How is the reservation supposed to bring equality?

Freedom for vaccinated people: Equal rights only for equals

Those who do not pose a risk of infection must get their freedom back. Ultimately, it is also about the signal that the restrictions are finite.

Prick into freedom. Denying vaccinated basic rights is constitutionally unacceptable Illustration: Katja Gendikova

Calling freedoms for Covid-19 vaccinated persons as “special rights” or “privileges” is misleading and wrong from a constitutional point of view. Freedom is the norm, but restrictions are the exception that must be specifically justified.

So if corona-related restrictions are lifted and freedoms are granted again, it is by no means about granting “special rights” or “privileges” - even if these freedoms are initially only granted to a single group of people. Nothing else applies to the principle of equality in the constitution. This merely prohibits the unequal treatment of essentially the same.

If vaccinated persons do not pose a potential health risk, but unvaccinated persons do, vaccinated and unvaccinated persons are not essentially the same and can therefore be treated differently. The situation is different if vaccinated, convalescent and negatively tested people are not granted the same rights of freedom. They are essentially the same and therefore the same freedoms should apply to them from the point of view of equality.

This applies with the proviso that all three groups are scientifically proven to be non-contagious and therefore do not pose a health risk. The current debates about “special rights” or “privileges” for vaccinated persons also refer to the categories of solidarity and justice, which in turn play no role under constitutional law. The Basic Law should also be a just order.

No privileges

The fundamental rights protection is, however, realized in the categories of freedom and equality. Not every political debate has to be a constitutional one at the same time. It can even unnecessarily inhibit a debate if a measure is prematurely referred to an “unconstitutional” which cannot be clearly identified and which is to be discussed. Whether a measure complies with the constitution is also part of the political process anyway.

At the latest when it comes to legislation, the state authority must align its actions with the constitutional requirements. The courts check whether this obligation is observed. As soon as a political demand finds its way into the legislative process, constitutional arguments are discussed anyway. The same goes for laws restricting freedom that are already in force.

They have to be checked again and again for their compatibility with the Basic Law. If, for example, scientific findings change, these laws may be repealed or amended under constitutional law. This means: At the moment when it has been scientifically proven that people who have been vaccinated against Covid-19 cannot infect others, the restriction of civil liberties must be scrutinized. Restrictions on fundamental rights are allowed.

In addition to containing the pandemic, compulsory seat belts in the car or imprisonment are also encroachments on the right to freedom. However, any restriction presupposes that the measure is proportionate, i.e. suitable, necessary and appropriate. At present, the restrictions on freedom affect all citizens indiscriminately. The regulation is based on the assumption that everyone can pose a health hazard to the same extent.

Everyone should wear a mask

But: If this assumption no longer applies to individual groups of people - for example for vaccinated persons - the restrictions on freedom according to constitutional standards are no longer necessary. It is somewhat different with the mask requirement. The following applies here: The restrictions can remain in place if otherwise the situation could not be controlled or could hardly be controlled. In reality, it would not be feasible to screen everyone who does not wear a mask or who does not keep the minimum distance.

In addition, there is a comparatively low level of interference with fundamental rights. Requiring vaccinated persons to adhere to the rules of distance and hygiene is therefore not constitutionally questionable. Terms such as “special rights” and “privileges” are inappropriate not only under constitutional standards.

In order for political decisions to be accepted by the population, it is important that incorrect terms are not used in the decision-making process. Particularly in times of pandemics, political communication must aim to ensure that the decisions cast in legal form are understandable and plausible for the population. This communication must be aimed at promoting acceptance of the measures taken.

Acceptance is an essential prerequisite for fighting the pandemic, but also for trust in the state - both aspects are definitely related. With the argument of not wanting to endanger the cohesion of society, the debates about the lifting of restrictions on freedom for vaccinated persons were initially postponed or conducted with great reluctance.

But since the Robert Koch Institute has confirmed that vaccinated people do not pose a threat, the debate has become inevitable. It should not only be conducted openly, but also from the perspective of constitutional law. Particularly in an open debate, terms such as “special rights” or “privileges” can of course be used.

Grant freedom rights

However, it should be clear to everyone involved that they are by no means value-neutral and rather inhibit a solution-oriented discussion. Social solidarity is often referred to as an argument against the restoration of freedoms. Those who have already been vaccinated should show solidarity with those who are waiting for the vaccination. This solidarity cannot be grasped by constitutional standards.

Above all, however, solidarity - especially a forced one - is not a justification or an acceptable justification for maintaining restrictions on freedom. Interestingly, solidarity is demanded from vaccinated people mainly because it is assumed that non-vaccinated people would perceive it as unjust if rights of freedom were given back to the immunized. But is that even true?

Doubts are appropriate, and in any case resentment and envy would have to be accepted from a constitutional point of view. If Covid-19 genesis or those tested negatively are included in the restoration of freedoms, the actual inequality of treatment is to be regarded as marginal anyway. What is more, granting freedom rights again - even if it initially only applies to those who have been vaccinated - can even give society hope again.

It shows that the limited pandemic life does not have to become permanent. In this way, the restoration of freedoms can promote the acceptance of restrictions. It also helps to save industries that are particularly affected by the restrictions - artists, gastronomy, tourism, for example - and thus in turn serves the interests of society as a whole.

Seen in this way, solidarity also has other aspects that also belong in the debate. Last but not least, this is dictated by the constitutional directives. Not only those who have been vaccinated, but also those who are currently not allowed to offer their work, can invoke their basic rights and - also before the courts - demand their reinstatement, provided the restrictions are no longer necessary and appropriate.

Solidarity in the pandemic assumes in any case that the people in the country are aware that if civil liberties are reinstated, it is not about “special rights” or “privileges”. In the case of a vaccinated person, the reason for the restrictions on constitutional rights simply no longer exists. The rulers cannot justify interfering with fundamental rights.

That is why, from a legal point of view, there cannot be a lack of solidarity when a great good such as freedom for vaccinated people applies again. A person who demonstrably cannot infect anyone with the coronavirus does not pose a health risk. From a constitutional perspective, it is absolutely imperative to lift the restriction on the rights of freedom.

If this creates inequalities that are constitutionally unobjectionable, but are perceived by the population as unjust, the political decision-makers are faced with a major challenge. You are responsible for ensuring that people accept the measures and that neither trust in the state nor social cohesion suffer. It is not an easy task.

It can only succeed if debates are conducted openly and the constitutionally inapplicable and highly judgmental terms such as “special rights” or “privileges” are dispensed with.