State lawmakers are free to deny government contracts to firms that won’t do business with Israel or companies that operate there, an attorney for the state told a federal judge Wednesday.
Assistant Attorney General Drew Ensign did not dispute that the prime sponsor of the 2016 law admitted at the time that the legislation has some political basis. David Gowan, who was House speaker at the time, said he wanted to use the economic strength of the state to undermine the international Boycott, Divest and Sanctions movement which seeks to pressure Israel to change its policies, particularly as to Jewish settlements on the West Bank.
Ensign argued, however, the measure is, at its heart, a law against discrimination.
He said it’s no different to federal and state policies that prohibit companies that contract with the state from discriminating on the basis of sex, race, religion or national origin. In this case, he told Judge Diane Humetewa, boycotts discriminate on the basis of both religion and national origin.
But Brian Hauss, an attorney with the American Civil Liberties Union, said this is really a political issue.
“This is not about discrimination,” he said. “It’s about inherently expressive conduct,” meaning the ability of individuals to exercise their First Amendment right to boycott those firms whose policies they find offensive.
Hauss argued the law forces those who want to do business with state or local governments to sign an affidavit swearing they are not involved in boycotts, forcing them to choose between their own political beliefs about Middle East politics and being able to provide goods or services to state and local government.
At the center of the legal fight is Flagstaff attorney Mik Jordahl whose law firm has had a contract to provide legal services to the Coconino County jail district.
Jordahl, who supports the BDS movement, refused to sign the required certification, saying he wants his law firm to not only be able to support groups that demand Israel withdraw from the West Bank but also refuse to purchase office equipment from Hewlett Packard because that company provides information-technology services used by Israeli security at checkpoints throughout the West Bank.
The result is he is no longer being paid for his services. So Jordahl, represented by the ACLU, wants Humetewa to bar the state from enforcing the requirement to sign the certification.
Ensign told Humetewa she should throw out the lawsuit, saying there’s no evidence that Jordahl would violate the law if he signed the certification and still refused to buy HP equipment.
The judge said the problem that provides no real guidance to people asked to sign the certification whether what they are doing — or plan to do — would violate the law.
“How do they know?” she asked.
“They would know very readily,” Ensign responded. Anyway, he said, they could ask his boss, Attorney General Mark Brnovich, for an opinion.
Hauss, however, said individuals and companies should not be put in the position of having to guess whether their activities would be legal.
Anyway, he told Humetewa, the law is even more basic than that, mandating that people sign a form as a precondition of getting a government contract. Hauss said that is impermissible, even if the would-be contractor is not engaging in a boycott of Israel, comparing it to what he said is an illegal requirement to sign a “loyalty oath” to work for the state.
“One doesn’t need to be a communist or subversive to object to a loyalty oath,” he said.
Ensign told the judge that voiding the law would have “grave and enormous implications,” undermining the ability of the state to prevent discrimination. And he said the state has a “compelling interest” in the issue, saying the statute is designed to prevent subsidizing firms that boycott Israel with public dollars.
That, however, still leaves the question of whether the law is aimed at discrimination based on religion or national origin, which might be legally defensible, or simply targets companies that Humetewa said may simply be “engaged in politically motivated acts,” things that could violate First Amendment rights of those who choose to boycott.
Gowan testified at the time he wanted to use the economic strength of the state to undermine the BDS movement which he called “anti Semitic.” He also said the legislation shows Arizona is supportive of Israel, “it’s strongest ally in the Middle East.”
But even Brnovich himself, in an interview with Capitol Media Services, acknowledged a political basis for the statute.
“No nation has been under attack more than Israel has and has had less help from any other country in the world as Israel has had,” he said. “I think the message the Legislature wanted to send was, ‘we’re going to stand with Israel.”
And something else got the judge’s attention. She noted that Ensign is defending the law as a bar against discrimination but applies only to Israel and the companies that do business there.
But Ensign argued that selective approach does not invalidate the law, pointing out that laws against age discrimination apply only to those who are older than 40.
The judge gave no indication when she will rule.