AirBNB’s Jewish boycott: Discriminating against a ‘suspect class’

Airbnb’s decision to exclude Jewish housing on the West Bank from its listings, whether coerced, malevolent, misinformed, or some combination of the three, is the type of discriminatory activity that the U.S. Supreme Court ruled in 1938 was subject to exacting review and serious skepticism.

In its decision in Carolene Products Co., the Supreme Court noted, in what is referred to as the most famous footnote in Constitutional law, that discriminatory enactments against historically disfavored groups – racial, religious and ethnic minorities – would be presumptively illegal under the Constitution’s Equal Protection Clause.  When it came to traditional targets of prejudice, referred to as “suspect classes,” the Court rejected the standard that state laws were presumptively valid and, instead, required that “suspect classifications” be subject to “strict scrutiny” and struck down unless the government could prove a compelling justification for adopting the discriminatory measures.

The Supreme Court’s adoption of strict scrutiny to suspect classifications reflected the unique ability of Americans to be honest with themselves. American history, both before and after the Civil War, is replete with discriminatory laws and policies against disfavored groups, typically based on contrived or erroneous rationalizations.  In its famous footnote in Carolene Products, the Supreme Court said, in effect, that when the government targets traditional victims of discrimination for special treatment, we simply don’t trust we’re acting fairly.  To protect against inherent biases, we’ll turn the burden of proof upside down and force the government to justify the discriminatory measures.  The practical effect has been that suspect classifications almost never survive strict scrutiny.

While the legal doctrine of strict scrutiny doesn’t apply to private companies like Airbnb and its West Bank Jewish boycott, Airbnb would have been well served by adopting voluntarily the burden-shifting formulation before diving into the Israel-Palestinian conflict.  Despite having over four million listings in over 190 countries around the world, including intense conflict zones, Airbnb has singled out 200 Jewish-owned homes in the West Bank for discriminatory treatment.  Analogized to the Carolene Products formulation, Airbnb has adopted a narrowly focused discriminatory rule against a suspect class – Jews – against whom there is a long and painful history of boycotts and discrimination.

Airbnb’s proffered justification for discriminating against West Bank Jews is that settlements are at “the core of the dispute between Israelis and Palestinians.”  This excuse could never survive strict scrutiny.  While settlements are certainly a serious issue, they cannot, upon careful examination, justify Airbnb’s boycott.

Had it truly scrutinized the boycott plan, Airbnb would have learned not only that the conflict long predates the settlement movement, but in 2000 and 2008 Israel offered to create a Palestinian state on over 95% of the West Bank, with East Jerusalem as the Palestinian capital. These peace plans would have resolved the settlement issue, along with the other points of conflict.  The Palestinian leaders, Yasser Arafat and then Mahmoud Abbas, nonetheless walked away without ever making counter offers.  If settlements were truly at the “core” of the conflict, it is inconceivable that they would have done that. What they have done, however, is to make clear that if a Palestinian state is formed on the West Bank, no Jews will be permitted to live there.

In adopting the boycott, it is doubtful that Airbnb came to grips with President Clinton’s telling rebuke of Yasser Arafat in connection with Clinton’s futile peace initiative in 2000: “I’m a colossal failure and you made me one.”

The ‘core’ roadblocks to peace have nothing to do with settlements.

In addition to walking away from end-of-conflict opportunities, the Palestinian leadership has otherwise made clear, at least to those who are really listening, that settlements are not the “core” issue.  Abbas incites violence against Israelis, vowing “to my dying day” to continue paying stipends to terrorists and their families.  The Palestinian leader refuses to acknowledge the Jewish character of Israel and insists that Palestinian refugees and over five million of their descendants have a “personal” right to “return” to pre-1967 Israel, thereby eliminating Israel as the Jewish homeland.

These are the “core” roadblocks to peace and have nothing to do with settlements.

Nevertheless, for purposes of determining whether Airbnb’s proffered justification for its boycott of Jewish homes on the West Bank could survive strict scrutiny, it didn’t have to decide the essential cause of the conflict.  It needed to take account of the sordid history of anti-Jewish discrimination and examine carefully whether the anti-Israel talking points pressed upon it by the Palestinians and their advocates could justify carving out an infinitesimally small portion of its global inventory for boycott.  It failed to do that and, indeed, there is no indication that it consulted with Israeli officials or advocates in adopting its new discriminatory policy.

It’s not too late for a do over.

Starting from the realization Jews are a paradigm suspect class, particularly when it comes to boycotts, Airbnb should reconsider whether there is a compelling justification for delisting 200 West Bank Jewish homes, alone among its millions of listings around the world. In doing so it would confront the voluminous evidence of Palestinian rejectionism and come to grips with a most poignant question: How could Airbnb justify the boycott of Jewish homes on the West Bank while continuing to list homes in places such as Russian-occupied Ukraine, Chinese-occupied Tibet, Turkish-occupied Cyprus and Moroccan-occupied Western Sahara? It couldn’t.

Ultimately, by revisiting and reversing its West Bank Jewish boycott, Airbnb would not only correct its own missteps, it might set a standard for other commercial and religious groups in determining whether to engage in blatant discrimination.

About the Author
Gregg M. Mashberg is a lawyer in private practice in New York City, and has been involved in Israel advocacy
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