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No Constitutional Right to Smoke that the regulation violated her right to privacy under In most instances, courts require that a the federal and state Constitutions 21 The court found discriminatory law be "rationally related" to a that "the `right to smoke' is not included within the "legitimate" government goal." This requirement penumbra of fundamental rights" specially protected is very easy- for the government to meet, since a by the U.S. Constitution." The court also found discriminatory law will be upheld so long as it is not that, although the fundamental right to privacy in the totally irrational or arbitrary. Florida constitution covers more activities than the in a certain set of cases, however, a court will fundamental right to privacy in the U.S. Constitution, apply a much stricter requirement. This happens when a job applicant's smoking habits are not among the a law discriminates against a category of people that activities specially protected by the state constitution's is entitled to special protection. The Equal Protection privacy provision."' The court ultimately upheld the Clause gives special protection to very few categories city regulation because it was rationally related to of people. In fact, it only extends special protection to the legitimate government goal of reducing health groups based on race, national origin, ethnicity, gender, insurance costs and increasing productivity. and (historically) illegitimacy" The groups that receive In a 2002 Ohio case involving custody and special protection share "an immutable characteristic visitation of an eight-year-old girl, the court banned determined solely by the accident of birth Because the girl's parents from smoking in her presence." The of this special protection, a law is likely to violate the court fisted pages of evidence about the harms of Constitution if it discriminates against a category of secondhand smoke, citing hundreds of articles and people based on race, national origin, ethnicity, gender, reports. The court proceeded to hold that smoking is or illegitimacy." not a specially protected constitutional right and that Some people argue that smokers make up a the fundamental right to privacy "does not include the category that deserves special protection against right to inflict health-destructive secondhand smoke discriminatory laws that restrict their ability to smoke upon other persons, especially children who have no at a time and place of their choosing. However, choice in the matter."'° smokers are not a specially protected group under the Constitution. Smoking is not an "immutable Smokers Are Not a Specially Protected Cat- characteristic" because people are not born smokers egory of People Under the Equal Protection and smoking, while addictive, is still a behavior that Clause people can stop. Since smokers arc not a specially The second constitutional claim frequently made protected group, a smoke-free law that "discriminates" by proponents of smokers' rights is that smoke- against smokers will not violate the Equal Protection free laws discriminate against smokers as a group Clause so long as the law is rationally related to a in violation of the Equal Protection Clause of the legitimate government goal.39 Constitution. No court has been persuaded by this Most state constitutions contain an equal claim. protection clause that nurrors the Equal Protection The Equal Protection Clause guarantees that Clause of the U.S. Constitution. Therefore, smokers' people are entitled to "equal protection of the laws."" rights proponents who challenge a "discriminatory The U.S. Supreme Court has interpreted this to mean law" limiting smoking also are unlikely to convince a that the government cannot pass laws that treat one court that smokers deserve special protection under a category of people differently from another category state equal protection clause. of people without an adequate justification. So, for A 2004 New York case illustrates how courts react example, a smoker might bring a lawsuit if he believes negatively to smokers' claims that they are a specially that a smoke-free workplace law violates the Equal protected group under the Equal Protection Clause. 19 Protection Clause because the law discriminates New York City and New York State enacted laws against smokers and in favor of nonsmokers without prohibiting smoking in most indoor places in order an adequate justification. to protect citizens from the well-documented harmful 5