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HomeMy WebLinkAboutCOM 0942.112 2006-2008 Page 1 of I Murashige, Laura From: George Massengale [george@tobaccofreehawaii.org] Sent: Monday, March 10, 2008 4:23 PM To: counciltestimony@co.hawaii.hi.us Subject: Testimony in Support of Bill 224, Hearing March 12, 2008, in Kona Attachments: Big Island Testimony_George_3.12.08.doc; No+Constitutional+Right+to+Smoke.pdf Please find our testimony with attachments on Bill 224. 1 will be testifying in person on this measure. Mahalo, George Massengale, JD Policy & Advocacy Director Coalition for a Tobacco-Free Hawaii, Inc. 1500 S. Beretania Street, Suite 309 Honolulu, HI 96826 808.946.6851. Ext. 204 CONFIDENTIALITY NOTICE: This information and any attachments are intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged and/or confidential. If the reader of this message is not the intended recipient, any dissemination, distribution or copying of this communication is strictly prohibited and may be punishable under state and federal laws. If you have received this communication and/or attachments in error, please notify the sender via e-mail immediately and destroy all electronic and paper copies. N a v w 0C? ~y fir r' r~ 3 cn N _ O Comm. 9 t. it Ref. To: Ref. to MA~ R 3/11/2008 / COAL ITION FOR A TOBACCO-FREE HAWAII Date: March 10, 2008 To: Hawaii County Council, Pete Hoffmann, Chair, K. Angel Pilago, Vice Chair Hearing Date & Time: March 12, 2008, 10:45 A.M. Ref: Bill 224 TESTIMONY IN STRONG SUPPORT Good morning Chair Hoffman, Vice Chair Pilago, and members Hawaii County Council. My name is George Massengale. I am the Policy Director of the Coalition for a Tobacco-Free Hawaii. Thank you this opportunity to again testify on behalf of the Coalition for a Tobacco-Free Hawaii, in strong support of Bill 224 that would prohibit smoking in all County Parks, Beaches, and Recreational Facilities. The Coalition is a statewide association of non-profit organizations, businesses, and 2,000 individuals committed to working together to reduce the negative impact of tobacco on the health of Hawaii's children, adults, and visitors. Many of our members live, work, and raise families on the Big Island. Last month when I testified before you, I heard a small number of individuals testifying in opposition of this Bill. Most of the testimony offered was framed in terms of "protecting their rights as smokers, and the unfairness" of the proposed ordinance. Although several of the testifiers were impassioned, the argument they put forward is completely without foundation or any legal basis. To assist me with my testimony today, I contacted the Tobacco Control Legal Consortium, which is part of the William Mitchell College of Law, St. Paul, MN. In the past they have provided our Coalition with legal technical assistance, and they prepared the law synopsis that I have attached to my submitted testimony. Laws limiting how and where people can smoke have survived legal challenges hundreds of times. Proponents of smoker's rights usually focus on two arguments. The first is a claim that smoking falls within the fundamental "right to privacy" by arguing that that the act of smoking is an individual and private act that government cannot invade. Courts have rejected this argument time and time 1500 S. Beretania Street, Ste. 309 • Honolulu, HI 96826 • (808) 946-6851 phone • (808) 946-6197 fax COALITION FOR A ((~~~ttt ///V TOBACCO -FREE HAWAII again, noting that the privacy interest protected by the U.S. Constitution include only marriage, contraception, family relationships, and the rearing and education of children. A second and equally unsustainable argument put forward, centers around "equal protection." They claim that no smoking law treats them as a group differently, thus they are being discriminated against. This argument like the first has failed, time and time again. Smokes are not a protected class and prohibiting smoking for public health and/or environmental reasons is a rational and legitimate government objective. Bill 224, is a rational and legitimate measure that will protect all individuals in the County of Hawaii for the hazards of cigarette smoke, such as asthma attacks in children and adults. At the same time it protects the Big Island's unique environments, parks, beaches, open areas, and forest, as well various threaten and endangered animals, birds, sea turtles, and mammals. I'll close by reiterating, "There is No Right to Smoke." Claims to the contrary have no legal basis and no court has ever recognized smoking to be a right. Bill 224 is a good bill. It will further enhance the State's Smoke-Free Law, protect vulnerable children and adults from unnecessary asthma and emphysema attacks, protect the Big Island's diverse and unique environments that offer critical habitats to many endangered species, and make the Big Island a more enjoyable place to visit, live, work and raise a family. It is time for this Council to the take the final step and pass Bill 224, and joint the 615 municipalities in the United States which have prohibited smoking in public outdoor places including parks and beaches. The benefits of having smoke-free outdoor facilities are many and the disadvantages, none. Thank you for allowing me to once again testify before you today. Sincerely, 7 George Massengale, JD Policy Director 1500 S. Beretania Street, Ste. 309 • Honolulu, HI 96826 • (808) 946-6851 phone • (808) 946-6197 fax i R t k w~u ~ d.x YN x.R ~XAA p j M r, i? % Y. 1 s ~ i}' ~ ~ ratan' 5 s i. ,aggY { t~a~+~ xr. Legal on ortiu M 1'. 4 r ~,A $ ii n 62^~eMh~ T !v Y,K1 9! u V 4A V. 41, k x fl ~ i ! nkl h a R~n lij~l ia~ M 1 u hX 48l~F F 3 y rC Yf*w ~~:a w°:te - ' P r ,A. e i§ i~ rv SwA S~ ~a 3 iAY } Yj ~ E Aa M . ~ e ~ I._ :.:SFr' 1 ~ eA~ 5X ~ M1. g 4^..AiS L rs.n~~+w _ ^,.rC.L~ A Law Synopsis by the Tobacco Control Legal Consortium There is No Constitutional Right to Smoke Samantha K. Graff July 2005 Suggested citation: Samantha K. Graff, Tobacco Control Legal Consortium, There is No Constitutional Right to Smoke (2005). Copyright © 2005 by the Tobacco Control Legal Consortium The Consortium can be reached at: E-mail: tobaccolaw@wmitchell.edu Web: www.tobaccolawcenter.org Tel: (651) 290-7506 There is No Constitutional Right to Smoke Samantha K. Graff Smoking is the leading cause of preventable death in the United States. More than 12 million premature deaths over the past 40 years were attributable to smoking.' Today, smoking causes approximately 440,000 deaths each year and results in over $150 billion in annual health-related economic losses.z Smoking not only injures nearly every organ of the smoker's body," but it inflicts considerable damage on nonsmokers. Exposure to secondhand smoke is estimated to kill more than 52,000 non-smokers in the United States each year.' In an attempt to limit the extraordinary harm that tobacco smoke inflicts on individuals and communities, advocates across the country are supporting enactment of state and local smoke-free laws. These advocates have seen their efforts rewarded with a wave of state and local workplace restrictions that prohibit smoking in offices, restaurants and bars.s Moreover, various cities have passed smoking restrictions that cover tar- geted locations, such as playgrounds, parks, beaches, and public transit vehicles.' In addition, some local government agencies, such as police and fire departments, have adopted policies requiring job applicants or employees to refrain from smoking both on and off the job.' Advocates promoting smoke-free legislation often encounter opponents who make the ominous legal- sounding argument: "You are trampling on my right to smoke." The purpose of this law synopsis is to debunk the argument that smokers have a special legal right to smoke. If there were a legal justification for a special right to smoke, it would come from the U.S. Constitution.' The Constitution lays out a set of civil rights that are specially protected, in that they generally cannot be abrogated by federal, state, county and municipal laws. Section I of this law synopsis explains that neither the Due Process Clause nor the Equal Protection Clause of the Constitution creates a right to smoke. As a result, the Constitution leaves the door wide open for smoke-free laws and other tobacco-related laws that are rationally related to a legitimate government goal. Section II highlights two types of state laws that may create a limited right to smoke. Section II shows that in the absence of a constitutionally protected right to smoke, advocates can seek to amend or repeal these laws, thus taking away any safeguards the laws af- ford to smokers. Section I -There is No Constitutional protection to smokers as a group. 'I'bis section Right to Smoke explains that neither of these claims is legally Key Points Constitutional rights are specially protected, so ¦ There is no such thing as a constitutional "right to that laws generally cannot take them away. If a law smoke," since the Constitution does not extend appears to interfere with a constitutional right, those special protection to smokers. whose rights are affected can challenge that law in ¦ Smoking is not a specially protected liberty right court A court will invalidate the law if it finds that under the Due Process Clause of the Constitution. the law improperly treads on a constitutional right. The fundamental right to privacy does not apply to smoking. Constitutional rights include the right to freedom of speech," freedom of religion,'' due process of law," Smokers are note specially protected category of people under the Equal Protection Clause of the and equal protection under the law"-- Constitution. The Constitution does not explicitly mention ¦ Since the Constitution does not extend special smoking. Therefore, if there were a constitutional right protection to smokers, smoke-free legislation to smoke, it would have to fall under the umbrella of need only be "rationally related to a legitimate one of the recognized constitutional rights. People government goal" who claim a right to smoke usually rely on one of ¦ Because there is no specially protected right to two arguments: (1) that smoking is a personal liberty smoke, tobacco control advocates can work to amend or repeal state laws that stand in the way specially protected by the Due Process Clause," or of tobacco control efforts. (2) that the Equal Protection Clause" extends special This synopsis is provided for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney. Laws cited are current as of June 1, 2005. The Tobacco Control Legal Consortium provides legal information and education about tobacco and health, but does not provide legal representation. Readers with questions about the application of the law to specific facts are encouraged to consult legal counsel familiar with the laws of their jurisdictions. 3 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 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 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 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 No Constitutional Right to Smoke 9 See U.S. CONST. amend. I. 10 See id. 11 See U.S. CoNST. amends. V, XIV. 12 See U.S. CoNST. amend. XIV. 13 See U.S. CoNST. amends. V, XIV. 16 See U.S. CONST. amend. XIV. 16 See U.S. CoNST. amends. V, XIV. 16 See John E. Nowak & Ronald D. Rotunda, CONSTITUTIONAL LAw 453 (7th ed. 2004). 1' See id. 16 See Griswold v Connecticut, 381 U.S. 479, 485-86 (1964). 19 See, e.g., id. at 465-86 (recognizing the right of married couples to use contraceptives); Meyers v. Nebraska, 262 U.S. 390 (1923) (recognizing the right of parents to educate children as they see fit), and Moore v East Cleveland, 431 U.S. 494 (1977) (protecting the sanctity of family relationships). 30 Fagan v. Axelrod, 550 N.Y.S.2d 552, 559 (1990) (internal citations omitted). 21 See, e.g., San Juan-Torregosa v Garcia, 80 S.W.3d 539 (Tenn. Ct. App. 2002) ("[T]he citizens of our state are af- forded a greater right of privacy by the Tennessee Constitution than that provided in the Federal Constitution...."), City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995) (discussed below). 22 Grusendorf v City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987). 23 See id. at 540. 21 to. at 541. 26 See id. at 542. The court relied heavily on the U.S. Supreme Court decision in Kelley v Johnson, 425 U.S. 238 (1976), in which the Court upheld a regulation regarding the style and length of hair, sideburns, and mustaches of male police officers. 26 See City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995). 2' See id. at 1026. 26 See id. 29 Id. at 1028. 30 See id. 31 See In re Julie Anne, 780 N.E.2d 635, 659 (Ohio Com. PI. 2002). 31 Id. at 656. U.S. CONST. amend. XIV. 34 See John E. Nowak & Ronald D. Rotunda, CONSTITUTIONAL LAw 453 (7th ed. 2004). 36 See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (addressing race); Sugarman v. Dougall, 413 U.S. 634 (1973) (addressing national origin); Craig v. Boran, 429 U.S. 190 (1976) (addressing gender). These groups share "an immutable characteristic determined solely by the accident of birth," Frontiero v. Richardson, 411 U.S. 677, 686 (1973), and often, a "history of purposeful unequal treatment" by the government. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313 (1976). Note that some groups that arguably are defined by an immu- table characteristic and a history of purposeful unequal treatment do not receive special protection under the U.S. Constitution. For example, groups based upon age and mental disability do not receive any special protections. See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (addressing age); City of Cleburne v Cleburne Living Center, Inc., 473 U.S. 432 (1985) (addressing mental disability). 16 Frontiero v. Richardson, 411 U.S. 677, 686 (1973). 37 The Equal Protection Clause not only protects certain groups of people but also protects certain rights that inher- ently require equal treatment. Smoking is not one of these recognized rights. The rights specially protected by the Equal Protection Clause include the right to vote, the right to be a political candidate, the right to have access to the courts for certain kinds of proceedings, and the right to travel interstate. See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (holding that improper congressional redistricting violates voters' equal protection rights); Turner v. Fouche, 396 U.S. 346 (1970) (holding that all persons have a constitutional right to be considered for public service), Shap- iro v. Thompson, 394 U.S. 618 (1969) (striking down a residency requirement for the receipt of state benefits as an equal protection violation). 36 Note that nonsmokers also are not recognized as a specially protected category of people, so equal protection claims brought by nonsmokers who are exposed to smoke in a place where smoking is permitted by law are un- likely to succeed if there is a rational basis for the law. 39 NYC C.L.A.S.H., Inc. v. New York, 315 F. Supp. 2d 461 (S.D.N.Y. 2004). 8 No Constitutional Right to Smoke 40 Id. at 480, 482. 11 Id. at 492. 42 See Rossie v. State Dept of Revenue, 133 W is. 2d 341 (1986). 46 to. at 353. 44 See Robin Hobart, Preemption - Taking the Local out of Tobacco Control, American Medical Association (2003) available at <http://www.smokelessstates.org/downloads/2003_Preemption.pdf > (visited on June 22, 2005). 11 See id. 46 See the Americans for Nonsmokers' Rights website, http://www.no-smoke.org/, see also American Lung Associa- tion, State Legislative Actions on Tobacco Issues-Summary Reports: Preemptive State Tobacco Control Laws and Affected Provisions (2005), available at http://Siati.lungusa.org/appendixe.asp (visited on June 22, 2005). 41 See the Americans for Nonsmokers' Rights website, http:/Iwww.no-smoke.org/. 48 For a list of states with "smoker protection laws," see the American Lung Association's website, available at http:// slati.lungusa.org/appendixf.asp (visited on June 22, 2005). 49 See, e.g., Miss. CODE. ANN. § 71-33 (2004) (making it "unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours'); Coro. Rev. STAT. § 24-34-402.5 (2004) (making it "an unfair employment prac- tice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibili- ties of a particular employee or group of employees, rather than to all employees of the employer, or (b) Is neces- sary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest"). s0 Many smoker protection laws contain some sort of exception allowing an employer to restrict off-duty smoking if the restriction relates to an essential aspect of the job. See, e.g., Coto. Rev. STAT. § 24-34A02.5, supra note 49; Mo. Rev. STAT. § 290.145 (2004) (making an exception when the off-duty use of tobacco products "interferes with the duties and performance of the employee, his coworkers, or the overall operation of the employer's business" and exempting "religious organizations and church-operated institutions, and not-for-profit organizations whose princi- pal business is health care promotion"). Some smokers argue that policies prohibiting employees from smoking both on and off the job violate the federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213 (2004). According to their rationale, smokers are protected from discrimination under the ADA because they are "disabled." However, the ADA explicitly states that "[n]othing in this chapter shall be construed to preclude the prohibition of, or the imposition of restrictions on, smoking in places of employment in transportation or in places of public accommodation Id. § 12201(b) (2004). Moreover, the only published case addressing the issue holds that smoking is not a disability within the meaning of the ADA. See Brashear v Simms, 138 F. Supp. 2d 693, 694-95 (D. Md. 2001) ("[A]ssuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as 'nicotine addiction' or not, is not a'disability' within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of 'disability,' which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and 'nicotine addiction' are readily remediable If the smokers' nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.") 62 See, e.g., Jacobson v Massachusetts, 197 U.S. 11, 25 (1905) ("According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."). 9 About the Tobacco Control Legal Consortium The Tobacco Control Legal Consortium is a national network of legal programs supporting tobacco control policy change by giving advocates better access to legal expertise. The Consortium's coordinating office, located at William Mitchell College of Law in St. Paul, Minnesota, fields requests for legal technical assistance and coordinates the delivery of services by the collaborating legal resource centers. Legal technical assistance includes help with legislative drafting; legal research, analysis and strategy; training and presentations; preparation of fiiend-of-the-court legal briefs; and litigation support. Drawing on the expertise of its collaborating legal centers, the Consortium works to assist cotmnunmes with urgent legal needs and to increase the legal resources available to the tobacco control movement. Page 1 of 2 Murashige, Laura From: George Massengale [george@tobaccofreehawaii.org] ET T Sent: Friday, March 07, 2008 11:44 AM 2008 MRR 10 FM 8 19 To: counciltestimony@co.hawaii.hi.us Subject: WE'RE ONE STEP CLOSER TO CREATING SMOKE-FREE BE,~i AND,?ARK4,gN THE BIG ISLAND You are receiving this email because the email address counciltestimony@co.hawaii.hi.us was subscribed to our email list. Having trouble reading this email? View it on our website. COALITION FOR A TOBACCO) - FREE HAWAII Aloha Supporter, Last month, many of you responded to our action alert to support the Big Island's effort to make their beaches, playgrounds and parks tobacco free. Thank you. The bill passed the second hearing and the third hearing has been set for Wednesday, w. March 12 in Kailua-Kona. a We are at a critical moment and you can.' make a difference b taking action today There are 131 county parks, recreational facilities, and beaches on the Big Island. This ordinance would make all these areas smoke free and create a healthier, cleaner, and more beautiful environment for our keiki, families and visitors. With your support, the Island of Hawai'i would become the State's first Island to have all county facilities smoke free. Please your email testimony to the County Council and let them know that you support [click _h_ere] the passing of this ordinance making Big Island parks, beaches, playgrounds, and recreational facilities smoke free. Mahalo George Massengale Policy Director 3/10/2008 Page 2 of 2 Coalition for a Tobacco Free Hawaii, 1500 South Beretania Suite 309, Honolulu HI 96826 Unsubscribe from this newsletter. 3/10/2008