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No Constitutional Right to Smoke from smoking at any time. existing laws that harm the public health despite clanns Smoker protection laws are not as protective as by their opponents invoking a right to smoke. So long they sound. They do not create a right to smoke. as proposed smoke-free legislation is rationally related Nor do they give people license to smoke anywhere to a legitimate government goal, the Constitution will at anytime. Instead, they merely assure some smokers not stand in the way of its passage. Courts are quick that their employers will not consider their off-duty to find that smoke-free legislation is rationally related tobacco use when making employment decisions, to a legitimate government goal, since they have long if advocates in states with smoker protection laws held that protecting the public's health is one of the want to promote policies similar to those adopted by most essential functions of government." the Oklahoma City fire department and North Miami city, they must find an existing exception in die smoker About the Author protection laV" or must lobby to amend or repeal the smoker protection law" Samantha K. Graff is a Staff Attorney at the s:* Technical Assistance Legal Center (TALC), a project Some states have laws that act as roadblocks to of the Public Health Institute in Oakland, California. effective smoke-free legislation. However, advocates This synopsis is based on a shorter document written can work to amend or repeal those laws with confidence on the same topic for a California audience by Edward that their opponents cannot argue successfully that the Bolen, a former TALC Staff Attorney. 'fhe author advocates are trying to trample on a specially protected would like to thank her colleagues at TALC for their right to smoke. valuable input on this law svnopsm Conclusion The so-called "right to smoke" is actually a smokescreen. There is no constitutional right to smoke. Therefore, advocates are free to seek enactment of new smoke-flee laws or the amendment or repeal of Endnotes See U.S. Dep't of Health and Human Servs., Centers for Disease Control and Prevention, The Health Conse- quences of Smoking: AReport of the Surgeon General 13, available at <http://www.cdc.gov/tobacco/sgr/sgr_2004/ index.htm> (visited on June 22, 2005). 2 Id. at 14. ' Id. at 8. L See S.A. Glantz & W. Parmley, Passive Smoking and Heart Disease: Epidemiology, Physiology, and Biochemistry, 83(1) Circulation 1 (1991); see also California Environmental Protection Agency, Office of Envti. Health Hazard Management, Health Effects of Exposure to Environmental Tobacco Smoke: Final Report (1997). 5 As of July 7, 2005, 397 municipalities and eleven states had enacted laws requiring 100 percent smoke-free work- places and/or restaurants and/or bars. See American Nonsmokers' Rights Foundation, Overview List- How Many Smokefree Laws?, available at <http://www.no-smoke.org/pdf/mediaordlist.pdf > (visited on July 12, 2005). 6 As of July 7, 2005, a total of 1,900 municipalities had local laws in effect that restrict where smoking is allowed. Note that this figure includes the 397 municipalities that have passed laws requiring 100 percent smokefree work- places and/or restaurants and/or bars. See American Nonsmokers' Rights Foundation, Overview List- How Many Smokefree Laws?, available at <http://www.no-smoke.org/pdf/mediaordlist.pdf> (visited on June 22, 2005). ' For examples of two such policies, see Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987) and City of North Miami v Kurtz, 653 So.2d 1025 (Fla. 1995) (discussed in Section 1). a This Synopsis focuses on the U.S. Constitution. As discussed in Section 1, a very similar analysis applies to state constitutions. 7