Israel, Gay Marriage, Boycotts, and the Right to Withhold Consent

Who can participate in a boycott?

Immanuel Kant, the great German philosopher, derived what he called the categorical imperative, one formulation of which says—pardon the paraphrase—that we should act only according to rules that could be applied universally. Which brings us to Israel and gay marriage.

Both of those issues have turned up in this year's Virginia General Assembly, although one has received far more attention than the other. Israel turns up in a bill that takes a swipe at the BDS movement, which urges boycotts, divestment and sanctions against Israel for its treatment of Palestinians.

The BDS movement is woefully misguided and deeply flawed. But it has every right to be. Nothing in the Constitution protects the rights of only those who are correct on the merits of an issue. Yet a bill in the House of Delegates (HB1282) would have prohibited state contractors from boycotting goods from Israel.

As the Virginia ACLU pointed out, that bill would have violated fundamental First Amendment principles by "target(ing) core political speech and infring(ing) on the freedom of business owners to express their political beliefs." After all, boycotts have a long and proud tradition in the U.S. They are, as the ACLU says, designed to bring about change through speech, association, assembly, and petition—basic constitutional rights.

Fortunately, the bill was rewritten and now requires only that the state's secretary of commerce and trade work with the Virginia-Israeli Advisory Board to "ensure free, fair, open, and consistent business practices." That's better than the original bill—but it still looks like a thumb on the scale.

During a recent Editorial Board meeting with opponents of the legislation, one BDS activist pointed out that, after all, people should be free to do business—or not do business—with anyone they pleased. The government should not tell people with whom they must conduct commerce.

And that is a valid argument.

But many of those who might sympathize with that argument regarding BDS find it abhorrent in another context.

The House of Delegates has passed a religious-freedom measure that some call a "license to discriminate." It stipulates that a government entity cannot take action against a person who holds a religious objection to gay marriage.

The Virginia ACLU's Claire Gastañaga made a good case against the bill in the Times-Dispatch a couple of weeks ago. She notes that the measure singles out certain types of belief—and only those types of belief— for special treatment. Moreover, its own language affords those beliefs protections "in addition to the protections provided under the United States Constitution, the Constitution of Virginia, and federal and state law." That, she correctly concludes, is a "grant of special rights" that "prefers one set of beliefs over others."

But this is as much a complaint that the bill is too narrow as that the bill is too broad. A more ecumenical bill—one stipulating that government could not take action against a person for any religious belief, or the lack of belief—would not privilege one faith over another, so that objection would go away.

But to get back to Kant.

A boycott consists of declining to engage in commerce with someone who is complicit in what the boycotter considers immoral. Boycotts usually are aimed at companies, but there is no law that says they must be. You could, say, boycott an individual artist by refusing to purchase Eminem's albums because of his misogynistic lyrics.

This raises a question: Under what general rule can the government allow someone to withhold his commerce from an Israeli exporter, on the basis of his moral and political objections to Israel's treatment of Palestinians, but forbid him to withhold his commerce from a gay couple on the basis of his moral and political objections to gay marriage?

Please note that in the most talked-about instances, in which bakers and photographers have resisted involvement with gay weddings, the resisters are not refusing to do business with gay or lesbian couples. The baker, for instance, just doesn't want to make a specific type of cake for a specific event. Yet he'd happily sell them a birthday cake, or a dozen chocolate-chip cookies. This might be more like a bookstore refusing to stock a certain book rather than refusing to sell any books to certain customers.

By the same token, Republicans in the General Assembly ought to explain by what general rule they would allow the baker to withhold his business from a gay couple—yet forbid a critic of Israel to withhold his business from an Israeli exporter.

You could say (though it's not clear why) that individuals may boycott but businesses can't. In many instances, though, the individual and the business are one and the same. And as the ACLU notes, "business owners" also have a constitutional right "to express their political beliefs."

Some might argue that we should allow people to withhold commerce only when they are right on the merits of the issue. Any half-intelligent person can see what a dead end that is.

And then there's the evil of Jim Crow-type discrimination. If people can withhold commerce from others for any reason, can white hotels turn away black customers? Can Christian doctors refuse to treat gay patients, or Islamic ones turn away Jews?

Perfect consistency of the kind Kant demanded can lead down some very dark roads. That is why even an idea as scintillating as the categorical imperative should be leavened with Chesterton's cautionary remarks about the maniac. The maniac, he wrote, is trapped "in the clean and well-lit prison of one idea: he is sharpened to one painful point. He is without healthy hesitation and healthy complexity."

Healthy indeed.

This column originally appeared at the Richmond Times Dispatch.