There Is No Constitutional Right to Smoke (CA Version)

There Is No Constitutional Right to Smoke (CA Version)

A legal memo about the status of smokers

Laws that limit how and where people may smoke should survive a legal challenge claiming that smoking is protected by the state or federal constitution. Smoking is not mentioned anywhere in either constitution.

Claims that there is a fundamental right to smoke are usually made in one of two ways: (1) that the fundamental right to privacy in the state or federal constitution includes the right to smoke, or (2) that clauses in the state and federal constitutions granting equal protection provide special protection for smokers.

Our legal memo explains why neither of these claims has any legal basis. A state or local law limiting smoking usually will be judged only on whether the law is rational, or even plausibly justified, rather than the higher legal standard applied to laws that limit special constitutionally protected rights. You may also be interested in There is No Constitutional Right to Smoke (National Version).