COM 0942.112 2006-2008 - Laserfiche WebLink

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No Constitutional Right to Smoke effects of secondhand smoke. The challenger argued The Constitution does not stand in the way of state that the smoking bans violated the Equal Protection or local laws limiting the ability of citizens to light up Clause because they cast smokers as "social lepers at a time and place of their choosing. by, in effect, classifying smokers as second class The Constitution, however, is not the end of the citizens The court responded that "the there fact story. Certain laws can create barriers to the enactment that the smoking bans single out and place burdens of new smoke-free legislation. At least two types of on smokers as a group does not, by itself, offend the state laws can impede a comprehensive smoke-free Equal Protection Clause because there is no basis agenda. These laws afford a limited right to smoke upon which to grant smokers the status of [a specially under certain circumstances unless and until the laws protected group]."" The court upheld the city and are amended or repealed. state smoking bans since they were rationally related to the legitimate government goal of protecting the Preemption public health. Often, the greatest barrier to a smoke-free agenda In a 1986 Wisconsin case, a court considered is a state law that preempts local governments in the an equal protection challenge to the newly-enacted state from passing legislation that goes farther than the state Clean Indoor Air Act" The Clean Indoor Air state in restricting smoking The tobacco industry has Act prohibited smoking in government buildings lobbied hard for state preemption of local smoke-free with the exception of designated smoking areas. A laws because it is much easier for the tobacco industry government employee sued, arguing that it would to wield influence with state legislatures than with violate the Equal Protection Clause for his employer locally elected officials." Such preemptive state laws to discipline him and his fellow smokers for smoking can be and frequently are loophole-ridden or otherwise on the job. Since smokers are not a specialkv protected ineffective at protecting the public from exposure to category, the court noted that "any reasonable basis secondhand smoke." for [distinguishing smokers from nonsmokers] will Currently, twenty-three states have laws that validate the statute. Equal protection of the law is either- totally or partially preempt local smoke-free denied only where the legislature has made irrational legislation." In those states, there is no constitutional or arbitrary [distinctions]"" The court upheld the right to smoke. However, unless and until the Clean Indoor Au Act, finding it was rationally related preemptive state laws are amended or repealed, local to the legitimate government goals of minimizing the governments in those states cannot pass laws that go health and safety, risks of smoking. beyond the state smoke-free laws." Advocates who * * * want to push local smoke-free legislation in those states Smokers are not specially protected by the must first work to get rid of state preemption. Constitution. A law that restricts smoking will not violate the Constitution so long as it is rationally related "Smoker Protection Laws" to a legitimate government goal. Courts are likely to In approximately thirty states, so-called "smoker uphold most smoke-free laws against due process and protection laws" are a small barrier to a smoke-free equal protection challenges, as long as these laws are agenda. Smoker protection laws prohibit employers enacted to further the legitimate government goal of from making employment decisions, such as hiring protecting the public health by aunnnizing the dangers and firing, based on off-duty conduct that is legal, of tobacco smoke. such as using tobacco during non-work hours and away from the job site." Some smoker protection laws Section II - Laws Cannot Grant an are specific to tobacco use, while others apply to all Irrevocable Right to Smoke legal off-duty conduct" Smoker protection laws are enacted to thwart the types of policies adopted by the The objective of this law synopsis is to clarify that Oklahoma City, fire department and North Miami city there is no such thing as a constitutional right to smoke. (discussed in Section 1) that forbid certain employees 6