The ACLU, one of the premier civil rights advocacy groups in the United States, has allowed anti-Israel ideology to push it to “undermine the antidiscrimination norms it has worked for decades to achieve,” Eugene Kontorovich wrote in an op-ed published Monday in The Wall Street Journal.
Kontorovich, an expert in international law, is a professor at George Mason University’s Antonin Scalia School of Law and a director of the Jerusalem-based Kohelet Policy Forum.
Historically, Kontorovich observed, the ACLU has maintained “that although private parties have the right to refuse to do business with people for ideological reasons, the government need not fund such conduct.” Yet the ACLU has been at the forefront of opposing such laws when the laws bar states from doing business with firms and individuals who boycott Israel.
Most recently, the ACLU has targeted the Combatting BDS Act, which passed the Senate last week with a 77 to 23 majority and supports states that have laws prohibiting contracts with businesses that boycott Israel. The main point of the Senate law is to confirm that states that have enacted laws opposing the Boycott, Divestment, and Sanctions (BDS) campaign do not violate U.S. foreign policy.
In addition to fighting the Senate law, the ACLU has challenged three of the state laws, arguing that “the state cannot condition government contracts” on a business’s “political” decision to boycott another entity for political purposes.
However, the ACLU, in the past has championed laws that bar states from doing business with firms that discriminate against people for their sexual orientation. Even if the discrimination in such a case is legal, the rights group has argued that companies that do so “must not be allowed to do so with taxpayer dollars.”
At the heart of the ACLU’s opposition to anti-BDS laws is the premise that actions guided by political motives are a form of protected speech.
Kontrovich pointed out that in Rumsfeld v. FAIR, the Supreme Court held unanimously that the government can “deny federal funding to universities that boycott military recruiters.” This was allowed, demonstrating that the politically motivated boycott was not, in fact, a form of protected speech.
“The ACLU may think that refusing to do business with people because of their sexuality is immoral while refusing to do business with people connected with Israel is a blow for justice,” Kontorovich wrote. “That’s an intelligible political position, but it’s lousy First Amendment jurisprudence. First Amendment protections are the same regardless of what one thinks of the underlying conduct.”
The irony in the ACLU’s opposition to anti-BDS laws is that Kontorovich, who helped develop the state anti-BDS laws, used the ACLU’s past standards to ensure that the laws would pass Constitutional muster. “To avoid any constitutional doubts,” he wrote, “I stuck to the model of antiboycott laws that the ACLU supports, comfortable in the knowledge that their constitutionality was unquestioned.”
In the end, “the ACLU’s enthusiasm for Israel boycotts has led it to take legal positions that threaten to undermine the antidiscrimination norms it has worked for decades to achieve,” Kontorovich wrote.
Sen. Marco Rubio (R – Fla.) explained in an op-ed published last week in The New York Times that the anti-boycott legislation that he co-sponsored with Sen. Joe Manchin (D – W. Va.) as part of the overall Senate bill doesn’t “infringe on Americans’ First Amendment rights or prohibit their right to engage in boycotts.”
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