Are anti BDS laws in the USA violating the doctrine of separation of church and state and/or freedom to assemble?

Question

Many state and federal lawmakers support anti BDS laws. BDS is a movement about boycotting Israel for alleged human rights abuses. (It stands for Boycott Divestment and Sanctions.)

A federal court has already ruled that one particular such law tramples on the freedom of speech, as guaranteed by the 1st amendment.

The US constitution makes it very clear that religion and government are not allowed to mix directly. In practice, this means the government cannot "make a law respecting an establishment of religion".

There have been courts that struck these laws down. Are these laws violating the First Amendment the way that they are written?

Answer 1

An anti-BDS law may be invalid in some circumstances, but this has nothing to do with the establishment clause of the First Amendment.

Boycotting or not boycotting Israel is not an inherently religious question and isn't justified as such.

More often the issues will be pre-emption by a higher level of government's laws, lack of legal authority to enact such a law under an authorizing statute, or possible the "dormant commerce clause."

The linked material in the OP refers to the First Amendment freedom of association and possible the First Amendment freedom to petition, not to the establishment clause.

Answer 2

First right from the get go, the court says explicitly "The First Amendment’s protection of boycotts, however, is not unlimited."

That is to say it's going to get nuanced...

In a footnote of the decision you'll find this,

Because “religion” is mentioned only once, and “national origin” and “nationality” are used iterchangeably, the Court construes Texas’s claim to be that H.B. 89 is designed to prevent discrimination on the basis of national origin

The court explains

Both interests [“in prohibiting national-origin discrimination,” and in “prohibiting state contractors from violating anti-discrimination principles.”] rely on Texas’s argument that H.B. 89 is a “standard anti-discrimination measure” prohibiting discrimination on the basis of national origin.

They conclude, "it is not." Having rejected this (for many reasons) they conclude it's a "protected expression-political boycott" and thus free speech,

Plaintiffs have demonstrated that H.B. 89 infringes their First Amendment right to engage in protected expression—political boycotts based on a contentious public issue—resting on “the highest rung of the hierarchy of First Amendment values.” Claiborne, 458 U.S. at 913 (quoting Carey, 447 U.S. at 467).

So what's interesting here is that this can go on for quite some time, and likely will because a boycott is not "free speech" if done for reasons that discriminate on national origins. Other states can presumably muster different reasons and implementations to protect an apartheid regime from economic boycott.

So in short,

• They did not find this to be a violation of the establishment clause
• They did not find this to be a violation of freedom to assembly
• Having rejected the two claims by Texas to establish BDS as discriminatory, they found this specific case to be "protected expression-political boycott."

Answer 3

A boycott of any US company (or US entity doing any kind of commerce) in which one involves others, or is a non-active agent ("supporter"), is illegal in the US by federal law. Period, no question of there being any connection to religious reasons.

Admittedly, it is winked at and certain people have made fortunes organizing boycotts and threatening to do so. (Rev. Jesse Jackson made as much as $70,000,000 one year in donations after "exploring" the organization of such boycotts against the donating companies whom he then... felt were not deserving of boycotting.) But it is still against explicit federal trade law. And certainly, no US Attorney ever brought a case against those boycotting US companies that did business with South Africa so... "winked at" seems to be the rule to a jaded soul like mine.

Boycotting Israel is illegal by federal law in any contract that crosses US borders. That means any importing or exporting along with anything else that fits. I said it that way because an exporter, for example, like my company is breaking federal law if it even accepts a contract that has hidden away in boilerplate the requirement to not do business with Israel. (So we don't do business with Muslim countries. Period. Do not seek their business, do not respond to the VERY occasional inquiry. Because they are often REQUIRED by their own laws to insert such clauses into every contract. They have to do it by law and we cannot just nod and ignore it, by law. So we have no basis for business. Obviously, not all do of course, and some lie, of course, about the "it's our law, sorry" but we don't care to be ground between either government or polity.)

In neither of the cases above is there any religious underpinning, except perhaps in some very indirect way. It's simply one government demanding its citizens do not undermine its foreign policies goals and obligations for a pile of cash.

So one or the other kind of situation would almost certainly cover any "anti-BDS" law you are aware of. Invalidating it. No religious aspect involved in the invalidation.

So it is hard to see why a Constitutional aspect need arise. Though it is definitely an interesting idea. The problem with it though is that the Constitution doesn't have any problem with support of religion in general, just in "establishing" a particular one. And I don't see how having or not having "anti-BDS" laws would "establish" any particular religion.