Is There a Constitutional Right to Smoke in the Park?

Last week a federal appeals court rejected a constitutional challenge to an outdoor smoking ban in Clayton, Missouri, ruling that inhaling tobacco combustion products in public parks does not qualify as a "fundamental right."

Last week a federal appeals court rejected a constitutional challenge to an outdoor smoking ban in Clayton, Missouri, ruling that inhaling tobacco combustion products in public parks does not qualify as a "fundamental right." I tend to agree, although I am sympathetic to smokers facing unjustified restrictions on their freedom (the subject of my first book).

Arthur Gallagher, a Clayton resident who "regularly uses the City's parks and 'ecstatically enjoys smoking tobacco products while doing so,'" argued that the ban violates the 14th Amendment because it is not "narrowly tailored to serve a compelling state interest," as required for restrictions on fundamental rights under substantive due process analysis. The U.S. Court of Appeals for the 8th Circuit concluded that "Gallagher has failed adequately to demonstrate how the Ordinance would so threaten liberty or justice as to trigger strict scrutiny under the Due Process Clause of the Fourteenth Amendment." Although the Supreme Court has recognized a right to "bodily integrity" and a right to engage in certain "personal activities and decisions," the 8th Circuit said, "the alleged right to smoke in public is not so deeply rooted in the Nation's history and tradition, and it is not implicit in the concept of ordered liberty."

The court also did not buy Gallagher's alternative argument that the ordinance should be subject to "intermediate scrutiny" because "smokers are a quasi-suspect class due to discrimination and second class categorization." That left "rational basis" review, a standard so deferential that it virtually guarantees a challenged law will be upheld. Gallagher argued that the risk to bystanders from secondhand smoke in the open air is negligible and therefore cannot be considered a rational basis for Clayton's ordinance, which applies to "any property or premises owned or leased for use by the City of Clayton, including buildings, grounds, parks, [and] playgrounds." The city's Board of Alderman justified the ban on outdoor smoking by citing, among other things, Surgeon General Richard Carmona's 2006 declaration that "there is no risk-free level of exposure to secondhand smoke"—which, as I pointed out at the time, is a more akin to a religious belief than a scientific statement. But that does not matter, according to the 8th Circuit, because the city's aldermen did not need any evidence to support their belief that outdoor tobacco smoke poses a hazard:

Although the Board could have engaged in "rational speculation unsupported by evidence or empirical data" that outdoor secondhand smoke exposure harms health, the Board went further and relied on reports that "could…reasonably be conceived to be true." We need not determine whether outdoor secondhand smoke exposure  actually causes  harm. Because the  City reasonably could believe this to be true, the Ordinance survives rational basis review.

That gives you a sense of how demanding the "rational basis" test is.

I agree with Gallagher that the city's ordinance goes too far, especially given the dearth of evidence that his smoking in the park would endanger anyone's health. But I find government-imposed restrictions on smoking in privately owned indoor spaces such as bars and restaurants much more troubling than rules against smoking in publicly owned outdoor spaces. In the former case, the government is telling people how to use their own property, while in the latter case it is managing public property on behalf of taxpayers, who include smokers as well as nonsmokers. In this case the city did not balance the interests of those two groups very well (or at all, really), but that does not mean the Constitution requires it to try again.