There’s No Vaccine for Hypocrisy: On Republicans’ Opposition to COVID-19 Vax Passports 

by Debbie Kaminer
(originally published in the New York Daily News)

The latest battle in the COVID-19 culture wars involves “vaccine passports,” with some Republican leaders taking a surprisingly anti-business and pro-regulation stance. Despite the term’s ubiquity, there is no one official vaccine passport, and the term simply refers to proof of vaccination, whether digital or hardcopy, such as a CDC vaccination card. Over the past few weeks, with a number of red states leading the way, there has been growing conservative backlash to any type of vaccine passport and some politicians are claiming that all proof of vaccination requirements violates personal freedom and private choice.

What is lost in this argument is the crucial distinction between government requiring individuals to have proof of vaccination to access venues such as stores, restaurants, concerts and sporting events and a private business requiring such proof. Republicans once understood such distinctions and consistently stood on the side of private actors making decisions that made sense for them.

Despite the conservative outrage, there is nothing new about government mandates requiring proof of vaccination. All 50 states currently require some form of compulsory vaccination for children attending K-12 schools, and various states also mandate vaccination for college students, as well as employees in nursing homes and health-care facilities. There are also branches of local government that have already announced they will mandate the COVID-19 vaccine in certain venues, and more are likely to follow. For example, Erie Country N.Y. Executive Mark Poloncarz announced that starting in the fall all fans and staff attending home games of the Buffalo Bills and Sabres must be vaccinated. Some conservatives oppose already existing vaccine mandates, and it is logically consistent that they would similarly oppose government-mandated proof of COVID-19 vaccination in the same or similar contexts.

However, these government mandates should not be conflated with completely private vaccine mandates where a private entity independently chooses to require proof of vaccination — and where there is no government action — and yet that is exactly what is happening. Private businesses have been decimated by the COVID-19 pandemic, and some have concluded that the best way to protect their business interests as we emerge into better days is by choosing to require that their customers and employees be vaccinated. 

Particularly in businesses where people gather in crowded indoor environments such as bars, gyms, restaurants and theaters, owners are understandably apprehensive about the spread of infection. Further, in consumer-based industries, a vaccination requirement could increase some customers’ comfort with frequenting the business. Antidiscrimination laws already provide protection to individuals who require a medical or religious exemption from a COVID-19 vaccine mandate.

And yet, in a clear case of government overreach, some Republican politicians have enacted regulations banning private businesses from choosing to require the COVID-19 vaccine. For example, Florida Gov. Ron DeSantis recently issued an executive order that prohibited not only Florida government entities, but also private Florida businesses from requiring customers to provide any type of vaccine passports — defined broadly as “any documentation certifying COVID-19 vaccination.” The order itself attempts to justify this significant regulation of private business as necessary to protect the “free flow of commerce.” This is a very strange position for one of the leaders of the Republican Party, which brands itself as being pro-business and anti-regulation. 

Essentially, Florida’s executive order is turning unvaccinated people into a protected class under the state’s anti-discrimination laws. Just as state anti-discrimination laws protect customers from discrimination based on fundamental characteristics such as race, sex or religion, Florida now has added those who have not received the COVID-19 vaccine. While Florida’s executive order has received significant media attention, similar bills prohibiting private businesses from requiring customers or employees to be vaccinated have been introduced in other states around the country including Alabama, Arizona, Iowa, Montana and Wisconsin.

Unlike DeSantis, Gov. Greg Abbott of Texas has somewhat recognized the distinction between government and private mandates. While Abbott recently issued an executive order prohibiting COVID-19 vaccine passports by “all state agencies and political subdivisions” the Texas order only covers private businesses that “receive public funds.”

Yet this distinction has been lost in much of the media coverage on vaccine passports.

Regardless of where one stands on whether government should require individuals to have proof of the COVID-19 vaccine to access certain high-risk venues — and I do support some government mandates — it is troubling for a state to go a step further and actively take away a private business’ ability to protect itself from the worst pandemic in a century. It is also hypocritical for Republicans, in the name of freedom and personal choice, to take an anti-business position that destroys the freedom and personal choice of private businesses.

Kaminer is a professor of law at Zicklin School of Business/Baruch College, CUNY.