I am referring here particularly to a piece of legislation inserted into the German civil code on 12 April 1938 that introduced, in addition to a certificate of ancestry issued by the Reich kinship office, another way of formally deciding on a per-son’s racial affiliation. with the notable exception of Beate Meyer, historians have so far largely ignored this law, less because of the fact that its long title,
Gesetz über die Änderung und Ergänzung familienrecht-licher Vorschriften und über die Rechtsstellung der Staatenlosen
(“Law to Amend and Supplement Family-Related Regulations and to Regulate the Status of Stateless Persons”), subsequently family law novella, did not make any reference to Jews, than because of the scarcity of documentation on its application and meaning for those affected.
²⁷
This law codified racial policy in its dual function by separating members of the in-group from those of the out-group. For the latter, the novella’s importance as the last exit on the road to destruction grew with the ferocity of anti-Jewish policy. Yet, given the intentions of the authors of this piece of legislation, the actual effect of invoking it was anything but risk-free. Let us look at this law and its application more closely as it reflects an under-researched aspect of behavior by those threatened with falling victim to anti-Jewish measures after 1938. I will focus on Berlin, with its more than 80,000 Jews in the spring of 1939, one-third of the Jewish population left in Germany.
²⁸

Escape Route and Dead End: The Dual Effect of Judicial Proof of Ancestry

The revision of the German civil code in early 1938, as embodied in the new law, enabled state prosecutors to bring charges for the purpose of deciding if paternity for the person in question was with the husband—the father-of-record—or with another man—the biological fa-ther. The aim of the family law novella was to leave the clarification of a person’s ancestry, especially in terms of race, no longer to the parents alone, but to involve the courts and make them custodians of ethnic cleansing. one of the authors of the new law, state prosecutor Rexroth from the Reich Ministry of Justice, stressed in his commentaries the state’s “interest in the clarification of blood-related genealogy” (
Interesse an der Klarstellung der blutmäßigen Abstammung
), which transformed every case of unclear ancestry involving Jews and “Aryans” into a mat-ter of public concern that trumped both the child’s and the parents’ interest.
²⁹
At the time of its passing, some Jewish observers understood the novella as one of many discriminatory measures enacted in early 1938 that would further erode the living conditions of Jews in Germany.
³⁰
Yet the more the situation in the Reich worsened, the more they grasped the life-saving potential inherent in changing their racial status under the Nuremberg definitions.

It took more than the will to survive for someone targeted by anti-Jewish measures to turn this piece of Nazi legislation around and attempt to use it for his or her benefit. First, either the person in question or someone else, often one of the parents, had to approach a state prosecutor with the request to open a paternity case. In view of the highly Nazified German judiciary and the dangers of taking legal action as a Jew, this was not an appealing idea. Second, to create a convincing case, evidence had to be presented to the effect that the father-of-record was in fact not the biological father, but that the child had been conceived in an adulterous affair—an argument that, even in cases where it was true, went against some of the most basic tenets of conventional morality, especially when the parents were still alive. Third, German prosecutors did not consider evidence provided by Jews or
Mischlinge
as reliable.
³¹
Thus, each applicant had to agree to (and pay for) a full-scale genealogical and racial investigation. It goes without saying that these investigations by “experts” such as Professor Dr. otmar Freiherr von Verschuer, Josef Mengele’s mentor at the kaiser-wilhelm-Institut für Anthropologie, menschliche erblehre und eugenik (kaiser-wilhelm Institute for Anthropology, Genetics, and eugenics) in Berlin-Dahlem, involved a high risk and invaded privacy in more than one respect.
³²
Fourth, the judicial procedure, even when successful, could endanger family members and other witnesses, e.g., by revoking the “privileged” status of a Jewish man married to an “Aryan” woman once their child had been declared illegitimate and fathered by an “Aryan” man. Finally, persons who approached the prosecutor’s office with the claim of being fully “Aryan” abandoned whatever safety the Jewish community, with its shielding social relief and communal identity, could offer. This became an issue for those who failed in their efforts at court; although we have no reliable data, one can assume that being thrown back into enforced Jewishness after the judiciary had thrown out one’s case made a person’s standing in the community and its agencies even more pre-carious than before.

Despite all of these odds, between the spring of 1938 and 1945, in Berlin alone, about 700 persons—mostly
Mischlinge
—used the fam-ily law novella for the purpose of evading the full force of anti-Jewish persecution. As racial reclassification had consequences for the status not only of the person in question, but also for his or her children, the minimum of those in Berlin directly involved in cases under this law can be estimated at roughly one thousand. The available data do not offer a coherent picture for Germany as a whole; yet it is not unrealistic to assume that the fate of several thousand persons in the Reich and in Austria was decided, directly or indirectly, by courts applying the family law novella.
³³
In the context of the Holocaust, this is doubtless not a insignificant number. Yet, this law and its application are crucial for a better understanding of how Jews not only used loopholes in the fabric of German
Judenpolitik
, but also actively went against the thrust of Nazi measures to evade being persecuted.

Not surprisingly, then, most cases involving Jews or
Mischlinge
were opened on the basis of testimonies presented by them; the prosecutor would then look at the evidence—witness statements and, most importantly, the expert opinions by racial scientists. If satisfied that there was a case, the prosecutor opened proceedings at the Landgericht (state court), which, as a rule, decided in favor of the prosecutor’s application while the defendant offered no objection.
³⁴
The bizarre legal constellation implied that the accused had no interest in refuting the prosecutor’s evidence, as he or she depended on it in order to be racially upgraded. The increase in the number of applications under the family law novella reflects the actual threat posed by the ensuing “fi-nal solution.” The more imminent the prospect of being deported, the greater was the willingness by those affected, in their desperation, to overcome inhibitions of presenting intimate personal and family affairs for judicial scrutiny. Roughly half of all Berlin cases involving Jews or
Mischlinge
were opened in the years 1941 and 1942, at the height of the deportations to the death camps and ghettos in the east.
³⁵

The hopes of the applicants were often unfounded. In Berlin, the sample selected from a total of 700 cases involving Jews comprises 64 cases on 61 persons, almost equally divided according to gender, but much younger than the average age of the remaining Jewish population in the Reich.
³⁶
Less than half of them (26) ended with a verdict that improved the applicant’s racial status. of those who were successful, two-thirds had applied as
Mischlinge ersten Grades
(mixed breeds of the first degree)
³⁷
and became
deutschblütig
as a result of the court verdict. only five
Volljuden
(full Jews) managed to be reclassified as
Mischlinge
. The remaining cases (38) brought no improvement in racial status; they were either rejected by the prosecutor (13), were pending until the end of the war (11), cannot be retraced on the basis of the remaining documents (7), or were terminated as a result of the deportation of the applicants (5). In two cases, the applicants were downgraded from “Aryan” to the status of
Mischling ersten Grades
. Though the number of family members deported cannot be established, it seems to have been considerably higher than that of the applicants sent to the east. In short, the family law novella turned out to be less a means of escape for those desperate to evade German anti-Jewish policy than a tool in the hands of the state to make that very policy more efficient.
³⁸

For the guardians of the nation’s purity as a
Volk
, the dual aim of the racial state—to exclude the bad and to include the good—offered
one
set of problems, the application of the law
another
. Formally independent in their decisions, German judges received mixed guidelines on how to decide in matters of ancestral proof: on the one hand, the Reich Justice Ministry demanded “[that judges] . . . integrate
Volksgenossen
wrongly regarded as
Mischlinge
or Jews into the community,” and on the other hand, it called for “energetically refusing intruders whose German blood qualities (
Deutschblütigkeit
) could not be proven without doubt.”
³⁹
“expert” opinions provided by racial scientists were as crucial to the administrative decisions of the Reich kinship office as they were to the working of the family law novella, yet in practice, they presented serious problems to the courts. The few institutions qualified to perform the investigations were sitting on a rising number of requests, which created backlog and delay.