COVID-Vaccinated Citizens May Have Constitutional Rights
Could Sue For Exemptions From Restrictions, or Even For "Vaccine Passports"
If vaccination prevents over 95% of all COVID infections, the legal justification for restricting vaccinated adults from travel, gathering in a house of worship or attending a political rally or protest, and engaging in many other activities will greatly diminish.
Indeed, law professor Ilya Somin calculates that, for vaccinated Americans, the risk of death from COVID is many times lower than the risk of death from the common flue - and few if any judges would be convinced that the latter risks would justify overriding these valuable rights.
Any governmental edict which impinges of a fundamental right must - to withstand constitutional scrutiny- be proven to serve a "compelling governmental interest" and be the "least restrictive alternative"
Preventing the spread of a virus which - at least to vaccinated citizens - is many times less dangerous than the flue is hardly a compelling governmental interest, argues Banzhaf.
Also, he suggests, limiting the activities of all adults to prevent the spread of COVID from a few is hardly the least restrictive means available.
Far less restrictive of these important rights, and virtually as effective, would be to impose restrictions only on those who are not fully vaccinated, and allow those not at risk o be exempt from the government restrictions.
Some legal scholars, including law professors Kevin Cope and Alexander Stremitzer, have argued that not only are "exemptions for the vaccinated . . required by the Constitution, but also that "governments may be constitutionally required to provide a vaccine passport program for people under continuing restrictions."
In summary, even if the Constitution does not necessarily require that governments issue vaccination passports, any government limits imposed by the pandemic constitutionally must exempt those who have been vaccinated, but not necessarily issue government proof of vaccination.
Finally, at the very least, governments probably cannot constitutionally prohibit private businesses from doing what the government itself should be doing; providing exemptions and special treatment for those who can show, by whatever means, that they have been full vaccinated.
For example, if restaurants can require customers to wear shoes and shirts, or males to wear ties, it's hard to see how government can legally prevent restaurants and other businesses from requiring customers to be vaccinated, at least once such vaccinations are sufficiently widely available, argues Banzhaf.