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Smoking Not a Fundamental Right, Says Court

By Andrew Lu on November 12, 2012 | Last updated on March 21, 2019

A federal court of appeals found that smokers do not have the fundamental right to smoke.

The U.S. Court of Appeals for the Eighth Circuit upheld a smoking ban in city parks put in place by the City of Clayton in Missouri.

A visitor of the parks, Arthur Gallagher, challenged the city ban arguing that the law was unconstitutional. Gallagher, an avid smoker, asked the federal courts to recognize smoking as a fundamental right, therefore deserving strict scrutiny, reports The Wall Street Journal.

In his challenge, Gallagher argued that the ordinance unfairly targeted smokers. He claimed that other sources of air pollution like smoke from barbecues and exhaust from nearby vehicles were exempt from the law, while smokers were unfairly targeted. Gallagher also said that secondhand smoke outdoors did not pose a health hazard as the smoke dissipates in the air, reports the Journal.

First, the court did not agree with Gallagher that smoking was a fundamental right. As a result, the court found that the strict scrutiny test to review Clayton's lawsuit was not appropriate and used the rational basis test instead.

In its ruling, the court upheld Clayton's law saying that the city had a rational basis to restrict smoking. The court found that the city's law was reasonably tied to preserving and protecting the health, safety, and welfare of the public, writes the Journal. Had the strict scrutiny standard been used, the City of Clayton would have had to shown that there was a "compelling" government interest behind the smoking ban, and that the smoking ban was "narrowly tailored."

The court noted several studies cited by the city including a report by the U.S. Surgeon General saying that "there is no risk-free level of exposure to secondhand smoke." The court did not affirmatively agree that outdoor smoking is a health hazard, instead the court simply said that the City of Clayton was reasonable to believe this to be true.

This decision affirmed an earlier decision by the lower court which also ruled against Gallagher.

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