Marc Greendorfer: Laws Opposing the Boycott Movement of Israel Do Not Violate Constitution

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Introduced in response to the “BDS Movement”, a growing international campaign of intolerance and bigotry operating under the guise of human rights advocacy, Maryland House Bill 949 and Senate Bill 739 is an important and needed law that will help to protect many Marylanders from discrimination.

Some of those who oppose anti-discrimination laws such as HB949/SB739 have argued that BDS activity is subject to the same type of constitutional protections that civil rights boycotts enjoy. However, a number of constitutional scholars, including my legal foundation, have engaged in exhaustive research of the issues and have demonstrated the flaws in claims that measures such as these violate the Constitution.

The case that BDS activists rely upon for their constitutional claim, dealing with the rights of African Americans to engage in boycotts to oppose our own government’s suppression of their civil rights, is simply inapplicable to BDS activity.  BDS activity has been described by the federal government as foreign interference in domestic commercial markets with the intent of using American consumers as a pawn in a foreign political dispute.  American BDS activists are not taking action against our government in defense of their own civil rights.  Rather, they are interjecting themselves in a foreign dispute and using our markets to punish the party that they oppose. 

The Supreme Court has consistently upheld federal law that prohibits participation in such boycotts and in a case that dealt with the specific situation of Americans taking part in a boycott against a foreign nation that resulted in interference in American commercial markets, the Supreme Court found such regulation to not violate First Amendment rights. 

As a legal matter, there is no question that HB949/SB739 is a common sense, reasonable and permissible state action to combat discrimination. As a policy matter, there is great urgency in having the State of Maryland take a stand against the increasingly hateful targeting of Jews and Marylanders of Israeli-descent, and their businesses. 

While those who support the BDS Movement claim that it is a rights movement, the truth is that it is a revival of the old Arab League boycott against Israel, reinvigorated with a savvy public relations arm and backed by designated terror organizations and sponsors of international hate.  The BDS Movement came to life at the behest of, among other state actors, Iran, in a conference that former Congressman Tom Lantos described as “an anti-American, anti-Israel circus…a transparent attempt to de-legitimize the moral argument for Israel’s existence as a haven for Jews.” 

BDS Movement activity has, as its ultimate goal, the elimination of the modern State of Israel and the disenfranchisement of Jews worldwide from their historic homeland.  In recent testimony before Congress, Dr. Jonathan Schanzer identified ties between supporters of designated terror groups, such as Hamas, and key supporters of the BDS Movement. 

The BDS Movement counters these facts by claiming that they are not engaging in discriminatory activity since they are engaging in a political protest against Israel and do not target Jews.  The fact that the charter of the BDS Movement declares that it seeks to eliminate the only Jewish state on the planet clearly contradicts the public relations ploy of BDS activists.  If the BDS Movement’s claims that they do not discriminate sound specious, one need only look to a very recent opinion from Judge Leona Brinkema of the Federal Court for the Eastern District of Virginia: 

“The argument has also been made that the Court cannot infer an anti-Muslim animus because the EO does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is flawed …. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution.”

This opinion was rendered in the case of President Trump’s executive order barring entry of individuals from certain Muslim-majority countries and it is equally applicable to BDS claims that they don’t discriminate because they aren’t specifically targeting Jews or Israeli Americans.  From the founding of BDS to today, the intent has been to discriminate against Jews, weaken their homeland and ultimately destroy that homeland.  The inefficiency of BDS in accomplishing these goals in no way mitigates the discriminatory nature of BDS.

Supporters of the BDS Movement argue that they have a right to protest against Israel.  They are correct.  HB949/SB739 in no way infringes upon this right.  Marylanders could still take to the streets to voice their opinions against Israel and individual Marylanders can, if they so choose, avoid doing business with Israel.  

This bill is simply an exercise of Maryland’s proprietary power to spend or invest state funds in a manner that reflects the moral and economic interests of the people of the State of Maryland.  Furthermore, it follows the same longstanding policy against discriminatory boycotts as is enshrined in a number of federal laws, including the anti-boycott provisions of the Export Administration Act and Treasury Department regulations.

The State of Maryland not only has the constitutional authority to choose to not do business with or invest public funds in those who foster discrimination, it has a moral obligation to avoid contributing to such activity. 

Marc Greendorfer is an attorney and founder of Zachor Legal Institute, a legal foundation that focuses on constitutional scholarship and rights advocacy.

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