This holiday season, many will face the decision of whether to allow others into their home. Alternatively, some people may be asked to show evidence of vaccination or even to show a recent test result before going to a family dinner. Aside from the outrage a person may feel from the apparent intrusion, and aside from the difficulty you may face in determining whether to restrict your own holiday event, what are your rights under California law?
Your Rights (or Your Guests’ Rights) to COVID-19 Privacy
Since the mask mandates began, citizens of California have challenged the state’s right to mandate masks. They have challenged the state’s ability to invade their privacy by mandating PCR tests for school children. (Guilfoyle v. Beutner (Sept. 14, 2021) 2021 U.S.Dist.LEXIS 195396.) Some have challenged the state’s action as excessive use of police power. (Forbes v. City of San Diego (Mar. 4, 2021) 2021 U.S.Dist.LEXIS 41687.) Others have claimed that it violates their right to equal protection of the laws, particularly where they are being discriminated against for their views against vaccination. (See Guilfoyle v. Beutner (Sept. 14, 2021) 2021 U.S.Dist.LEXIS 195396; Forbes v. City of San Diego (Mar. 4, 2021) 2021 U.S.Dist.LEXIS 41687 at 8.)
Among the important decisions that plaintiffs cling to in order to protect their rights to not wear masks or subject themselves to tests is the right to make medical decisions, but the U.S. Constitution, as discussed in Forbes, only gives people a “constitutional liberty interest under the Due Process Clause to refuse medical treatment.” (Forbes v. Cty. of San Diego, supra, 2021 U.S.Dist.LEXIS 41687 at 18–19, emphasis added.) The Courts agree: masks and tests are not medical treatments. In the words of one Court: “The requirement that an individual wears a mask in public within six feet of persons from other households during a pandemic is a far cry from compulsory vaccination, mandatory behavior modification treatment in a mental hospital, and other comparable intrusions into personal autonomy.” ( Forbes v. Cty. of San Diego, supra, 2021 U.S.Dist.LEXIS 41687, at 19.)
Regarding the right to privacy, “[t]he right to privacy includes at least two constitutionally protected privacy interests: the right to control the disclosure of sensitive information and the right to independence in making certain kinds of important decisions.” (Forbes v. Cty. of San Diego, supra, 2021 U.S.Dist.LEXIS 41687, at *14-15, internal quotes removed.)
While one might argue that a test infringes on the right to “control the disclosure of sensitive information,” one cannot argue that it intrudes on the right to make important medical decisions. Furthermore, the Courts have repeatedly found that the right to control the disclosure of sensitive information is limited by a State’s compelling interest in promoting public health and welfare. In Guilfoyle and Forbes , cited above, the Court found compelling interest supported by the various press releases produced by the Governor’s Office, the Center for Disease and Public Health, and the Center for Disease Control.
Given the Court’s findings on challenges to State action, it is unlikely that any person can claim a valid privacy right in the face of the COVID-19 pandemic as it pertains to masks, producing evidence of vaccination, or producing evidence of a current test result. If such a claim can be made, the situation is rare and specific.
A Persons Right to be Selective in who Visits a Private Residence
One thing remains common among mask and testing mandates: they only apply outside a person’s private residence. Why is that?
To answer this question, we look at a topic that receives the highest protection: racial discrimination. Time and time again, the Court has upheld a private person’s ability to discriminate on the basis of race.
In Hill, a tenant sued a landlord for evicting him because of the color of his skin. The landlord admitted to the fact, and continued to explain: “I did it because he is black, and I’d do it again, and you cannot stop me.” To this, the Supreme Court of California said: “The Fourteenth Amendment [of the US Constitution] does not impose upon the state the duty to take positive action to prohibit a private discrimination of the nature alleged here.” (Hill v. Miller (1966) 64 Cal.2d 757, 759 [51 Cal.Rptr. 689, 415 P.2d 33].)(paraphrased)
The Court of Hill continues to elaborate:
Although the state, by action of the Legislature or the People, may make such private acts of discrimination unlawful, it has not done so. Section 51 of the Civil Code, commonly known as the Unruh Civil Rights Act, prohibits discrimination only where it occurs in “business establishments of every kind whatsoever.” (See Lee v. O’hara (1962) 57 Cal.2d 476 [20 Cal.Rptr. 617, 370 P.2d 321]; Burks v. Poppy Constr. Co. (1962) 57 Cal.2d 463 [20 Cal.Rptr. 609, 370 P.2d 313].) The Rumford Fair Housing Act ( Health & Saf. Code, §§ 35700- 35744) prohibits discrimination only in the sale or rental of public assisted housing accommodations and in any private dwelling containing more than four units. ( Health & Saf. Code, §§ 35710, 35720.)(Hill v. Miller (1966) 64 Cal.2d 757, 759 [51 Cal.Rptr. 689, 415 P.2d 33].)
The U.S. Constitution gives people rights that protect people against government action. Where the government has issued a license (such as to a Realtor in a sale, or to a business, generally), the protections of the Constitution apply, because the State is made an actor through its licensing efforts of the discriminating person. Hill reminds us that the State of California has the power to make its own rule to prohibit discrimination between individuals, but the State of California, much like most US States, has declined to do so. (Probably because such a rule would infringe on a person’s freedom to associate (First Amendment).)
Similarly, the State continuously declines to invade a person’s home. A person has an unequivocal right to choose who is welcome in their private residence, even if it is discriminatory. If a person can exclude a person from their home because they are the wrong skin color, then a person can absolutely exclude a person from their home for failing to convince them that the excluded person does not bring with them death and pestilence (or even just the common cold).
Effectiveness of the COVID-19 Vaccine
As to the reasonableness of requests to exclude those who might carry the COVID-19 disease, we must look to whether there is evidence that the Vaccine and the tests work.
As recent as November 17, 2021, the court highlighted that one expert witness, which was presented to show that vaccination does not help prevent infection, actually testified to the opposite. They used this testimony to rule against the Plaintiff and dismiss a case. According to the expert testimony in Plata v. Newsom (Nov. 17, 2021) 2021 U.S.Dist.LEXIS 225329, although persons who are vaccinated can still contract COVID-19 delta-variant, the disease runs through their system much faster meaning that fully vaccinated people are less likely to spread infection. (See Plata v. Newsom (Nov. 17, 2021) 2021 U.S.Dist.LEXIS 225329 at 7–8.) “[B]ecause vaccinated individuals are less likely to become infected in the first place and also experience accelerated viral clearance, it remains undisputed that vaccinated individuals are less likely to infect others.” (Id. at 8, emphasis added.)
The CDC provides a fascinating Data Tracker. There, you can see information about lots of different aspects of the disease. As of today, the Data Tracker shows that as of Saturday, November 20, 2021, 99.7 fully vaccinated people out of every 100,000 fully vaccinated people tested for COVID-19 were positive for the disease. Compare this against the 474.8 unvaccinated people who test positive out of every 100,000 unvaccinated people who take a COVID-19 test. Unvaccinated people are five times more likely than vaccinated people to catch and test positive for COVID-19.
When we divide the data and look at the 99.7 fully vaccinated people as two subgroups, we see another divide. This data consists of two subgroups of people: (1) People with the booster, and (2) People without a booster. Of the fully vaccinated people without a booster, 133.8 out of 100,000 will test positive for COVID-19. Of the fully vaccinated people WITH a booster, only 48 out of 100,000 will test positive for COVID-19.
This means that a person without the vaccination is ten times more likely than a person with the vaccination and booster to catch COVID-19!
Is it reasonable to believe that vaccinated people are less likely to carry the disease? YES!
Because a person has an absolute right to exclude nonresidents from their home (for any reason), if the host of your Christmas dinner asks for proof of vaccination, you should either decline the invite (politely) or produce the papers.
And, if the host gives you the option of retaining your privacy by showing a recent test in lieu of vaccination records, then say “thank you,” because you don’t have a right to privacy on this issue, and they are being gracious in giving you the freedom to maintain your privacy and the freedom to choose medical procedures that are right for you.
All they want to know is whether you are bringing something that might kill them and their loved ones into the home, and that’s a reasonable request.
Even if the death rate is ridiculously low (unvaccinated people are dying at a rate of 4.98 people out of every 100,000, and vaccinated people are dying at a rate of 0.38 for every 100,000), remember that you can be excluded from a private residence for having the wrong skin color, and no one has ever proved a medical risk from exposure to diversity. So, every time that someone invites you into their home, remember that they don’t have to. Period.
Personally, while I acknowledge a person has a right to exclude any person from their home, I don’t condone discrimination and find it particularly distasteful even if exhibited by people who have the right to do so.
And, if you are worried about whether someone with COVID-19 is going to end your life this Holiday season, remember that I and the other members of Coleman & Horowitt, Bakersfield, are here and ready to set up your estate plan. You should never face the uncertainty of death without first leaving a plan for your survivors to follow.