CHARLESTON — West Virginia Attorney General Patrick Morrisey recently joined a nine-state coalition in urging a federal appeals court to protect the right of individual states to ensure companies that receive a government contract do not discriminate.
The amicus brief, filed last week in the Ninth Circuit Court of Appeals, supports immediate enforcement of an Arizona law that prohibits its entities from entering into contracts with businesses that boycott Israel. The Arizona statute protects the state’s right not to do business with companies that discriminate on the basis of nationality and national origin.
The coalition argues an appeals court ruling that protects the Arizona law would also support similar, anti-discrimination laws in other states.
“Individual states, in protecting their best interests, have wide latitude to impose restrictions on government contracts,” Morrisey said. “The ability to implement such restrictions can have great success in limiting discrimination.”
The use of conduct-based restrictions in state contracts can protect the contracting process itself and serve to implement policy choices by the enacting state. As such, states have a fundamental and compelling interest in preventing discriminatory conduct on the part of companies with which the state contracts.
The coalition also points to prior U.S. Supreme Court rulings, which have repeatedly recognized that states have legitimate interest in avoiding the appearance and actual subsidizing of a private entity’s discriminatory policies with state funds.
Such discrimination can come at a cost. For instance, the coalition’s brief estimates that one anti-Israel boycott costs Israel’s economy more than $2 billion per year. Such conduct has the potential to severely harm the Israeli economy and livelihoods of ordinary Israelis, and threatens to undermine Israel’s national security.
West Virginia joined the Missouri-led brief with Arkansas, Georgia, Indiana, Kansas, Nevada, Ohio and Texas.
Ninth Circuit Court of Appeals case number 18-16896