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Many state and federal lawmakers support anti BDS laws. BDS is a movement about boycotting Israel for alleged human rights abuses. (It stands for Boycott Divestment and Sanctions.)

A federal court has already ruled that one particular such law tramples on the freedom of speech, as guaranteed by the 1st amendment.

The US constitution makes it very clear that religion and government are not allowed to mix directly. In practice, this means the government cannot "make a law respecting an establishment of religion".

There have been courts that struck these laws down. Are these laws violating the First Amendment the way that they are written?

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  • aclu.org/press-releases/… -- court rulings suggest the answer is yes.
    – Number File
    Jul 23, 2021 at 0:09
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    The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." You say, "The US constitution makes it very clear that religion and government are not allowed to mix directly" which is broader than the statement in the First Amendment. Are there other elements of the Constitution or Amendments that support the entirety of your statement?
    – Don Branson
    Jul 23, 2021 at 13:58
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    @DonBranson No, there aren't. That's all it says on the matter other than that no religious test can be required as a condition of any government office or public trust. The "separation of church and state" that many seem to think is in the Constitution comes mostly from an 1802 letter by Thomas Jefferson which, obviously, carries no force of law and was merely his opinion. That being said, "make no law... prohibiting the free exercise thereof" is intentionally quite broad. In general, religious practices can't be banned (or compelled) with a few narrow exceptions.
    – reirab
    Jul 23, 2021 at 16:20
  • @reirab - Yes, that's my understanding, too, but since Number File made this claim, I would like to hear from the OP their reason for making it.
    – Don Branson
    Jul 23, 2021 at 16:28
  • @NumberFile: When clarifying a question on SE, please do it by editing the question, not in comments.
    – user3392
    Jul 24, 2021 at 20:46

3 Answers 3

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An anti-BDS law may be invalid in some circumstances, but this has nothing to do with the establishment clause of the First Amendment.

Boycotting or not boycotting Israel is not an inherently religious question and isn't justified as such.

More often the issues will be pre-emption by a higher level of government's laws, lack of legal authority to enact such a law under an authorizing statute, or possible the "dormant commerce clause."

The linked material in the OP refers to the First Amendment freedom of association and possible the First Amendment freedom to petition, not to the establishment clause.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet ♦
    Jul 24, 2021 at 17:12
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    I would have to disagree. An anti-BDS law is invalid under all circumstances in US law, as every legal challenge so far has determined. And I would think that one of the most pertinent issues with such laws would be issues with the freedom of speech clause of the First Amendment. A boycott is a form of speech or expression, and these laws are passed with the more or less express purpose of suppressing that expression.
    – Obie 2.0
    Jul 25, 2021 at 4:46
  • @Obie2.0 under all circumstances? divestment (the D in BDS) is an investment strategy. It is within the purview of the federal government to regulate both investing and foreign policy.
    – grovkin
    Jul 25, 2021 at 7:02
  • @grovkin The Federal Government can forbid investing in certain countries via sanctions, but there's really no precedent for the Federal Government to forbid not investing in a country or advocating to collectively not invest. Seems like a pretty basic free assocation violation. I'd also note that all of these laws are state and lower so even if it did fall under the Federal purview, it still wouldn't be applicable here.
    – Shmuel Newmark
    Jul 25, 2021 at 9:23
  • @ShmuelNewmark these are calls for actions by public institutions (state universities, public workers' pension funds, etc.) All of their actions are subject to government regulation. It's not so much about being forced to invest as it is about not having a blanket policy of forbidding a certain type of investment. Can it be still done without saying that it is being done? Maybe. But the point is that the government can forbid such a policy from being in the open.
    – grovkin
    Jul 25, 2021 at 18:49
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First right from the get go, the court says explicitly "The First Amendment’s protection of boycotts, however, is not unlimited."

That is to say it's going to get nuanced...

In a footnote of the decision you'll find this,

Because “religion” is mentioned only once, and “national origin” and “nationality” are used iterchangeably, the Court construes Texas’s claim to be that H.B. 89 is designed to prevent discrimination on the basis of national origin

The court explains

Both interests [“in prohibiting national-origin discrimination,” and in “prohibiting state contractors from violating anti-discrimination principles.”] rely on Texas’s argument that H.B. 89 is a “standard anti-discrimination measure” prohibiting discrimination on the basis of national origin.

They conclude, "it is not." Having rejected this (for many reasons) they conclude it's a "protected expression-political boycott" and thus free speech,

Plaintiffs have demonstrated that H.B. 89 infringes their First Amendment right to engage in protected expression—political boycotts based on a contentious public issue—resting on “the highest rung of the hierarchy of First Amendment values.” Claiborne, 458 U.S. at 913 (quoting Carey, 447 U.S. at 467).

So what's interesting here is that this can go on for quite some time, and likely will because a boycott is not "free speech" if done for reasons that discriminate on national origins. Other states can presumably muster different reasons and implementations to protect an apartheid regime from economic boycott.

So in short,

  • They did not find this to be a violation of the establishment clause
  • They did not find this to be a violation of freedom to assembly
  • Having rejected the two claims by Texas to establish BDS as discriminatory, they found this specific case to be "protected expression-political boycott."
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  • "Apartheid" is hardly an accurate description of Israel.
    – Acccumulation
    Oct 19, 2022 at 2:39
  • You've neglected to mention part of the ruling: "Nevertheless, even if Texas’s purported interests were the actual interests advanced by the statute [this refers to the claimed goal of preventing discrimination based on national origin], and even if they were compelling, the Court finds that H.B. 89 is overbroad in its restriction of protected speech. For this independent reason, Plaintiffs are likely to succeed on their claim that H.B. 89 is an unconstitutional content- and viewpoint-based restriction on speech."
    – Obie 2.0
    Oct 19, 2022 at 2:54
  • In other words, even if the bill were truly intended to prevent discrimination based in Israeli national origin—or any other national origin—and even if it were narrow enough in implementation to target only boycotts based on such discrimination, it would still likely fall afoul of First Amendment protections.
    – Obie 2.0
    Oct 19, 2022 at 2:56
  • Note also that the ruling notes that the standard that must be met in such a case is quite strict: "It requires the government to “show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by [the restricted] expression’s ‘necessary impact on the actual operation’ of the Government.”
    – Obie 2.0
    Oct 19, 2022 at 2:59
  • In other words, a law that prevented the government from working with contractors who engaged in a boycott that discriminated based on national origin in whom they chose to do business with would have to establish both an actual effect on the operations of the government, and that such an effect outweighed the speech interests involved. That would not be an easy legal barrier to overcome, even for transparent discrimination based on national origin (discrimination in hiring on the same basis, on the other hand, would almost certainly violate some other laws).
    – Obie 2.0
    Oct 19, 2022 at 3:04
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A boycott of any US company (or US entity doing any kind of commerce) in which one involves others, or is a non-active agent ("supporter"), is illegal in the US by federal law. Period, no question of there being any connection to religious reasons.

Admittedly, it is winked at and certain people have made fortunes organizing boycotts and threatening to do so. (Rev. Jesse Jackson made as much as $70,000,000 one year in donations after "exploring" the organization of such boycotts against the donating companies whom he then... felt were not deserving of boycotting.) But it is still against explicit federal trade law. And certainly, no US Attorney ever brought a case against those boycotting US companies that did business with South Africa so... "winked at" seems to be the rule to a jaded soul like mine.

Boycotting Israel is illegal by federal law in any contract that crosses US borders. That means any importing or exporting along with anything else that fits. I said it that way because an exporter, for example, like my company is breaking federal law if it even accepts a contract that has hidden away in boilerplate the requirement to not do business with Israel. (So we don't do business with Muslim countries. Period. Do not seek their business, do not respond to the VERY occasional inquiry. Because they are often REQUIRED by their own laws to insert such clauses into every contract. They have to do it by law and we cannot just nod and ignore it, by law. So we have no basis for business. Obviously, not all do of course, and some lie, of course, about the "it's our law, sorry" but we don't care to be ground between either government or polity.)

In neither of the cases above is there any religious underpinning, except perhaps in some very indirect way. It's simply one government demanding its citizens do not undermine its foreign policies goals and obligations for a pile of cash.

So one or the other kind of situation would almost certainly cover any "anti-BDS" law you are aware of. Invalidating it. No religious aspect involved in the invalidation.

So it is hard to see why a Constitutional aspect need arise. Though it is definitely an interesting idea. The problem with it though is that the Constitution doesn't have any problem with support of religion in general, just in "establishing" a particular one. And I don't see how having or not having "anti-BDS" laws would "establish" any particular religion.

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    Please cite a source for the statement that a boycott is prohibited by Federal law. I do not think this is accurate.
    – David Siegel
    Jul 23, 2021 at 19:37
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    @DavidSiegel I'm surprised by this, too. Also, surprised to run into an actual APL developer. I don't see many around. :)
    – Don Branson
    Jul 23, 2021 at 19:40
  • @DavidSiegel This seems to be an incorrect summary of Export Administration Act of 1979, which prohibits the U.S. government from contracting with companies who comply with another nation's boycott of Israel. en.wikipedia.org/wiki/Export_Administration_Act_of_1979
    – Alex P
    Jul 24, 2021 at 14:35
  • Why were all the vowels in Rev. Jesse Jackson's name omitted?
    – nick012000
    Jul 25, 2021 at 8:48

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