COM 0942.112 2006-2008 - Laserfiche WebLink

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No Constitutional Right to Smoke valid. Since smoking is not a specially protected about reproduction and family relationships. Activities constitutional right, the Constitution does not bar that are specially protected under the fundamental right the passage of local, state, or federal smoke-free laws to privacy include marriage, procreation, abortion, and other restrictions on smoking. contraception, and the raising and educating of children." The fundamental right to privacy does not Smoking Is Not a Specially Protected Liberty include smoking. In the words of one court, "There or Privacy Right is no more it fundamental right to smoke cigarettes Proponents of smokers' rights often claim that than there is to shoot up or snort heroin or cocaine the government should not be able to pass smoke- or run a red-light"" free laws because smoking is a personal choice It is worth noting that in addition to the U.S. that falls under the constitutional right to liberty. Constitution, most state constitutions include however, the cons tint tionairight toliberty does not a fundamental right to privacy. 11) some state shield smokers from smoke-free legislation. constitutions-, the fundamental right to privacy is The Due Process Clause of the Constitution broader than that in the U.S. Constitution.''-' However, prohibits the government from depriving individuals a thorough search of case law reveals no current court of liberty without "due process of law."" This decision holding that smoking falls within a state means that a legislative body must have an adequate constitution's fundamental right to privacy. justification for passing a law that affects someone's in fact, several courts have specifically ruled that liberty. So, for example, a smoker might challenge smoking does not fall under a federal and/or state a smoke-free workplace law in court if she believes constitutional right to privacy-even where smoking in that the law violates the Due Process Clause because private is concerned. For example, in a 1987 Oklahoma it takes away her liberty by stopping her from case, a federal appellate court considered an Oklahoma stroking at work without an adequate justification. City fire department regulation requiring trainees to To assess whether a given law is based on refrain from cigarette smoking at all times.` The an adequate justification, a court will look at the lawsuit arose because a trainee took three puffs from individual and governmental interests at stake. The a cigarette during an off-duty lunch break, and he was criteria a court uses become more demanding as the fired that afternoon for violating the non-smoking individual interest at stake becomes more substantial. rule." 't'he trainee sued, asserting that "although there in most cases, courts require that a law be "rationally is no specific constitutional right to smoke, it is implicit related" to a "legitimate" government goal." This [in the Constitution] that he has it right of liberty or requirement sets a very low bar for the government: privacy in the conduct of his private life, a right to a law will be considered constitutional so long as the be let alone, which includes the right to smoke."" law is not compleudy irrational or arbitrary." The court disagreed and distinguished smoking from In some special cases, however, courts set a the specially protected constitutional privacy rights." much higher bar for the government. This happens Since smoking is not a fundamental privacy right, the when a law restricts a type of liberty that is specially court ruled that the regulation could remain on the protected by the Constitution. Very few types of books since it was rationally related to the legitimate liberty are specially protected by the Constitution. government goal of maintaining a healthv firefighting The "fundamental right to privacy I ' is one category force. of liberty that does receive special constitutional Similarly, in 1995, a Florida court considered a protection." Smokers' rights proponents latch North Miami city regulation requiring applicants for onto this fundamental right to privacy, arguing municipal jobs to certify in writing that they had not that smoking is a private choice about which the used tobacco in the preceding year.'-' The regulation government should have no say. However, the U.S. was challenged in court by an applicant for a clerk- Supreme Court has held only that the fundamental typist position who was removed from the pool of right to privacy relates to an individual's decisions candidates because she was a smoker. 17 She claimed 4