Life, liberty, and the pursuit of smoke free workplaces

Overheard at the Michigan House Office Building: "I have a fundamental right to smoke if I want to, damn government can't tell me what to do....It's my Constitutional right."
That statement is so wrong on so many levels, I don't know where to begin. But, as a professor once told me, when you're dealing with the Constitution, you've got to look at the context.

The House Regulatory Reform Committee held Round 2 of their public hearings on smoke free workplace law. The usual suspects were all there: doctors in favor of the ban, restaurant owners and casinos opposed to the ban, the Rep who is overwhelmingly supportive of the ban who nods approvingly while listening to testimony, the Rep who gets money from big tobacco and would only support the ban if tobacco control advocates could cough up some bucks. Contrary to what some folks think, public health advocates in Michigan (a) are not paid by pharmaceutical companies and (b) are not rolling in taxpayer cash.

The U.S. Constitution is the highest law of the land and it deserves more respect than it's being given. All that said, let me give you a crash course in Constitutional Law and why smoking (or allowing smoking in your restaurant, bar, casino, store, or VFW hall) is not one of your fundamental rights as provided by the Constitution.

People claiming a right to smoke rely on two main arguments: 1) smoking is a liberty guaranteed under a person's fundamental right to privacy; and/or 2) the Equal Protection clause protects smokers from "discriminatory" smoke free workplace laws. Don't be fooled by the casual legalese, these arguments are bunk, hooey, bull, and whatever other synonyms for NOT TRUE you can think of.

I. Fundamental Rights
The U.S. Supreme Court has held that "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in the guarantee of personal liberty."* Fundamental rights usually relate to an individual's privacy and autonomy over one's body and within one's home.

During the hearing yesterday, one of the business owners opposed to the ban argued that his choice to smoke a cigar on occasion was his "private individual right" that the government could not take. In fact, the Constitution only protects privacy interests related to marriage, contraception, family relationships, and the rearing and educating of children.** By contrast, courts have rejected smoking as a fundamental privacy interest.***

II. Smokers are not a protected group
Another opponent to the smoke free workplaces law claimed the law was "clearly discrimination" and "just plain wrong." Courts have repeatedly spurned the idea that laws regulating smoking discriminate against smokers as a particular group and violate the equal protection clause.

The equal protection clause serves as a guarantee that the government will not treat similar groups of people differently without good reason.¤ Certain groups of people are given greater protection against discriminatory government acts under the U.S. and Michigan constitutions.⌂ These groups are granted extra protections because they have "immutable characteristics determined solely by the accident of birth."· People are not born smokers and although it is a fierce addiction that can be incredibly difficult to overcome, it is a behavior, not an "immutable characteristic."

The equal protection clause also prohibits discrimination against fundamental "interests" that inherently require equal treatment. These fundamental interests include the right to vote, political freedoms (like political candidacy), the right of access to the courts for certain proceedings, and the right to interstate travel. Smoking, however, is nowhere on the list.

So what does this all mean? Well, if a government ordinance affects an individual right that is not constitutionally protected, the ordinance will be upheld so long as there is any reasonably conceivable set of facts that could provide a rational basis for the law. Smoke free workplaces have been proven to improve the quality of a state's overall public health. The overall welfare and betterment of public health is a legitimate government goal. Therefore smoke free laws are a legitimate and constitutional exercise of governmental authority.

Notes (These cases are available at either Oyez.org or the Michigan Courts' website)
*Roe v. Wade, 410 U.S. 113, 152 (1972)
**See Griswold v. Connecticut, 381 US 479, 484 (164 (married couples have right to contraception), Meyers v. Nebraska, 262 US 390 (parents' right to educate children as they see fit); Moore v. East Cleveland, 431 US 494 (1977) (sanctity of family relationships)
***City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla. 1995) (right to smoke not under penumbra of federal constitution's privacy provisions)
¤Ordinances are presumed constitutional and the burden is on the party challenging the ordinance to show that it is not rationally related to a legitimate governmental interest Alexander v. Detroit, 392 Mich. 30, 35-36 (1974)
⌂See Brown v. Bd. of Ed., 347 U.S. 483 (1954) (race); Craig v. Boran, 429 U.S. 190 (1976) (gender)
·Frontiero v. Richardson, 411 U.S. 677, 686 (1977)