There's No Fundamental Right to Smoke

By Robyn Hagan Cain on November 09, 2012 | Last updated on March 21, 2019

Arthur Gallagher is a Clayton, Missouri resident who regularly uses the city's parks and "ecstatically enjoys smoking tobacco products while doing so." Sadly for Gallagher, the Clayton Board of Aldermen enacted an ordinance prohibiting smoking "in or on any property or premises owned or leased for use by the City of Clayton, including buildings, grounds, parks, [and] playgrounds."

The ordinance established several exceptions, including allowing outdoor smoking on "streets, alleys, rights of way and sidewalks other than sidewalks and pedestrian paths in parks," but gave the City Manager discretion to prohibit smoking in these areas during "community events, fairs, festivals, neighborhood events and similar public gatherings."

So much for Gallagher's unbridled nicotine-driven ecstasy.

Gallagher, not one to be banished to back-alley smoking without a fight, sued the city and several officials challenging the ordinance as a civil rights violation under both the U.S. and Missouri Constitutions. He alleged that the ordinance:

  1. Failed rational basis review "because the health threat of secondhand smoke from outdoor tobacco use is de minimis,"
  2. Failed strict scrutiny review "because smoking is ... a fundamental right, and the ordinance is not narrowly tailored to protect that right,"
  3. Failed intermediate scrutiny review because "smokers are a quasi-suspect class due to discrimination and second class categorization."
  4. Failed heightened rational basis review because "the real purpose of the ordinance is to express animus toward smokers."
  5. Is unconstitutionally vague because it allows the City Manager unfettered discretion to "ban outdoor smoking at festivals and events"
  6. Denies smokers their Missouri Constitution ... liberty and pursuit of happiness rights."

The district court dismissed Gallagher's federal claims as facially implausible and declined to exercise supplemental jurisdiction over his state law claim.

The Eighth Circuit Court of Appeals affirmed the district court's decision on Thursday, The Wall Street Journal reports. According to the court, the city had a rational basis to restrict smoking in parks.

As it turns out, smoking is not a fundamental right. (We blame James Madison for this oversight.)

The appellate court also declined to declare a new fundamental right to smoke based on "tobacco's ancient traditions in American history" or the fundamental right to bodily integrity.

If you're looking to challenge a local smoking ordinance, we suggest staying away from the "fundamental right to smoke" route. Unless, of course, you're filing your claim in North Carolina.

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