No ‘constitutional right’ to refuse a business mask policy

Desy Papper

As the mask mandate lifts across Texas, a UH Law professor explains, “you’re entitled to your outage,” but your feelings don’t make a store’s mask policy illegal. HOUSTON — As of 12:01 a.m. Wednesday, March 10, Texans will no longer be ordered to wear face masks by Governor Greg Abbott. […]

As the mask mandate lifts across Texas, a UH Law professor explains, “you’re entitled to your outage,” but your feelings don’t make a store’s mask policy illegal.

HOUSTON — As of 12:01 a.m. Wednesday, March 10, Texans will no longer be ordered to wear face masks by Governor Greg Abbott.

Gov. Abbott’s mask mandate will be lifted, leaving the CDC recommendation, which has been studied and proven to slow the spread of COVID-19, in the hands of private businesses.

Whether you’ve witnessed pushback against mask requirements or watched tantrums or rants play out on social media, a year into the National Emergency, there’s a chance you’ve heard a fellow Texans say something like, “it’s my constitutional right” or “my American right” or “my civil right” to not wear a face mask while inside an establishment.

The fact is, that’s just not true.

A University of Houston Law Center professor, Emily Berman, helps to set things straight.

“The law is not general. The law is very specific,” she said.

According to the U.S. Department of Justice, federal law protects Americans from discrimination on the basis of race, color, sex, disability, religion, familial status, national origin and citizenship.

Berman, who teaches constitutional law, explains that face covering requirements are not covered by federal protections.

“Businesses can have their own policies. I mean, how many restaurants have you seen, no shirt, no shoes, no service?” she said.

Bottomline, “I think businesses need to prepare for people to be unhappy,” Berman said. “And people should realize that businesses are entitled to ask them to wear a mask.”


From mask-less people screaming about their legal rights while standing in a store, to a mask-less woman throwing food out of her grocery store shopping cart after cashiers refused to check her out, to a Houston bartender physically assaulted for allegedly asking a man to wear a face mask has he walked through the bar, “if they become violent, if they become destructive, they certainly open themselves up to criminal charges.”

And businesses that continue enforcing a mask policy after March 10 should prepare for pushback.

“You’re entitled to your outage. You’re entitled to feel as if it’s unfair or the wrong approach. But that doesn’t necessarily mean that it’s illegal,” Berman said.

So is it your constitutional right to not wear a mask inside a business that requires customers to wear a mask?

“You do not have a constitutional right to enter a particular store or a particular place of business,” Berman said.

Instead, pay close attention to the words in a business’ policy.

There’s a difference between “strongly urge” and “require” and between “we’re hoping” and “we’re enforcing.”

So if you don’t want to wear a mask, which we know slows the spread of COVID-19, take your business somewhere else. That is your right.

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