Hot Docs: Smokers not a “suspect class,” appeals court rules

November 15, 2012

Smoker protestThese past two weeks, we’ve been talking about the significance of Windsor v. U.S.

More specifically, how the Second Circuit ruling defined homosexuals as a quasi-suspect class, which requires laws discriminating on the basis of sexual orientation to undergo a heightened level of scrutiny to justify this discrimination.

Last week, a different group – smokers – failed to secure the same constitutional protections.

In Gallagher v. City of Clayton, a ruling out of the Eight Circuit Court of Appeals, the court held that there was no fundamental right to smoke outdoors on public property, smoking was not part of existing fundamental right to bodily integrity, and that smokers were not a suspect or quasi-suspect class.

That’s a lot to take in all at once, so let’s break it down.

First, a “fundamental right” is one unenumerated in the Constitution, but is “objectively, deeply rooted in this Nation’s history and tradition” such that “neither liberty nor justice would exist if [it] were sacrificed.”

In other words, “fundamental rights” are an implied deprivation of liberty prohibited by the Due Process clause of the Fourteenth Amendment.

Examples: the right to marry, to vote, and to bodily integrity.

Arthur Gallagher, an individual who “ecstatically enjoys smoking tobacco products” while using the city parks, sued the City of Clayton, Missouri, claiming that its various anti-smoking ordinances infringed on his fundamental right to smoke.

But, as stated above, the court didn’t buy it.

Hot Doc: Gallagher v. City of Clayton

Source: Thomson Reuters News & Insight – National Litigation

Gallagher also argued that the right to smoke is an extension of the fundamental right to bodily integrity, which gives individuals the right to do such things as refuse medical treatment.

The court was, again, unconvinced.

Next, Gallagher argued that smokers are a suspect or quasi-suspect class due “to discrimination, animus, stigma and second class characterization.”

If this argument were accepted by the court, anti-smoking ordinances across the country would be in jeopardy.

Unfortunately for Gallagher, the court, yet again, remained unpersuaded.

In order to be considered as a “suspect class,” a court must find that members of the class share some immutable characteristic, require special protection by the courts because of “vast discrimination” or political powerlessness.

Although Gallagher indeed argued that smokers were all of these things, the court just didn’t buy it.

Perhaps, as Gallagher argued, smokers feel “persecuted;” however, even assuming smokers are politically powerless, being a smoker is not an immutable characteristic.  Just ask anyone who has quit.

This wasn’t even the end of Gallagher’s argument, though.

He also claimed that the city’s smoking ordinances couldn’t even survive the lowest level of scrutiny, rational basis, which only requires that there be “any reasonably conceivable state of facts that could provide a rational basis” for the law’s discrimination.

According to Gallagher, the city’s stated rationale of improving public health by reducing secondhand smoke “is plainly false” because secondhand smoke dissipates quickly outdoors (and therefore poses no health risk to the public).

In addition, Gallagher also contended that the ordinances are underinclusive because they fail “to also ban other sources of air pollution that could harm the public health, such as smoke from barbeques or exhaust from nearby vehicles.”

Sadly for Gallagher, “rational basis” review is the government’s free pass in court, since, like the city’s laws here, virtually every law survives the test.

However, the major exception here is when the challenged law has no other purpose than to express animus toward a particular group of people.

As you’ve probably predicted by this point, Gallagher also argued that the city’s sole motivation in passing these anti-smoking laws was to make the lives of local smokers worse.

The court again dismissed these arguments, holding that there were legitimate government interests behind the law, so government animus toward smokers, if any, was not the sole motivation behind the laws.

And in fact, Gallagher’s attempts to lump smokers into the same category as groups truly the subject of historic discrimination that are currently fighting for legal rights (i.e. the LGBT community) could be considered somewhat offensive.

If this opinion is of any indication, however, the courts don’t believe that there’s any comparison between the former group and the latter.