Is it Constitutional for Minnesota to Bar Discrimination Against Israelis? You Betcha!

In 2014, upon signing legislation to expand federal anti-discrimination contracting law, President Barack Obama rightfully proclaimed we should not “subsidize discrimination.” To its credit, the American Civil Liberties Union (ACLU) noted that “President Obama is building on a bipartisan tradition, dating back over 70 years, of barring discrimination without exception when taxpayer dollars are involved.”

Fast forward three years and Minnesota legislators are now being asked to expand this same principle in a bill, which says that taxpayers cannot be asked to subsidize discrimination of Israel and people doing business in Israel. This legislation is like bipartisan laws already approved in 16 other “blue” and “red” states and a direct response to the Boycott, Divestment, and Sanctions (BDS) movement. This relentless global campaign to destroy Israel is intent on punishing all Israelis by pressuring businesses, universities, churches, and others to refuse to do business with Israelis, participate in cultural boycotts of Israel, or in several other ways demonize and isolate Jewish Israelis.

As Jewish Minnesotans, we know this story all too well as evidenced by the atrocious treatment of renowned Israeli Professor Moshe Halbertal at the University of Minnesota Law School. In November 2015, Professor Halbertal was shouted down by an angry mob of BDS activists for 45 minutes as he tried in vain to give a lecture on “Protecting Civilians: Moral Challenges of Asymmetric Warfare.” For the BDS advocates it did not matter that Professor Halbertal is a well-respected progressive ethicist, all they needed to know was that he is a Jewish Israeli and thus not deserving of the right to speak at a taxpayer funded university. Notably, many (but by no means, not all) who correctly argue that the best response to speech you don’t agree with is more speech were conspicuously quiet while Professor Halbertal had his right to be literally heard trampled on.

While some contend that this bill would infringe First Amendment rights to freedom of speech, it does nothing of the sort. Nothing in the bill restrains constitutionally protected freedom of expression. It simply requires companies wishing to do business with the state of Minnesota to refrain from discriminating against Israel or those who do business with Israel.

As noted by the ACLU, anti-discrimination contracting laws have been around for decades. Surely, in that time, there have been businesses which sought to contract with the government that also did not want to deal fairly with women, people of color, or LGBT people. And yet, despite what were no doubt deeply held and constitutionally protected beliefs, those businesses were put on notice that if they wanted to contract with the government, we were not going to allow them to act upon those beliefs and actively discriminate.

So how can a court reasonably say that barring discrimination against one group of people is perfectly constitutional, but barring discrimination against another group is against the First Amendment? For example, imagine if a court did decide that the critics of our legislation are correct and that businesses do in fact have a First Amendment right to discriminate against Israelis simply because they don’t like Israelis. How can anyone be so confident that other businesses wouldn’t take that precedent and use it to justify discrimination against Muslims, women, or LGBT people for who they are? There is no way to quarantine legalized discrimination against Jewish Israelis. As we know, what starts with the Jews, rarely ends with the Jews.

Additionally, under federal law it is illegal for American companies to cooperate with the Arab League Boycott against Israel. Notably, when signing this overwhelming bipartisan bill into law, President Jimmy Carter praised it for “end[ing] the divisive effects on American life of foreign boycotts aimed at Jewish members of our society.” Forty years later this federal anti-boycott statute, which specifically protects Israel, remains good law.

Given these precedents it has been argued in some quarters that only Congress has the power to regulate this kind of discrimination against Israelis. However, this argument ignores strongly bipartisan legislation which Congress is set to pass that explicitly authorizes the very kind of state anti-BDS laws being discussed here in Minnesota. Under this proposed law, “a State or local government may adopt and enforce measures that …restrict contracting by the State or local government for goods and services with [businesses] [that] knowingly engages in a commerce-related or investment-related boycott, divestment, or sanctions activity targeting Israel.” While this law is likely not even necessary for states to pass anti-discrimination laws which protect Israelis, it should provide additional comfort to those worried that state anti-BDS laws are an improper usurpation of Congressional authority.

Finally, it is important to keep in mind what these anti-BDS laws do not limit. As discussed above, there is an active anti-Israel movement at the University of Minnesota. Even after this law going into effect, those activists will still have every right under the First Amendment to protest Jewish Israeli professors, organize a consumer boycott against Israeli products, or even use University funds to bring in their own virulently anti-Zionist speakers.

Similarly, a business seeking to contract with the State of Minnesota is still welcome to speak out against Israel, or contribute financially to pro-BDS causes. However, just like businesses seeking to contract with cities, states, and the federal government in other contexts, these enterprises should not expect taxpayers to subsidize their discrimination against Jewish Israelis.

Ethan Roberts is the Director of the Twin Cities Jewish Community Government Affairs Program at the Jewish Community Relations Council of Minnesota and the Dakotas