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A common argument from elected officials who have banned local governments and public schools from imposing masking or vaccination requirements is that such mandate (non-mandate, if you will) bans are necessary to safeguard individual “freedom” during this Covid -19 Pandemic Protect.
What these politicians are asking for is not the right to make personal decisions; it is the right to make personal choices that they agree to.
Using the same script, Texas Governor Greg Abbott, Georgia Governor Brian Kemp, and Florida Governor Ron DeSantis have emphasized “personal responsibility” as the animating principle behind their statewide initiatives. To quote Abbott’s spokesman: “Every Texan has the right to decide for himself and his children whether to wear masks, open his shops or get vaccinated.”
But recent efforts to prevent private companies from exercising this very right to vote underscore that this oft-repeated mantra is a complete disappointment – and that these politicians do not have the right to make personal decisions; it is the right to make personal choices that they agree to. Such measures may well be legal, but we should not confuse them with an analytically coherent understanding of freedom.
Start in Georgia, where Kemp signed an executive order on Thursday preventing local officials from requiring corporations to issue Covid-19-related mandates or other restrictions. Like Abbott’s ban on masking requirements in public schools, Georgia’s executive decree removes the power of local government officials to respond to the vastly different circumstances in different parts of the state – even in jurisdictions that are largely in favor of restrictions. Freedom in this universe is defined by the nationally elected officials, not those who are more likely to be elected locally.
Even worse is a recent episode in Texas where two popular Austin restaurants announced plans this month to require proof of vaccination before customers can sit inside. Both restaurants have outdoor dining areas where they did not want to require such proof. The Texas Alcoholic Beverage Commission threatened restaurants with the loss of their liquor licenses (a move that would effectively have put them out of business).
Legally, the authority of the state to issue such a threat is not a narrow issue; Texas law in June expressly forbade companies from imposing vaccination requirements. The specific ban on compulsory vaccination therefore appears to have a solid legal basis for the sole reason that it was expressly decided by the legislature. Florida passed a similar bill, but Abbott and Kemp’s broader struggle could be legally vulnerable as, in general, bans on local restrictions aren’t specifically authorized by state law – litigation against both governors is pending.
The specific prohibition of compulsory vaccination seems to have a solid legal basis, if only for that reason that it was expressly decided by the legislature.
However, the fact that vaccination bans are almost certainly legal in Texas and Florida is only the beginning of the story – not the end. First, these mandates without mandate only empower states to enforce vaccination bans; they do not require states to do so. With the threat from the two Austin restaurants, the Texas executive has made a clear signal that it will vigorously enforce the new law. This means that private companies in the state are actually not allowed to choose whether to serve unvaccinated customers. Of course, these companies would still be free to close their doors instead of serving the unvaccinated. But if they wanted to make up their minds to open, they had to serve the vaccinated and the unvaccinated alike.
Second, the Austin restaurant contretemps underscores how little these statewide rules have to do with individual “freedom” or the right of individuals – including business owners – to make their own choices. There are certainly some restrictions on the right of private companies to choose who to serve – including federal regulations that prevent certain companies from discriminating based on race, gender, religion, etc. However, these limits are all based on the long-accepted principle that there are contexts in which the right of customers to equal treatment overrides the individual autonomy of entrepreneurs.
For example, the “freedom” of a restaurant to serve black customers or Catholics or women must give way to the civil rights of those customers. This principle of equality has never been understood to extend to unvaccinated individuals – there is a much stronger justification for different treatment (protection of public health) than for different treatment of members of protected groups.
Third, even if there were consensus to extend these principles of equal treatment to the unvaccinated, this would not serve to protect the “freedom” of the unvaccinated; it would be to protect their (not yet existing) right to such equal treatment at the expense of the freedom of entrepreneurs, whose choices are now limited. In contrast, a universe where private companies can require customers to wear shirts but not masks – or where private companies cannot insist that customers be vaccinated against a highly contagious virus – is a universe with a very twisted idea of Freedom.
Perhaps we should recognize the right of the unvaccinated to equal treatment before the law and expand federal and state civil rights laws to protect them from discrimination even in the midst of a global pandemic. Sensible minds may well disagree on this point. Hopefully, however, we can at least agree that we should drop the fiction that these governors are defending their residents’ freedom of choice. They are only defending the freedom of their residents to make the decisions that are approved by the elected officials.
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