Sorry, Liberals: You Don’t Have A Constitutional Right To Boycott Israel.
I am a New York attorney who practices in the area of pro-Israel litigation. I am writing in response to “BDS is a Trap for Democrats” by Lara Friedman. In her piece, Friedman argues that with legislation that allows states to penalize companies that boycott Israel, Republicans “are now working to undermine democratic freedoms and further codify a definition of pro-Israel that is as anathema to the real interests of Israel as it is to the American Constitution.”
I respectfully disagree with the assertion that Israel boycotts are a Constitutional right.
Since the 1960s, states, local governments, and the federal government have passed literally thousands of laws banning discrimination on the basis of race, religion, sex, national origin, and other protected categories.
Boycotts of Israeli persons and businesses — which seek to punish individual Israelis for the alleged misconduct of the Israeli government — fall well within the bounds of national origin discrimination.
But the ideas in Ms. Friedman’s article are not new at all. In the 1980s, the City Council here in New York banned large, single-sex social clubs. The resulting First Amendment challenge went all the way to the United States Supreme Court.
In a 9-0 decision, the Supreme Court upheld the Constitutionality of New York’s law, New York State Club Association v. City of New York, 487 U.S. 1 (1988). More recently, the New York State Supreme Court relied on this legal principle to rule against the Defendant in an anti-BDS case which I myself filed — Bibliotechnical Athenaeum v. National Lawyers Guild.
Does this mean that New York can ban a group of friends from having a single-sex “girl’s night out”? Not necessarily, as the laws in question are all directed at businesses and organizations. Nobody disputes that individuals have the right to be as discriminatory as they like in their private dealings.
But when individual people establish corporations, public accommodations, and other business entities, common sense says that the rules are different. We all know that there is an important difference between inviting friends for dinner at your house and operating a restaurant.
It is entirely proper for governments to prohibit businesses from discriminating on the basis of race, religion, national origin, and so forth. The local lunch counter does not have a Constitutional right to exclude Black customers; similarly, American businesses and organizations do not have a Constitutional right to discriminate against Israelis.
David Abrams, New York
David Abrams is the Executive Director of the Zionist Advocacy Center