Explanation

Our Diocesan Convention in November 2019 unanimously adopted a similar resolution, G-182. This time Convention is being asked to call on the next General Convention to consider a resolution on Freedom of Speech and the Right to Boycott.

First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Constitutional norms affirming separation of church and state preclude our involvement in partisan politics, yet as Christians we are called to witness on behalf of the most vulnerable. The First Amendment guarantees the free exercise of religion, freedom to express our views and act in accord with our conscience, and the right to petition government about perceived injustices. Anti-boycott measures threaten these freedoms. The infringement of one liberty facilitates an assault on others.

Boycotts are a form of expression protected by the First Amendment as Supreme Court decisions have declared. In NAACP v. Claiborne Hardware (1982) the Court ruled that activity to protest injustice is protected speech. In O'Hare Truck Services v. City of Northlake (1995) the Court also ruled that government is constitutionally prohibited from making political beliefs a condition for receiving public contracts. Boycotts as nonviolent political action to oppose injustice have an honorable history in the United States, including the pre-Revolutionary boycott of tea, the 1955-56 Montgomery Bus Boycott, the boycott of South African apartheid, and the recent boycott of North Carolina opposing its anti-LGBT legislation. The Episcopal Church USA supported divestment and sanctioning of South African apartheid. (See 1985-D073, 1988-B050 and B052, 1991 Al 54 at https://www.episcopalarchives.org/e-archives/acts/) Anti­-boycott measures seek to prevent Americans from acting nonviolently in accord with their beliefs.

The Call for Boycott, Divestment, and Sanctions issued by Palestinian civil society in 2005 launched a nonviolent movement that proposes economic measures to pressure Israel to comply with international law, respect human rights, and end the occupation of Palestinian lands deemed illegal by the vast majority of nations worldwide. (https://bdsmovement.net/call ) The U.S. has signed the Geneva Conventions defining the laws of occupation and the Universal Declaration of Human Rights. Anti-BDS legislation sets up a conflict between U.S. and international law.

In response to the growing movement for Palestinian human rights and self-determination, over 100 measures targeting supporters of Palestinian rights have been introduced in state and local legislatures and in the U.S. Congress. To date thirty states have enacted anti-boycott measures, including five governors' executive orders. In May 2015 the 99th General Assembly of the State of Illinois passed SB 1761, which prevents Illinois pension funds from investing in foreign firms that participate in boycotts of Israel and punishes international companies that boycott goods from Israeli settlements in occupied territories. (https://www.ilga.gov/legislation/BillStatus.asp?DocNum=1761&GAID=13&DocTypeID=SB&SessionID=88&GA=99/7).

At the federal level the most chilling development has been the December 2019 Executive Order 13899 titled Combating Anti-Semitism. (https://www.whitehouse.gov/presidential­ actions/executive-order-combating-anti-semitism/) This order requires that Government agencies, including the Department of Education with its significant authority over educational institutions, in applying Title VI of the Civil Rights Act use a distorted definition of antisemitism that essentially conflates it with criticism of Israel. Since issuance the Order has been used in multiple cases as a tool to justify federal investigations targeting campus advocacy for Palestinian rights. Using this same definition of antisemitism, some local jurisdictions have proposed or enacted legislation that would criminalize speech critical of lsrael by treating it as evidence of a hate crime. These laws radically increase the legal consequences of criticizing Israeli treatment of Palestinians.

Meanwhile, H.R. 5595, (https://www.congress.gov/bill/116th-congress/house-bill/5595) the latest version of the Israel Anti-Boycott Act, was introduced in January 2020 and has still not passed, largely because of recognition that it flouts First Amendment protections. Prison terms have been removed as sanctions, but civil fines of up to $300,000 and criminal sanctions of up to $1 million are still prescribed for entities that support BDS.

 Opponents of BDS contend that it is antisemitic, whereas a reading of the Call demonstrates that it is about ending the denial of Palestinian rights. The accusation of antisemitism is used to censor debate. It conflates criticism of state policies with discrimination against a people and deflects attention from genuine concerns with rising antisemitism fueled by right-wing extremism. In 1991 with Resolution D122, the Episcopal Church affirmed that legitimate criticism of lsraeli government policies and actions is not antisemitic. (https://www.episcopalarchives.org/e-archives/acts/)

On April 2, 2014 Archbishop Desmond Tutu issued a statement in support of BDS part of which read:

In South Africa, we could not have achieved our democracy without the help of people around the world,  who through the use of non-violent means, such as boycotts and divestment, encouraged their governments and other corporate actors to reverse decades ­long support for the Apartheid regime. My conscience compels me to stand with the Palestinians as they seek to use the same tactic of non-violence to further their efforts to end the oppression associated with the Israeli Occupation.

(https://peaceandjustice.org/?s=statement+from+archbishop+desmond+tutu)

Along with several other organizations committed to defending civil liberties, the American Civil Liberties Union has actively opposed anti-BDS legislation.

(https://www.aclu.org/blog/free-speech/congress-laws-suppressing-boycotts-israel-are-unconstitutional-sincerely-three)

In January 2018 the ACLU won an early victory in a lawsuit affirming that a Kansas law requiring a public school educator to certify that she would not boycott Israel was a violation of her First Amendment rights. Similarly, in September 2018 a federal court blocked an Arizona law that required state contractors to certify that they would not boycott Israel. Adjudication continues and may require a Supreme Court ruling.

Whatever our stance on a particular boycott, we must defend the First Amendment right to speak and to act nonviolently in accord with our conscience.

Adoption of this resolution is not expected to require expenditures that would have an impact on the Episcopal Church budget.