Posted by Ryan Suto on June 12, 2019 in Blog
Last month, Texas passed a new anti-boycott law after the 2017 version was blocked from enforcement in federal court for its unconstitutional provisions. The Arab American Institute has seen this before: in March, we testified against a revamped anti-boycott bill in Arizona after a federal court blocked the original 2016 law. Texas’s new law looks striking similar to Arizona’s new law, which still violates protected political expression.
In fact, the Center for Public Integrity recently found, as part of their Copy, Paste, Legislate series, that anti-boycott laws across the country “have been crafted by activists, then copied from one state to the next, adopted with virtually identical language”. the Israeli-American Coalition for Action (IACA) supported both laws in Arizona and Texas and testified in favor of the Arizona law, and American Legislative Exchange Council (ALEC) has heavily lobbied in support of the Texas law. Both IACA and ALEC actively advance and support these anti-boycott laws in state legislatures across the country.
The goal of anti-boycott legislation is to chill the willingness of private entities to engage in political boycotts out of fear or losing, or not winning, government contracts. The revised bills, after the original laws are struck down by the courts, aim to keep expression-chilling provisions on the books. In both Arizona and Texas the new laws no longer apply to smaller companies or smaller contracts in order to limit those who have standing to launch a legal challenge. But constitutional rights do not cease to apply if they impact a small minority of citizens. In fact, small minorities are those who need constitutional protection the most.
However, this ‘copy and paste’ method of legislating ran into a momentary snag in Texas. In an effort to “Save Chick-fil-A,” which was barred from opening a location at the San Antonio airport over donations to anti-marriage equality groups, a bill was introduced in the state senate to forbid the government from taking, “...any adverse action against any person based wholly or partly on a person’s belief or action in accordance with the person’s sincerely held religious belief or moral conviction...” Of course, one could easily argue that denying a contract to a company which holds a moral conviction regarding the human rights of Palestinians could have been proscribed, contradicting the Texas anti-boycott law.
Which is likely at least partly why the language that was ultimately passed by both the Texas House and Senate removes any mention of “moral conviction” and forbids adverse actions “based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.” While the bill awaits the signature of Governor Greg Abbott, the passage of this “Save Chick-fil-A” bill would signal that marriage equality and advocacy for rights in Palestine are disfavored by the state and that the government gets to pick and choose which human rights Texans can support.
By embracing the ‘copy and paste’ legislation pushed by out-of-state activists, Texas is sending mixed signals regarding whether the government has a role directing contract procurement based on political, moral, or religious convictions. But Texas is not alone: at present, the Lone Star state is one of at least 27 states which have passed largely identical laws to limit the use of economic boycotts, ultimately aimed at stifling criticism of the policies of the Israeli government. Moving forward, the Texas state government should reject attempts at copycat legislation which facially violates constitutionally-protected political expression.