Maryland Gov. Larry Hogan’s executive order requiring bidders on state contracts to forswear boycotting Israel reflects the early Cold War loyalty oaths forswearing Communism that the U.S. Supreme Court has deemed unconstitutional, a software engineer and would-be bidder who supports Israeli boycotts told a federal appeals court this month.
Saqib Ali’s filing with the 4th U.S. Circuit Court of Appeals was the latest salvo in his challenge to the order as violating his First Amendment right to speak out and peacefully act against what he considers Israel’s mistreatment of Palestinians.
Ali — a supporter of the boycott, divest and sanction Israel movement, or BDS – is appealing a federal district judge’s ruling last year that he lacks standing to challenge the order because it applies to companies — not individuals — and his firm has not applied for a state contract.
In papers filed with the 4th Circuit, Ali stated through counsel that an application from him would inevitably be rejected in light of the order that he said unconstitutionally demands loyalty to Israel much as the Cold War pledges required denunciations of Communism.
The Supreme Court struck down the anti-Communism oaths – required for employment by many U.S. states and localities in the 1950s – in its 1961 decision in Cramp v. Board of Public Instruction of Orange County, Fla.
“Yes, the Cramp oaths – which, like here, targeted vague actions, not beliefs – (are) not exactly the same as the oath here,” wrote Ali’s attorneys from the Council on American-Islamic Relations Legal Defense Fund. “The supposed threat of Communism is different than the supposed threat of BDS. But the crux is the same – to punish the disfavored group’s supporters by making them ineligible for certain government jobs or contracts.”
Ali’s most recent filing followed Hogan’s written argument to the 4th Circuit that U.S. District Judge Catherine C. Blake correctly held that Ali lacks standing to challenge the order “because he had not submitted a bid, much less had one rejected.”
Hogan, represented by the Maryland attorney general’s office, has also defended the order as narrowly focused on ensuring that companies bidding on state contracts comport with the government’s interest in promoting tolerance of minority groups and not engage in national origin discrimination.
“The executive order … does not prohibit or punish anti-Israel boycotts generally; it places no limits on how business entities choose to act in the private marketplace,” Assistant Maryland Attorney General Adam D. Snyder wrote on Hogan’s behalf in a district court filing. “The executive order makes clear that Maryland will not allow itself, through its purchasing decisions, to subsidize and become a passive participant in a form of national-origin discrimination that offends longstanding Maryland public policy.”
Ali, a former Maryland state delegate, told the 4th Circuit that Hogan’s defense is belied by the order’s singular focus on Israel as deserving protection from discrimination.
“And therein lies the rub,” Ali’s attorneys wrote. “There is no vague certification or pledge that one must not discriminate against the French, or the Nepalese, or the Canadians. Instead, the certification only elicits promises requiring one to not participate in the BDS movement.”
Ali, a North Potomac Democrat, served in the House of Delegates from 2007 to 2011 and is running to regain a seat in next year’s election. In his lawsuit challenging the executive order, Ali said he supports boycotting those who “contribute to the oppression of Palestinians.”
Hogan issued the executive order in 2017 after the General Assembly failed to pass several bills in opposition to the boycott, divest and sanction Israel movement.
Supporters of the BDS movement generally oppose what they regard as Israel’s mistreatment of Palestinians. BDS has drawn fire from a large segment of the Jewish community that believes support for the movement is rooted in antisemitism and not opposition to Israeli policy.
The 4th Circuit has not stated when it will rule on Ali’s appeal. The case is docketed at the 4th Circuit as Saqib Ali v. Lawrence Hogan Jr., No. 20-2266.