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I heard that New York is implementing a vaccine certificate for people who want to do certain indoors activities such as going to the cinema, eating and training, so I was wondering if that was against the constitution or not since I thought only restaurants can decide who they can discriminate against as long as the person doesn't belong to a protected class.

Is it against the constitution to require restaurants to only serve people with a vaccine certificate in the United States?

Kate Gregory
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Sayaman
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    Related question: https://law.stackexchange.com/questions/70537/discrimination-due-to-covid-19-certificate-requirements/70551?noredirect=1#comment146956_70551 – David Siegel Aug 08 '21 at 01:40
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    Since when did "the constitution" make it mandatory for any person to provide any service to another person? – alephzero Aug 08 '21 at 12:47
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    Most restaurants where I live have a notice that says, right of admission is reserved. Do American businesses not do the same thing? – Neil Meyer Aug 08 '21 at 13:40
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    @alephzero It does not, but the constitution has been held to guarantee rights to access "places of public accommodation" on equal terms in some cases, although now broader guarantees are provided by law, But the constitution may be involved if a law mandates that certain people be excluded, as occurred during the "Jim Crow" era when Blacks were excluded by law. – David Siegel Aug 08 '21 at 14:44
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    @Neil Meyer Such signs are not common in the US, but restaurants and such businesses generally have the right to refuse service except on prohibited grounds, such as race and religion. But the question in this thread is whether the government can require such exclusion, as opposed to it being the choice of the business. – David Siegel Aug 08 '21 at 14:47
  • "The new program, dubbed 'Key to NYC Pass,' is not a particular document," and "Enforcement -- but not by police -- will begin on September 13" – NYT - so all it does is further protect any business because already "Under federal anti-discrimination laws, businesses can refuse service to any person for any reason, unless the business is discriminating against a protected class." - the real question is if business will face penalties for non-compliance, but there's no "document", so it's all BS anyway. – Mazura Aug 08 '21 at 20:02
  • What makes you think that given that much stricter measures were in effect before?? – Peter - Reinstate Monica Aug 09 '21 at 09:56
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    @DavidSiegel I've come across restaurants in the US that won't allow you in if you're improperly dressed (eg. barefoot, or not wearing a tie -- or in one case, a restaurant that required you to REMOVE your tie!). – Michael Kay Aug 09 '21 at 14:03
  • @alephzero I don't know if it's the constitution or just legislation and court rulings, but there have been plenty of cases where private Christian-run businesses who refused to serve gay couples have lost legal challenges. – Michael Kay Aug 09 '21 at 14:08
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    @Michael Kay yes, because in some states sexual orientation is a protected class, and recent interpretations hold that discrimination on account of sexual orientation is a form of sex discrimination, and sex is clearly a protected class under all US anti-discrimination law. Thus refusal to serve gays is treated like refusal to serve blacks, not like refusal to serve red heads. One might debate if that is sound policy, or morally right, but currently it is the law, It is by statute, not Constitutional right. – David Siegel Aug 09 '21 at 19:22
  • What provision of the Constitution do you have in mind? "Protected classes" are established by statutes, i.e. by ordinary legislation, not by the Constitution. – Michael Hardy Aug 09 '21 at 19:44
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    @Michael, my comment said "It is by statute, not by constitutional right". However, some early anti-discrimination cases were decided under the equal protection clause, not under a statute. But all recent decisions have been under a federal or state statute, to the best of my knowledge. – David Siegel Aug 09 '21 at 19:58
  • @alephzero Since the Republican party turned socialist, of course! /j – user253751 Aug 09 '21 at 20:08
  • I read that Florida issued a law making it illegal for cruise lines to require proof of vaccination, and the NCL cruise line got a preliminary injunction declaring this law unconstitutional. Seems like the exact opposite of course. – gnasher729 Aug 10 '21 at 06:41
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    @NeilMeyer I'm not sure where you live, but the right of admission is reserved by default in the US, so a sign would be redundant. A business can pretty much turn you away for any reason as long as it is not a protected category. – PC Luddite Aug 10 '21 at 15:52
  • "I thought only restaurants can decide who they can discriminate against as long as the person doesn't belong to a protected class." That suggests that the answer is "yes" because that means that State and Federal laws can specify how restaurants can and can't discriminate among their customers. – David Schwartz Aug 11 '21 at 01:56
  • @DavidSchwartz I assume they can discriminate against persons belonging to a protected class, but not BECAUSE they belong to a protected class. So a restaurant can deny you access because you wear no shoes, whether you are white, black, christian, muslim, gay or not. – gnasher729 Aug 11 '21 at 15:34

2 Answers2

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NO

Under the US Constitution, a public health authority could even make vaccination mandatory, and this was done in some historical epidemics.

In Jacobson v. Massachusetts, 197 U.S. 11 (1905) the US Supreme court held such mandatory vaccinations to be constitutional. The court wrote:

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.

The highest court of Massachusetts not having held that the compulsory vaccination law of that State establishes the absolute rule that an adult must be vaccinated even if he is not a fit subject at the time or that vaccination would seriously injure his health or cause his death, this court holds that, as to an adult residing in the community, and a fit subject of vaccination, the statute is not invalid as in derogation of any of the rights of such person under the Fourteenth Amendment.

...

persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned.
Railroad Co. v. Husen, 95 U. S. 465, 95 U. S. 471;
In Crowley v. Christensen, 137 U. S. 86, 137 U. S. 89, we said:
The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.

...

Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety.

The above decision was over a vaccination law during a smallpox epidemic, and the background is described in this "History Stories" article and in the Wikipedia article about the case

Governments have the authority, in general, to pass laws (or impose regulations) that serve "compelling governmental interests" and are of general applicability. Such laws are valid even over most constitutional claims, depending on the claim and the detailed facts.

Protecting the public health is a compelling governmental interest.

Such laws might have to (and normally do) provide exceptions for people with medical reasons why they cannot safely be vaccinated, or with sincere religious objections to vaccination. In such cases alternate measures of protection, such as frequent testing for infection, might be required.

Note that existing public health laws generally require wearing shoes and shirts in restaurants, and require restaurants to refuse service to those who do not comply.

In Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902) the US Supreme Court upheld as constitutional an involuntary quarantine law.

in Zucht v. King, 260 U.S. 174 (1922) the US Supreme Court upheld as constitutional a public school district's exclusion of unvaccinated students.

David Siegel
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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Aug 10 '21 at 07:42
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    Despite the fact that many restaurants require shoes and shirts, it is not public health law. – Herohtar Aug 10 '21 at 21:18
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    Businesses may set a dress code, but it's not a public health regulation, contrary to many places claiming it is. https://people.howstuffworks.com/where-did-shirt-shoes-required-come.htm "In fact, no U.S. state has a law requiring restaurant patrons wear shoes." The Society for Barefoot Living apparently has done a lot of research on the legality of not wearing shoes : https://www.barefooters.org/health-codes-and-osha/ – ColleenV Aug 11 '21 at 14:15
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There are plenty of laws that prohibit entry, service of sale to minors (usually under 18 or under 21) for a variety of products, services and venues, including gambling, alcohol, tobacco, drugs, pornography...

Clearly these are imposed either by the state or by the federal government (sometimes indirectly), and business are required to enforce those rules and subject to severe penalties if they don't. Age verification by checking ID ("carding") is extremely common in the US, and there are many venues where you won't be able to get service, or sometimes even enter, if you don't meet the requirements set by law.

So no, businesses (including restaurants) are not the only ones who can decide who they provide service to or not, the government (state or federal, or sometimes even local) can set rules for them.

Such laws need to be justified by compelling public interest (protection of minors in the case above, protection of the general public in the case of vaccination or mask requirements), but they are perfectly constitutional (with the usual caveat of whether this is under the authority of the states only or if the federal government can do it, but this is addressed in this question).

So, there are three cases for refusing service (2 legal, one not):

  • Required by law
  • Decided by the business (as long as it is not discriminatory against a protected class), so not required by law but not forbidden either.
  • Decided by the business but discriminatory, which is illegal (forbidden by law).
jcaron
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