A federal judge has issued an injunction on a Florida law that prohibits corporations from requiring vaccination documentation in order to provide service, partially on the grounds of the First Amendment, and partially on the grounds of the dormant commerce clause.
The relevant Florida law:
2) A Florida business entity, as defined in s. 606.03 to include any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business. This subsection does not otherwise restrict businesses from instituting screening protocols in accordance with state or federal law to protect public health.
Injunction orderLaying aside the commerce clause for a moment, the judge is saying that regulation or prohibition of the following conduct is violating the First Amendment:
- Customer wants to purchase a service.
- Business asks for a vaccine passport or other proof of full vaccination.
- Customer refuses to provide proof.
- Business denies the customer service.
This apparently violates the First Amendment because it's "content-based" regulation, according to
Reed v. Town of Gilbert,
Sorrell v. IMS Health Inc., and others. It was considered "content-based" because the customer could voluntarily still provide the documentation, and the business could still require antibody tests or oral attestation (while conveniently ignoring the point of the law: no discrimination on the basis of vaccination status).
This got me thinking, couldn't this logic be used as an end run around the Civil Rights Act? Replace "vaccine passport or other proof of full vaccination" with "proof of religious affiliation membership", "proof of positive skin color", or "proof of sex". The "proof" is still information i.e. speech and thus under the First Amendment logic above it should be unconstitutional to regulate or prohibit it, right? The dormant commerce clause wouldn't even be violated since the Civil Rights Act is federal law.
The first thing I could think of to salvage this is to plainly legislate that "no customer shall be denied goods or service, or equal quality thereof, on the basis of vaccination status." This would have the downside of having to slowly hash out the details in court since the law is so broad and vague, but that still wouldn't give assurance that the law couldn't be similarly challenged under the First Amendment.
Could this be the end of the Civil Rights Act?