Earlier this year, the Alabama Legislature passed a law banning so-called COVID-19 vaccine passports or any other requirement of documentation of immunization not otherwise required by law.
At the time of consideration, State Sen. Arthur Orr, R-Decatur, the architect and chief sponsor of the legislation that Gov. Kay Ivey would ultimately sign into law, was criticized for creating a solution for a problem that did not exist.
There was a suggestion that Orr and other Republicans were creating a law to take advantage of Republican hysteria.
No one was proposing proof of vaccinations, they said. That was right-winger paranoia.
That seemed feasible at the time. We already had HIPAA laws. What good would this do?
Yet, enough people petitioned their legislator, and the Alabama Senate unanimously passed the bill to ban vaccine passports. It passed the House by a 76-16 margin, and after the governor’s signature, Alabama joined a handful of other states in making vaccine passports “illegal.”
What does “illegal” mean in this circumstance? What is to stop Birmingham-Southern College, which applies a $500 surcharge to those who do not voluntarily offer proof of vaccination status as a condition for enrollment, for testing?
Somewhere along the way, they forgot to include an explicit enforcement mechanism.
For public institutions, the legislature could threaten funding. However, with a private institution like Birmingham-Southern College, there are not many options.
Such is the problem with many laws intended to address public concerns motivated by politics of the moment.
Another problematic example is Alabama’s Monument Preservation Act of 2017.
In a rush to respond to threats from the far left to take down monuments it found objectionable, either by force or an act of a local government, the Alabama Legislature passed a law with the stated intent to protect monuments.
Nearly four years ago, months after the legislation was passed and signed into law by Ivey, then-Birmingham Mayor William Bell ordered a Confederate monument situated a block from city hall in his downtown’s Linn Park covered up, out of view of the public, a blatant violation of the language of the Monument Preservation Act.
The question was, what now? The law stated a fine of $25,000 would be levied against offenders, and Attorney General Steve Marshall publicly said he intended to enforce that law.
After a couple of years of legal wrangling and a lengthy journey through courts, the Alabama Supreme Court ruled that the city of Birmingham violated the law. Still, it capped the fine at $25,000 as one single violation of the statute.
Had the legislature in 2017 not been motivated by politics and had an eagerness to get something passed into law with an election year on the horizon, the enforcement mechanism might have included a more severe penalty not open to interpretation by the courts.
However, as it turned out, a $25,000 fine green-lit municipalities with deeper pockets like Birmingham, and as we would later come to find with Mobile with the Admiral Raphael Semmes statue, which had been in downtown Mobile for 120 years, to take down those statues and absorb the fine.
The reasoning was paying $25,000 to avert potentially hundreds of thousands of dollars in property damage because of civil unrest was worth it.
Aside from encouraging mob rule in the future, these two laws raise more significant concerns about legislation passed out of political expediency. They do not offer a sufficient enforcement mechanism and sometimes complicate the problem, especially regarding vaccine passports and monuments.
A Critical Race Theory prohibition could mean the same thing. Right now, there are three bills under consideration to ban Critical Race Theory that have been prefiled for the 2022 legislative session.
All three have been applauded by constituents worried about the intrusion of such out-of-the-mainstream “theories” in their child’s education.
It becomes problematic, however, when you attempt to define Critical Race Theory.
One of those bills, sponsored by State Rep. Ed Oliver, R-Dadeville, does not use the term “Critical Race Theory” and forbids teaching that one sex or race is any better than the other in public schools and throughout state government where it could be applicable, like team-building exercises or so-called diversity or sensitivity training.
What would happen if a schoolteacher defied the ban? Would he or she be subject to termination? What if the local school system fought the state?
Perhaps it would be different as an employee of the state, but still, with no punitive action resulting for violation of the law, what good is the law — other than, of course, making the grand political statement for the upcoming election cycle?
Five years from now, when a brave young school teacher seeks to teach what the media and pop culture have decided to define as the “truth” and defy the law, we are back to square one with lawmakers unwilling or incapable of correcting it.
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