Training a Public Accommodations Lens on Vaccine Passports

Abstract

The Covid pandemic and the rise of smartphone technology enabled the use of “vaccine passports”—that is, a requirement to show proof of vaccination against Covid—on a scale unmatched before in human history. In the United States, many public accommodations such as restaurants, coffee shops, stadiums, and movie theaters required patrons to show proof of vaccination in order to enter or consume food and drink on the premises. In approximately two dozen local jurisdictions as well as the District of Columbia and Puerto Rico, government mandated that public accommodations do this, with varied carveouts for religious objections and medical or age-based inability to vaccinate. In requiring proof of vaccination, these businesses, entities, and municipalities acted in an area of law with a centuries-old lineage. Legal scholars like Harvard professor Joseph Singer have forcefully argued that businesses and venues open to the public should be required to take all comers under the common law, unless the particular patron would disrupt the business’s operations. This argument reflects a pre-Covid skepticism among left-leaning scholars and policymakers regarding businesses and venues having carte blanche to decide whom to admit and serve. Ironically, this skepticism dissipated among many commentators and policymakers during the Covid emergency, with vaccine passport proponents analogizing them to “no shoes, no shirt, no service” policies. Since Covid, seven states have explicitly banned vaccine status discrimination through legislation; two of these, Alabama and Texas, do not even have general state public accommodations antidiscrimination laws.

In addition to the common law, federal and state statutes seek to promote equality of access and individual dignity by limiting public accommodations’ prerogative to exclude certain customers. The most well-known such antidiscrimination law is Title II of the Civil Rights Act of 1964; state and local legislation often go even further both in terms of the venues and services they regulate and the classes of persons they protect from discrimination. This Article analyzes vaccine passports amidst both the common law and statutory tableau, demonstrating that the weaker the evidence of the vaccines’ preventing the spread of Covid, as opposed to protecting against severe disease and death, the weaker the argument for their use under the vision of the common law promoted by Singer. Unfortunately for the opponents of vaccine passports, that vision has achieved limited purchase doctrinally among state courts.

Assessing the legality of both voluntary and municipal vaccine passports under antidiscrimination statutes reveals that there are many unanswered questions decades into their existence. Almost sixty years in, the federal courts still have not decided if Title II protects against disparate impact discrimination, for instance. Reasoning by analogy from Title VII where appropriate, the article walks through what a lawsuit based on Title II regarding Covid vaccine passports might look like and why its chances of success would be limited. The Article also analyzes vaccine passports and medical exemptions thereto under the Americans With Disabilities Act, as well as age-based discrimination under (some) states’ antidiscrimination laws, and finds that some voluntary practices in this area may have been legally suspect.

Note:
Funding: The author is an occasional paid consultant for the Local Solutions Support Center, which has advocated on behalf of local regulatory authority before and during the Covid pandemic, although they did not fund or participate in this project at all. Research into this paper was funded by a faculty research grant by Willamette University. The author also received funding for research assistance from Lewis & Clark College Law School while a visiting professor there from January until June 2022. No outside funding was received for research into this project.

Conflict of Interest: The author declares no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.

Keywords: property, right to exclude, vaccine passports, proof of vaccination, COVID-19, civil rights, antidiscrimination, duty to serve, common law

JEL Classification: K11, K32, K23, I18