Anti-Semitism, BDS, and the ACLU

Before there was a modern state of Israel, there were organized campaigns to boycott, marginalize, and intimidate Jews.  These campaigns trace back to the time of the Jewish exile from their historic homeland of Israel.  After the Romans cast the Jewish nation out of its homeland, it imposed oppressive laws to limit Jewish cultural and economic life. Economic and cultural marginalization of Jews continued with the spread of Islamic rule, where Jews were treated as second-class citizens and subject to taxes for their faith, into 15th century Spain and Cologne, to the 17th century, when non-Jewish residents of areas in the Russian Empire demonized the local Jewish populations. Thousands of Jews were killed in pogroms and a large number were forced, at the risk of death, to flee to other countries. 

While Jews in the Russian Empire were being attacked, a similar campaign by Arabs began in modern Israel in the 1920s.  By the end of the 1920s, the Arab boycott of Jewish businesses in Israel had begun, accompanied by organized massacres of Jews.

While the Arab attacks were in full swing, the rise of the Nazi Party led to the continued persecution of Jews, including boycotts of Jewish businesses, and, ultimately, the Holocaust and the extermination of millions of Jews. 

On the eve of Germany’s defeat, a pan-Arab organization known as the League of Arab States implemented its own campaign to boycott Jewish businesses and prevent the modern state of Israel from being formed.  The Arab League focused its attacks on Zionists and stipulated that its campaign was intended to “…make the boycott of Zionist goods a creed of the Arab nations.”  It was no mistake that the Arab League used the term “Zionist” to refer to all Jewish presence in what was then called Palestine and is now the state of Israel. 

Just like those behind the pogroms and the Holocaust, the Arab League focused on the claim that Zionists were malign foreign invaders that had to be marginalized to prevent them from reclaiming their homeland.  When the modern state of Israel became a reality in 1948, the Arab League broadened its boycott to ban all commercial and financial interactions with Israel and a formal boycott apparatus was implemented that still exists today.  This boycott was a means to wage economic warfare against Israel. 

While the Arab League boycott reached its zenith in the 1970s, when Arab states crippled the U.S. economy for supporting is, the Boycott, Divest, and Sanction (BDS) movement involved groups designated as terror organizations (Hamas, Popular Front for the Liberation of Palestine and Palestinian Islamic Jihad), as well as the Palestine Liberation Organization.

Initially, the BDS movement did not have a significant presence in the U.S. But starting in approximately 2014, when the “social justice” movement became a major influence, proponents of BDS have mainstreamed the movement to the point that many university campuses and several new members of Congress openly support BDS.  Like the Arab League, BDS claims that it is not discriminatory because it opposes Zionism rather than Jews.

While BDS has risen in the United States, so has anti-Semitism. Anti-Semitic incidents have spiked from a low point of 751 incidents in 2013 to nearly 2,000 in 2017.  It is no coincidence that the spread of a movement that demonizes Jews has had the same effect in the U.S. that similar campaigns had in the last 2,000 years. 

A number of American states enacted laws with modest goals to confront the discrimination.  Some prohibited the state from investing in companies that boycott Israel, while others prohibited the state from entering into contracts with those who boycotted Israel. Far from silencing those who oppose Israel’s policies, these laws simply keep the states’ hands clean.

Compared to many other state anti-discrimination laws that regulate broad categories of speech and conduct seen as being discriminatory against age, gender, sexual orientation, or race, the BDS laws are narrowly drawn and have minimal impact on speech or conduct. Indeed, as anti-discrimination laws go, the BDS laws are likely the least impactful on speech, yet they advance the critically important state goal of preventing discrimination.

Among the states that have enacted these anti-discrimination laws are Arizona and Texas.  The anti-discrimination laws of both states are currently being challenged in court and the Arizona law’s fate is being determined by the Ninth Circuit Court of Appeals, whose decision will likely play a large part in the Texas litigation and the future of anti-discrimination laws nationwide. 

The ACLU has taken the lead in challenging state BDS laws, using the spurious argument that BDS is somehow a civil rights movement.  The ACLU further argues that the state’s interest in distancing itself from discrimination is outweighed by a person’s First Amendment right to discriminate. 

Curiously, this is not what the ACLU had to say about another anti-discrimination law that was the focus of a Supreme Court case last year.

In that case, involving a baker whose religious beliefs prevented him from creating a wedding cake for a same-sex wedding, the ACLU supported a state law that went far further than imposing an incidental burden on a party who claimed to be acting out of conscience. The law in last year’s ACLU case actually compelled a person to engage in a form of speech that the person believed violated his religious beliefs.  The ACLU claimed that state anti-discrimination laws were of such importance that they had to be upheld, even if they caused a person to act in a way that conflicted with his or her deeply held beliefs. 

The Supreme Court agreed with the ACLU’s general proposition on anti-discrimination laws, stating that such laws “…are well within the State’s usual power to enact when a legislature has reason to believe that a given group is a target of discrimination…”  The Court went on to explain that discrimination leads to the targeted group being “…treated as outcasts or as inferior in dignity and worth.”  Indeed, this is the objective of BDS promoters -- they seek to marginalize anyone who supports Jewish self-determination. 

The legislatures that have adopted BDS laws deliberated on the issue of the discriminatory nature of BDS and concluded that BDS activity was targeted discrimination.  As a matter of history, the states had every reason to see BDS as just the most recent mutation of millennial-old discriminatory anti-Semitic boycotts.

One has to wonder why the ACLU supports anti-discrimination laws unless the laws address anti-Semitism. Taken to its logical end, ACLU success will necessarily lead to the elimination of all anti-discrimination laws, not just those that address the vicious spread of anti-Semitism.