As more people become fully vaccinated, most states have loosened up their mask mandates. In my own state of Colorado, most businesses and restaurants I’ve been to now have signs saying that masks are optional for vaccinated patrons, although still requested for those not yet fully vaccinated. (Most of those places do not check vaccination status, but leave it up to the honor system. I do know of a few private venues in Denver which do require proof of vaccination before entry.)
Overall, I’m satisfied with that approach. In general, I believe that private establishments should have the right to set rules for entry onto their own property as they see fit, particularly when it affects the health and safety of staff and other customers. Just as a business or restaurant can require wearing shoes or a shirt as a condition for entry, they should be allowed to require that patrons provide proof of vaccination (or wear a mask) as a condition for entry.
However, not every state takes the same approach as Colorado. Several states have passed laws or issued executive orders forbidding private businesses from asking for vaccination status. These states include Alabama, Florida, Iowa, and Texas.
Alabama’s law states that “an entity or individual doing business in this state may not refuse to provide any goods or services, or refuse to allow admission, to a customer based on the customer’s immunization status or lack of documentation that the customer has received an immunization.”
Similarly, Texas Governor Greg Abbott declared earlier in June 2021 that he was “signing a law today that prohibits any business operating in Texas from requiring vaccine passports or any vaccine information.”
Curiously, these restrictions have been enacted by Republican governors and/or state legislatures. Under most circumstances, I would have expected Republicans to favor protecting the property rights of private businesses. But the pandemic has turned much conventional political wisdom upside down.
I contacted Tim Sandefur, Vice President for Litigation at the Goldwater Institute, for his opinion. He told me:
“It is obviously wrong for the government to prohibit private property owners from deciding for themselves whether or not to set the conditions on which people can enter their property. It’s also misguided, because we usually expect private enterprise to fashion new and innovative ways of dealing with challenges — and letting them make their own decisions in this regard. If some businesses want to exclude anyone who isn’t vaccinated, and another business is fine with letting unvaccinated people come onto their property, then let them compete — and whichever business makes the tradeoff that customers are happy with will ultimately win. When the government comes in and imposes mandates, you end up hindering innovation and discovery — as well as violating the constitutional rights of business and property owners.” (Sandefur’s comments have been edited slightly for clarity and length.)
I agree with Sandefur, and I hope the state governments that have imposed such restrictions on businesses will reconsider.
I also note that Alaska — also run by a Republican governor — has taken a different approach. Alaska Governor Mike Dunleavy recently issued an executive order declaring that state government offices will not “require any person to produce their personal vaccine history… in order to travel to, or around, Alaska.” But he also explicitly affirmed that the state will not “infringe on the rights of private businesses” in this regard. I like the Alaskan law much better than the laws in Texas or Alabama.
I don’t know how things will unfold this year, on either the legal or medical fronts. But as someone interested in both individual freedom and property rights, I intend to keep an eye on developments in Texas, Alabama, Florida, and Iowa.
(Tim Sandefur also told me that if any business owners in Texas are interested in challenging their state law in court, they should contact him at the Goldwater Institute.)