By Deborah Gastfreund Schuss
A legislative hearing at the Massachusetts State House last week for a pair of anti-discrimination bills drew more than 500 people and seven hours of nonstop testimony. It was “rare” in terms of duration and attendance for only one piece of legislation, according to Representative Paul McMurtry, a legislative cosponsor who said he “was surprised by the controversy” the proposed law generated.
The bills, filed in the House and Senate, would prohibit Massachusetts from doing business amounting to more than $10,000 with anyone who discriminates based on “race, color, creed, religion, sex, national origin, gender identity or sexual orientation.”
While the wording makes no mention of Israel, the legislation if enacted would prohibit state contracts with anyone who discriminates on the basis of Israeli national origin. As supporters of the Boycott, Divestment, Sanctions, or BDS, movement spoke out against the bills at the hearing, they excoriated only Israel in lambasting the proposed legislation as an infringement of their right to boycott.
Members of the Joint Committee on State Administration and Regulatory Oversight listened to some six dozen testimonies, about evenly split between those for and against the proposed legislation.
Eric Berke told the committee he grew up on Boston’s North Shore, where his family was not allowed to live in certain parts of town because they are Jewish. “However, discrimination has shifted from blatant actions, like denying people access to housing, to more insidious forms like BDS that disingenuously hides its discrimination against Jews behind the cloak of ‘free speech,’ ” he said. “I feel that we should not miss this opportunity to strike a blow against forces that would want discriminatory behavior to continue.”
John Roberts, retired executive director of the Massachusetts Chapter of the American Civil Liberties Union, spoke against the bills and said BDS does not target people based on national origin, ethnicity or religion, but is based on the actions of the Israeli government, which he said makes its boycott constitutional.
“Regardless of your position on the BDS movement,” he said, “the real problem here is that this legislation is willing to compromise long-held protected first-amendment principles for short-term political gains for a foreign government.”
Another opponent told of visiting with a delegation a Palestinian family in Hebron, whose home and grapevine she said were located “in close proximity to a Jewish settlement.” She recounted for the committee the landowner’s assertion that “You can’t eat the grapes; they were poisoned by the settlers.”
Several objecting to the bill echoed a speaker who said, “The bill under consideration is a stealth attack by the Israeli government and its powerful… lobbyists and organizations.”
Charges of anti-Semitism Alex Koifman, who testified in favor of the bills on behalf of the Boston-based Russian Jewish Community Foundation, said those statements mirror comments directed at him and other Jews growing up in the former Soviet Union.
“The claim that I, as a speaker, talking about my experiences in the former Soviet Union somehow makes me an agent of the Israeli government is absolutely libelous, and it’s a pure lie,” Koifman said. “Second, that Israel poisons grapes is an old canard —Jews always poison something.
“And claiming the Massachusetts legislature is willing to compromise something on behalf of a foreign government not only attacks our lawmakers but also attacks me as a citizen favoring this anti-discrimination bill, that my loyalty is not to the United States or to the state of Massachusetts but to some foreign government. These are exactly the same things I heard in the Soviet Union, from the newspapers, from the regular street anti-Semites. That was their favorite line of attack.”
Attorneys currently representing the Massachusetts ACLU spoke in opposition to the proposed legislation, because they say it will have a chilling effect on free speech.
“Motive here is very important,” said deputy legal director Sarah Wunsch, noting that a legislative sponsor had stated the legislation would specifically target the BDS movement. “Proponents of it really do intend to evade the very important first-amendment province of the right to peacefully boycott.”
But David Rozenson, a lawyer and ACLU member who spoke in favor of the legislation, disagreed. “What I find particularly irksome is the notion that this legislation will have a chilling effect on speech,” he said. “All anti-discrimination legislation has a chilling effect on speech. That doesn’t stop us from passing those laws and enforcing them…. If it’s harder to express racist opinions because there are anti-discrimination laws on the basis of race, we say, ‘So be it.’ You are still free under the first amendment to express your racist opinions. One interest outweighs the other.”
He said he was disappointed that those who typically battle discrimination now object to the proposed legislation. “A lot of opponents of this bill and I have fought together to fight discrimination on the basis of race, on the basis of gender, gender identity, and sexual preference,” said Rozenson, whose father’s business in the U.S. was on the Arab League’s boycott list some 50 years ago. “We’ve stood together so many times, and so I find it personally hurtful as an Israeli and a Jew that they are opposing this bill to reserve the right to discriminate against people like me.”
Speech distinguished from conductThe legislation would not affect anyone’s right to boycott, proponents said at the hearing, but conditions doing business with the state on compliance with anti-discrimination laws.
William Jacobson, a Cornell University Law School clinical professor and expert on BDS, said such legislation is similar to the federal Solomon Amendment, which conditioned aid to universities on providing equal access to military recruiters, a requirement upheld by the U.S. Supreme Court in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
In that case, Jacobson said, “the Supreme Court unanimously held that there was no violation of free speech and association rights from conditioning federal aid on non-discrimination.” Jacobson pointed to the Supreme Court’s finding that “law schools remain free under the statute to express whatever views they may …. [T]he Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say. ”
Louise Wolfe, another attorney who attended the hearing, said the legislation also would protect refugees in the United States and their right to work.
“The position against this bill is a position saying that you can indulge your hatred against people because of race, religion, or national origin and still profit off the taxpayers of Massachusetts,” said Wolfe, whose legal experience has included constitutional and human-rights issues. “This is preventing people from earning their livelihood honestly and contributing to the well-being of the state of Massachusetts just because of where they came from or what their citizenship is, neither of which they had any initial control over. So it’s punishing people without knowing anything about their beliefs or actions.”
The legislation, called “An Act prohibiting discrimination in state contracts,”
During the hearing, Howitt displayed an enlargement of a postcard he received at his home that contained a “Boycott, Divestment, Sanctions” logo as the return address and included a cartoon with an anti-Semitic image. McMurtry said he received the same mailing.
“Sending and trying to intimidate a legislator based on the fact that they filed a bill is unacceptable, period,” Howitt said.
Twenty-two states have enacted similar anti-discrimination laws. In neighboring Rhode Island, a bill was signed into law last year just four months after Representative Mia Ackerman, a Democrat and deputy majority leader, introduced it.
Effect on business communityWhile several at the hearing questioned the need for legislation beyond Massachusetts’ current statutes, others said the state’s anti-discrimination laws address employment, housing and public accommodations, but not business partnerships, as the proposed legislation does.
Dr. Michael Kauffman, CEO of the Massachusetts-based Karyopharm Therapeutics, testified about his concern regarding the company’s viability in the state, should the proposed legislation fail to become law. Karyopharm develops new treatment for fatal cancers and conducts clinical trials throughout Europe, Israel, and the U.S., including in Boston hospitals. The company also has an office in Munich and 10 employees in Israel.
Kauffman and his wife Dr. Sharon Shacham, a native of Israel and the company’s founder, already have experienced discrimination in Europe as a result of her national origin, which the proposed legislation is meant to address here, he said.
He told committee members, “Discrimination against our company will directly harm our ability to attract investors and new employees, and may require us to move our offices to more friendly communities. This will not only result in loss of Massachusetts jobs, but will delay our ability to bring our innovative cancer medicines to cancer patients in Massachusetts and beyond.”
“We don’t want to get into political fights about whether our drug should go to people because of their physician’s political views,” Kauffman said later.
He said he was surprised committee members several times asked the bill’s proponents for evidence discrimination already has occurred. “It was quite odd, especially in Massachusetts, to hear such a question,” he said. “It’s almost like saying you would only outlaw murder after someone was murdered. It was just a bit strange to me.”
According to Creem, the Senate bill’s sponsor, the 16-member Joint Committee on State Administration and Regulatory Oversight has until Feb. 7, 2018, to act on this legislation. If the committee sends the bills "to study," no further action would be taken this session, which ends July 31, 2018. The next session is sworn in Jan. 2, 2019.
Wolfe, the attorney, said she hopes the committee will move the bills forward.
“Anytime a bill is killed in committee and not submitted for a vote by the overall legislature, the few people on the committee have succeeded in depriving the people of the state as a whole of having their representatives consider the matter and make a principled decision about it,” she said. “It’s more democratic to allow the legislature as a whole to vote on this.”