Honey, If We Pay You, I Can't Smoke (and Neither Can You)


Yesterday the Washington Supreme Court ruled that the state's smoking ban applies to private clubs as well as businesses open to the general public. Washington's Clean Indoor Air Act, passed in 1985, exempts "private facilities which are occasionally open to the public except upon the occasions when [they are] open to the public." An initiative approved by voters in 2005 broadened the ban to cover "places of employment." American Legion Post 149 in Bremerton challenged the Kitsap County Board of Health's attempt to stop its members from smoking at the post home, where all seven employees are relatives of members and all but one smoke, arguing that the exemption for private facilities remained in force. A five-judge majority of the state Supreme Court disagreed. Four judges dissented, with one of them, Richard Sanders, concluding that if the majority's interpretation of the law is correct, the law is unconstitutional:

I would hold the Act does not apply to the Post Home as a private facility.  Alternatively, if the Post Home's status as a private facility does not limit the Act's application, I would hold the Act is void for vagueness; unduly interferes with the Post Home's right of intimate association; violates the Post Home's substantive due process rights absent actual proof of a real and substantial relation between secondhand smoke and workplace dangers; and violates equal protection by distinguishing between two classes of business without reasonable grounds.

The equal protection argument is based on the smoking ban's exemption for "a private enclosed workplace, within a public place," which has some puzzling implications:

Suppose two taverns have a "private enclosed workplace" adjacent to the primary workplace.  This "enclosed workplace" is "private" in the sense that it is completely separated from the primary bar, work is performed there, and it is "intended for or restricted to the use of a particular person or group or class of persons : not freely available to the public." Now suppose the first bar is called "Moe's Tavern" and open to anyone, but the second is called "The American Legion Post Home" and only open to members. Smoking can occur at Moe's Tavern in its "private enclosed workplace" but it cannot occur at the American Legion Post Home in its "private enclosed workplace" simply because it is private? I can imagine no reason for this distinction, and I challenge the majority to posit one.

Sanders also notes that an American Legion member "may smoke with his wife at home but not at the Post Home because at the Post Home his wife is being remunerated for her time." The government is forcing this "workplace protection" on employees who do not want it:

The State imposes its coercive power on the members of the Post Home, not because there are people at the Post Home who do not want to be around smokers, but quite the contrary. Every member of the Post Home would prefer smoking be permitted at the Post Home, including the seven members who are also employees. Rather, the State imposes its coercive power on the Post Home notwithstanding the desire of those locked behind its private doors to prevent outside intrusion.

Quoting libertarian law professor Randy Barnett, Sanders argues that smoking at the post home falls into "a private domain within which persons may do as they please," which includes decisions such as whether to smoke, what to eat, how much to exercise, and when to go to bed. Unfortunately, legislators are happy to invade this private domain, and courts rarely stop them. If pot smoking can be prohibited not just in private clubs but in private homes, why not tobacco smoking? (In fact, local governments already are moving in that direction.) If trans fats can be banned, can't cheeseburgers? Nor do I see any difference in principle (although there is certainly a difference in degree) between forcing people to wear seat belts or helmets and forcing them to do calisthenics or go to sleep on time. 

Back in 2005, I noted the sweeping reach of Washington's smoking ban, although it almost looks lax compared to more recent smoke-free laws in places such as Calabasas and Belmont, California. In a 2007 reason article, I explored the totalitarian implications of public health.

[Thanks to Paul in Seattle for the tip.]