Is refusing service to unvaccinated equal to a vaccination mandate?

Question

Yesterday, Texas Governor Greg Abbott issued Executive Order GA-40 that says:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

The American Contract Bridge League is planning on hosting its national tournament in Austin next month. Their safety protocols for the tournament state:

In accordance with the city of Austin’s current safety requirements to minimize COVID-19 exposure and spread, face masks must be worn at all times in the tournament area. Additionally, participants of any NABC event must be fully vaccinated and will be required to show proof of their COVID-19 vaccine status. We will notify attendees at a later date with details on how to verify their vaccination status to ensure the verification process is as seamless as possible.

Many of the prospective attendees are wondering whether the EO prohibits ACBL from implementing this requirement. IANAL, but my opinion is that it doesn't. Denying service to an unvaccinated individual is not the same as compelling them to get vaccinated. As a precedent, I refer to the Masterpiece Cakeshop decision, which allowed a cake shop to refuse to sell a wedding cake to for a same-sex wedding; they weren't forcing the couple to stop being gay. And it's not a civil rights violation, as being unvaccinated is not a protected class.

Is my interpretation reasonable?

Answer 1

I think that is not a "reasonable" interpretation of the order, but that's separate from the question of what will be enforced. Focusing on the word of the order,

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer

What does it mean to "compel" a person to do something? A court can compel a person to stay in jail for some period of time, and can order the police to use force to enforce that requirement – that's the classical example of compulsion. Nobody except the police can compel a consumer to do anything. All of the words of the order have to be given meaning, and it is not reasonable to say that "compel" is limited to "actions backed up by police action". The government does not separately compel "consumers" and "employees" to do things.

In order to sensibly interpret "compel" and "consumer", this has to interpreted as including things other than "pointing a gun at a person". The only sensible interpretation is one that includes denying service to those who do not comply. In addition, the series of "Whereas's" clearly indicate a ban on "no shots, no service" conditions. It remains to be seen in court whether this is found to be enforceable (via the "failure to comply" clause, exactly analogous to other emergency powers allowing restrictions on gatherings etc. previously).

Answer 2

There are a number of legal rules which guide judges in the interpretation of legislation (including orders) and these may vary to a degree between jurisdictions but a general principle is that there is no point in making an order which prohibits something which is already prohibited. Therefore if there are two possible interpretations of an order, one interpretation simply prohibiting what is already prohibited and the other prohibiting something not currently prohibited (or widening the scope of an existing prohibition) then the latter interpretation is likely to be the correct one (all other things being equal).

It is already a crime to stick a needle in someone's arm without their consent so it is unlikely that "compel receipt" is limited to the use of physical force (as that is already prohibited) and likely that the phrase is intended to include other forms of coercion.

Moving on from that general point we can see that the protected individuals include consumers and employees. All individuals who object for one of the protected reasons are covered but consumers and employees are singled out for special mention as examples. What method allows a consumer be compelled to receive the vaccine (which does not apply to someone who is not a consumer)? Most obviously by the provider of goods or services declining to provide the goods/services unless the consumer is vaccinated, or by refusing them entry to the provider's premises, of both.

What method allows an employee be compelled to receive the vaccine (which does not apply to someone who is not an employee)? Most obviously by the employer refusing to hire them or refusing to continue their employment, or by refusing them entry to their place of work (so that they lose pay).

So this kind of coercion would appear to be within the meaning of "compel" in the order.

Of course "compel" is a relatively strong word so where a provider of goods/service or an employer says that someone must either be vaccinated or else have a test, there could be arguments about how much inconvenience amounts to compulsion. For example if a restaurant requires all customers to have their temperature taken if they are not vaccinated, arguably customers are not compelled to be vaccinated because having a device pointed at your forehead for 5 seconds is hardly onerous.

On the other hand if the restaurant required unvaccinated customers to produce proof of a negative test taken in the last 48 hours, and the specified test is expensive or difficult to obtain then perhaps that might be compulsion.

But it is at least clear, I think, that in the order "compel" is not limited to physical force.