Smoking is not a right

On April 23, the Santa Maria City Council voted 3-2 against tobacco-free parks. After hearing the majority of speakers in support of a tobacco-free parks ordinance, the Santa Maria City Council voted against the proposed policy, which would have limited smoking to designated areas in the parks. Two of the arguments against the policy focused on individual rights and the winds in Santa Maria dissipating the harmful effects of smoke.

I find these arguments appalling and felt that the general public should hear the truth behind these arguments.

Let me start by stating that for two years the American Lung Association and other community partners have been polling the general public about tobacco-free parks, and 89 percent of Santa Barbara County residents have expressed a desire to have the local parks smoke-free (10 percent of those respondents were current tobacco users). Despite having this data, the Santa Maria City Council still voted against the ordinance.

Next, let’s tackle the myth that the winds in Santa Maria dissipate the harmful effects of secondhand tobacco smoke. Secondhand smoke is a Class A carcinogen that has been classified by the California Air Resources Board as a toxic air contaminant, and there is no safe level of exposure to it. Therefore, the simple reality is that any form of smoking in public is detrimental to the health and safety of our community! Let’s be honest with ourselves: If you can smell it, then you are breathing in the particulates, and it’s affecting your lungs. The facts are clear. There is no dispute. Secondhand smoke is toxic, even outdoors, and exposure to it should not be a condition of recreation and leisure.

Finally, there’s the issue of individual rights. Smoking is not mentioned anywhere in either the United States or California constitutions. Nevertheless, some people may claim that there is a fundamental “right to smoke.” These claims are usually made in one of two ways: (1) that the fundamental right to privacy in the state or federal Constitutions includes the right to smoke, or (2) that clauses in the state and federal constitutions granting “equal protection” provide special protection for smokers. Neither of these claims has any legal basis. There is no fundamental right to smoke.

The argument that someone has a fundamental right to smoke fails because only certain rights are protected by the Constitution as fundamental, and smoking is not one of them. 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.” These rights are related to an individual’s bodily privacy and autonomy within the home.

Proponents of smokers’ rights often claim that smoking falls within the fundamental right to privacy, by arguing that the act of smoking is an individual and private act that government cannot invade. Courts consistently reject this argument. The privacy interest protected by the U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children. Very few private acts by individuals qualify as fundamental privacy interests, and smoking is not one of them.

The second common constitutional claim made by proponents of smokers’ rights is that laws regulating smoking discriminate against smokers as a particular group and thus violate the equal protection clause of the U.S. or the California constitutions. No court has been 
persuaded by these claims.

The equal protection clauses of the United States and California constitutions guarantee that the government will not treat similar groups of people differently without a good reason. Certain groups of people—such as groups based on race, national origin, and gender—receive greater protection against discriminatory government acts under the U.S. and California constitutions than do other groups of people. Smokers have never been identified as one of these protected groups. Generally, the Supreme Court requires a protected group to have “an immutable characteristic determined solely by the accident of birth.” Smoking is not an “immutable characteristic,” because people are not born as smokers and smoking is a behavior that people can stop.

The equal protection clause not only protects certain groups of people, the clause also prohibits discrimination against certain fundamental “interests” that inherently require equal treatment. The fundamental interests 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 migrate interstate. Smoking is not one of these recognized rights.

There is no constitutional right to smoke. Claims to the contrary have no legal basis.

Donna Beal is the Santa Barbara-based regional program director for the American Lung Association of California.