A legal argument that BDS is effectively discrimination against Jews

Eugene Kontorovich, testifying before Congress this week in the hearing “Confronting the Rise in Anti-Semitic Domestic Terrorism”, submitted his statement that included a legal argument that BDS is discriminatory against Jews that I had never heard before.

It makes no difference that these calls to boycott are aimed at Israel, rather than at Jews per se. Israel is the largest Jewish community in the world and is home to the plurality—and soon the majority—of the world’s Jews. Refusals to deal that target Israel alone and not any other country offer a clear proxy for engaging in anti-Semitism under the cloak of political legitimacy. Partial boycotts are boycotts. Furthermore, discrimination need not be 100% congruent with the targeted class to be discrimination. Anti-discrimination laws make it clear that the use of proxies for race, sexual orientation, and so forth can be discriminatory.

 His footnote points to Pacific Shores Properties, LLC v. City of Newport Beach 

Proxy discrimination is a form of facial discrimination. It arises when the defendant enacts a law or policy that treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is, constructively, facial discrimination against the disfavored group. For example, discriminating against individuals with gray hair is a proxy for age discrimination because “the ‘fit’ between age and gray hair is sufficiently close.” 

Some young people have grey hair, many older people do not. But to say that you are only discriminating against hair color and not age is obviously disingenuous because there is an obvious correlation between the two. Similarly, boycotting Israel, as the only Jewish state and the only state with a majority Jewish population, especially when other states whose egregious human rights violations do not attract any sort of boycott, is in effect antisemitic.

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