Back in the 1970s there was the public outrage when businesses first placed signs on their doors saying, “No shirt, no shoes, no service.” This was a response by businesses to keep the long-haired hippies out of their stores and restaurants. There was no state or federal mandate. Many thought businesses were trampling on their civil rights by telling them what they could or could not wear. But businesses have a right to set their own rules for service. The right to refuse service is now an accepted norm, as is the phrase.
Similar reactions were heard in the ’80s when California enacted a variety of laws. In 1984, the California Supreme Court unanimously upheld a mandatory auto insurance law requiring motorists stopped for traffic violations to prove they have liability coverage or eventually face losing their licenses. Two years later, California’s first seat belt laws took effect on January 1, 1986, and required both drivers and passengers to wear seat belts. It is also a state law that cyclists under 18 riders must wear helmets. Even in the face of scientific studies showing that seatbelts and helmets save lives, there was that old familiar refrain: The government was interfering with individual liberties.
These days, however, we buckle up as soon as we get in our cars, we make sure that our kids are wearing helmets, and we all know the risks of driving without insurance. We wouldn’t even think about walking into a store in our bare feet or without a shirt. All of these have become second nature, our liberties haven’t been curtailed, and no one has been hurt by following the rules.
So it goes with mask mandates.
Businesses have the right to refuse service to those that refuse to enter without masks. Although it may be true that mask regulations came as a culture shock to Americans, it has been almost a year since the pandemic paralyzed the nation, and wearing a mask should be second nature. And yet, for some reason, we are still having this debate.
Mask compliance has become a political issue instead of a health issue, despite the evidence. According to Dr. David Abrams, NYU School of Global Public Health, “This is a life-and-death issue. Masks, physical distance, and hand-washing are the three things we have to reduce the spread of the virus in the absence of a vaccine.” Both the Centers for Disease Control and Prevention (CDC) and the World Health Organization (WHO) recommend masks for the general public. Keeping in line with the experts, the California Department of Public Health issued face covering guidance in April 2020 that must be followed statewide.
In an analysis of data from Johns Hopkins University, California ranked the worst among the states where coronavirus was spreading the fastest on a person-to-person basis. Still protests over wearing masks are now commonplace. As Dr. Abrams pointed out, “There’s a certain bravado of being angry and defying requirements to wear a mask.” Here are examples of such protests from across the state:
- “Costco Karen,” staged a sit-in at a Costco entrance after refusing to wear a mask, yelling, “I am an American… I have rights.”
- An unruly crew marched through Target yelling, “Take off your masks, we are not going to take it anymore.”
- “Burn the Mask” protesters blocked the entrance of Trader Joe’s in Fresno causing the store to close early.
- A protestor at a Ralph’s in Los Angeles called a shopper wearing a mask a, “mask Nazi.”
- In a mall in Century City, anti-mask protesters tried to force their way into several stores causing workers to barricade themselves inside stores to keep out protesters.
Despite these protests, requiring individuals to wear a mask (or seat belts, shoes, and a shirt) is not a violation of anyone’s civil liberties. The government has a right to enact laws to protect the health and safety of the public. That is the quintessential role of the government.
To the extent that protestors object that masks violate their right to liberty (“my body, my choice”), they should direct their attention to Jacobson vs. Massachusetts (1905) 197 U.S. 11, when the Supreme Court upheld the state’s smallpox vaccination requirement. The case has not been overturned. The case clearly explains why mask mandates do not violate any constitutional right to privacy, health, or bodily integrity. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or, “the inherent right of every freeman to care for his own body and health in such a way as to him seems best.” The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”
This case makes it clear that the ideals of limited government do not absolve us of our social obligation to protect each other. Simply put, we do not have a constitutional right to infect others. For now, masks are necessary. Common sense suggests that If there is no choice, we will wear masks. We all will be safer if businesses work together to make, “No Shirt, No Shoes, No Masks, No Service” the norm in California.
Sidebar is sponsored content. Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Lourdes DeArmas is a Senior Trial Attorney based in our Los Angeles office. Email questions and topics for future articles to: firstname.lastname@example.org.