What is Florida's Vaccine Passport Law Trying to Accomplish Exactly?
Florida's law prohibiting "vaccine passports" has been preliminarily struck down in federal court.
I confess that I'm completely baffled by why this law existed in the first place. As the opinion points out:
The Statute prohibits businesses from requiring their patrons to present “documentation certifying COVID-19 vaccination or post-infection recovery” for access or services. However, nothing in the Statute prohibits businesses from demanding documentation of a negative COVID-19 test or any other type of medical or informational documentation. In fact, because the Statute allows businesses to institute “screening protocols” to protect public health, id., business entities are expressly permitted to require this type of documentation, including COVID19 test results, other vaccine documentation, and other types of medical information. The only documentation businesses cannot demand is COVID19 vaccine documentation.
So the law expressly allows companies to require negative covid tests, and can ask about whatever other vaccines it wants to, but it can't ask about covid vaccines.
Why?
It doesn't make sense if the goal is safeguarding medical privacy, because the law explicitly allows them to ask about literally any other vaccines and literally whatever other medical records they want, including requiring negative test results. It also doesn't make sense if the goal is preventing "discrimination" against the unvaccinated because the law literally does nothing to prevent that. What the law actually prohibits is requiring proof of vaccination documentation as a condition to boarding the ship. What it doesn't require is for companies to treat everyone the same:
In addition, the Statute also does not prohibit businesses from subjecting unvaccinated customers—and those who decline to verify their vaccination status and are deemed unvaccinated—to restrictions, requirements, and expenses that do not apply to vaccinated patrons. For instance, other cruise lines operating in Florida have required unvaccinated passengers to take multiple COVID-19 tests throughout the cruise at their own expense, with each test costing more than $100. These passengers are also required to purchase costly travel insurance that covers medical travel and related costs for COVID-19. Cruise lines have also limited unvaccinated passengers’ access to events, activities, and venues. Unvaccinated guests on Royal Caribbean’s Freedom of the Seas do not have access to certain dining venues, the casino, art auctions, the indoor pool, or the spa and during shows, they are required to sit in the back of the theater. Princess and Carnival have also limited the excursions available to unvaccinated guests at ports of call.
Unless there's something obvious I'm missing, this law strikes me as entirely performative. Discerning exactly why vaccines have become part of the culture war is a topic beyond me. I'll note that Florida has mandated vaccinations for a long time in other areas with nary a peep in protest.
I actually want to like DeSantis. One of the few things I appreciated about Trump early on was his brash machismo. DeSantis appears to successfully embody that energy while also having an astonishingly well-informed executive command of policy (Seriously, his bout with 60 Minutes where he just summoned an esper at that journalist was beautiful to watch). But DeSantis also had another one of his pet pieces of legislation get struck down on much more obvious First Amendment grounds not too long ago. Florida passed a law ostensibly prohibiting social media companies from banning anyone running for public office, yet also conveniently exempted social media companies that just happened to also own at least 25 acres of a theme park or entertainment venue (guess who that applied to).
The law's clear constitutional deficiencies, and it's blatant "25 acres" exemption also had me conclude that it was entirely performative. I get that politicians have to throw red meat to their base, so I suppose this shouldn't be all that surprising. But is that a fair perspective to view this through? Is it becoming one of politician's job requirements that they pass dumb laws that get struck down just to appease their base? Companies that successfully sue very often get attorney fees granted in these circumstances, so it also is a not-insignificant transfer of public funds to already well heeled law firms. Is there a more charitable way to view these endeavors?
Shifting back to the legal merits of the case, I was surprised that the law was struck down on 1A grounds. My first impression was that it was a stretch. It made more sense when considering one of the cases the opinion cites on page 25, Dana's R.R. Supply, which dealt with another Florida statute. That other law criminalized adding a "surcharge" to credit card purchases, but allowed merchants to offer a "discount" for cash purchases. The law was ostensibly aimed at preventing dual-pricing conduct, but by allowing cash "discounts" it didn't actually achieve its objective and instead just criminalized how merchants could talk about pricing. They were allowed to say discount, but could not say surcharge.
The judge in this case pointed out that the vaccine passport law only prohibited requiring documentation, and didn't prohibit companies from asking for oral verification. The law also did not prohibit companies from imposing extra conditions on those who refused to "voluntarily" provide vaccination documentation. That's how you ended up with scenarios with cruise lines functionally saying "now, we're not requiring documentation, but if you choose to give that to us, you won't have to take daily $100 covid tests or sit in the back of the theater. Just saying."1
I know that some small businesses have required proof of vaccination to enter their premises, but I'm not aware of any major corporations doing the same. The financial burden of excluding 40-50% of your consumer base is staggering and would be untenable. I'm aware of bars and music venues requiring proof of vaccination, but from what I've seen it's usually to get around mask mandates, or already in areas with high vaccine adoption. My guess is that big companies have no plans to exclude the unvaccinated from giving them money, but need to be mindful of their legal liability exposure and will adopt extra measures on that class.
The State of Florida doesn't have unlimited authority obviously. The laws it passes must meet constitutional muster, or at the very least pass the extremely deferential "rational basis" test. If the actual goal of this law was to prevent "discrimination" against the unvaccinated, I would have written it differently. It would have a clause that says something along the lines of "No business shall discriminate on the basis of vaccination status" and then also prohibit giving bonuses for those who choose to provide proof they're vaccinated. It's not clear to me what would be unconstitutional about this law, but I gather it would also be deeply unpopular since companies would just resort to treating everyone as if they're unvaccinated, subject to the same onerous public health restrictions. The way the Florida law was written doesn't address any of these concerns.
I'm sure this was at least motivated as a publicity stunt, but this Florida concert promoter charged $1000 for tickets but offered a $982 discount if you show proof of vaccination. As he said it “I’m not denying entry to anyone, I’m just offering a discount.” The Governor's office claimed this was against the law, but I don't understand their argument.
You can see the text of the law yourself starting on pg 22:
A business entity...may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government issued guidance to protect public health.
Obviously a $982 discount is cheeky, and arguably against the "spirit" of the law. But if they wanted that specific type of behavior prohibited, they could've easily added language in the statute indicating as much. They didn’t.