Why Legislation Prohibiting States from Contracting with those Who Boycott Israel and Businesses that do Business in Israel Can't Be Distinguished from other Antidiscrimination Law

Professor Debbie Kaminer and David Rosenberg Explain

Many states have passed laws prohibiting the states from contracting with business that boycott Israel and people and entities that do business in or with Israel. In practice, the vast majority of targets of such boycotts are not Israel itself, or even Israel-owned businesses, but are American companies and individuals with ties to Israel.

Various lawsuits are working their way through the courts challenging these laws as a violation of freedom of expression. One barrier to these lawsuits is that the plaintiffs need to distinguish the anti-boycott (BDS) laws from "traditional" antidiscrimnation laws. Plaintiffs have tried, and some courts have bought their arguments. I find these arguments thoroughly unpersuasive; boycotts are not only a form of discrimination, they are more onerous than most sorts of discriminates. Someone who "discriminates" against, say, gay employees might refuse to employ them unless they worked for lower wages than non-gay employees. Someone who "boycotts" gay employees would refuse to employ them at all.

Meanwhile, the anti-boycott laws are narrower than typical antidiscrimination laws, in that they only prevent the boycotters from getting government contracts, but otherwise leave them free to discriminate against Israel-connected individuals and businesses.

I've blogged about this a bit in the past, but I just came across a good discussion of the issue by Professors Debbie Kaminer and David Rosenberg of the Zicklin School of Business, Baruch College, published at 55 U. Rich. L. Rev. 827, that specifically addresses the claim that anti-BDS laws are an entirely different animal than other antidiscrmination laws:

Opponents of anti-BDS legislation argue that the legislation differs substantively from traditional antidiscrimination laws in a number of important ways. They claim that ordinary antidiscrimination laws protect broad categories of people–for example prohibiting discrimination based on race, religion, or sex–while anti-BDS legislation focuses specifically on Israel and those who do business with Israel. Therefore, they contend that this legislation is illegal content or viewpoint discrimination. Additionally, they argue that unlike with other forms of discrimination, there is no compelling or even valid government interest in prohibiting discrimination against Israel and those who do business with Israel. This section will address these claims, explaining how none of the distinctions are persuasive.

Opponents often argue that antidiscrimination statutes are distinguishable from anti-BDS legislation since these traditional statutes generally regulate economic behavior and apply to broad classes of people with the goal of providing equality of opportunity. This is often, but not always, true….

[T]here are … numerous examples of antidiscrimination statutes that regulate economic behavior but do not apply to broad classes of individuals. For example, the Age Discrimination in Employment Act ("ADEA") prohibits discrimination against employees who are forty or older. It therefore does not apply to employees regardless of age, but only prohibits discrimination against employees of specific ages. Regardless of the term used, it is legal under ADEA to "boycott" or "refuse to deal with" or "discriminate" against employees who are less than forty years of age. Various state laws are even narrower in that they have both upper and lower age limits on discrimination. For example, in Indiana it is only illegal to discriminate against or boycott employees between the ages of forty and seventy-five and in Missouri it is only illegal to discriminate against or boycott employees between the ages of forty and seventy.

The same is true of statutes that prohibit disability discrimination in employment. While the Americans with Disabilities Act protects a broad class of individuals since it applies to "qualified individual[s] with a disability," many state statutes protect employees with very specific medical conditions. For example, Vermont explicitly protects individuals who are HIV positive from employment discrimination, North Carolina specifically protects employees from discrimination based on sickle cell trait and hemoglobin C trait, and Washington explicitly protects employees with positive HIV or Hepatitis C tests from discrimination. These state statutes do not protect a broad class of individuals and thus permit employers to "boycott," "refuse to deal with," or "discriminate" against individuals with some medical conditions but not others. Therefore, while many antidiscrimination statutes do apply to broad categories of individuals, it is inaccurate to state that all do or that broad application is always required for an antidiscrimination statute to pass constitutional muster.

A related distinction made by opponents of anti-BDS legislation is that these statutes represent an impermissible content-based restriction since those opposed to BDS are singled out because of their political positions. As one commentator argued, traditional antidiscrimination laws "don't care why someone refuses service–as part of a political movement, out of animus, due to fear of losing customers, or for no reason at all." The problem with this argument is that it inaccurately presumes that all boycotters are doing so to express a viewpoint.

Clearly some boycotters are participating to express opposition to Israeli policies, but many others have non-expressive reasons for participating in the boycott. As one commentator explained, "Companies may boycott Israel to curry favor with Arab states or out of mere anti-Semitism. They may hope to avoid harassment from the BDS movement or simply cave in to pressure from Palestinian groups." Perhaps the lack of viewpoint discrimination is most evident in the case of Airbnb, which initially announced it would not list rentals in the Israeli West Bank but reversed its position in response to a number of lawsuits. Airbnb announced that its initial decision to participate had been entirely apolitical, and that it was opposed to boycotts of Israel.

Similarly, legislators may have a politically neutral interest in passing anti-BDS legislation. States have a valid interest in mandating that contractors buy the best and least costly goods, regardless of the country in which they are manufactured. If the best available software is made by an Israeli company, a state has a valid non-ideological reason for wanting its contractors to buy that software. Further, at least one commentator has argued that anti-BDS legislation is content-based since it singles out only Israel and does not apply to firms refusing to do business with any other country. However, this ignores the reality that trade laws regularly treat commercial dealings with various countries differently without implicating freedom of speech.
Finally, opponents of BDS legislation argue that these statutes are substantively different from traditional antidiscrimination statutes since they address no compelling interest or even a "legitimate antidiscrimination interest in suppressing BDS activity."

Yet it is unclear why all the numerous protected categories in various antidiscrimination laws are somehow objectively more worthy of protection. For example, a number of states explicitly prohibit discrimination against smokers, and Connecticut prohibits discrimination against medical marijuana users despite the fact that marijuana is illegal under federal law. New York currently prohibits discrimination based on thirteen protected categories. Clearly, state legislators have significant discretion in determining who businesses should be prohibited from "boycotting" or "discriminating against."

Additionally, traditional antidiscrimination laws are regularly extended to protect categories closely connected to traditionally protected groups. For example, when sexual orientation is the protected category, courts have prohibited discrimination against same-sex weddings, since these events are closely associated with gay and lesbian people. While race is a traditional protected category, New York has extended this by defining race as "traits historically associated with race, including but not limited to, hair texture and protective hairstyles." Similarly, discrimination against Israel is closely associated with Jews since Israel is the only Jewish-majority country in the world, and the BDS movement began at an extraordinarily anti-Semitic conference. Sixty-nine percent of American Jews say they are either very emotionally attached (thirty percent) or somewhat emotionally attached (thirty-nine percent) to Israel. These statutes also prohibit boycotts against those who do business with Israel, which would include the forty-three percent of American Jews who have gone to Israel.