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Show Amendments to the Utah Clean Air Act - Smoking In Private Establishments: Protected Right or Public Threat? Logan Sisam Dr Fox's assertion leads to the idea that most of those allegations are propagated by the Tobacco Industry, and lack the objectivity and credibility necessary to be trusted. Constitutional Claims Opposing the Amendments The benefits of the amendments seem to be endless, yet there are some potential implications that need to be addressed. Smokers and club owners contend the regulations on smoking are contrary to five basic constitutional rights: Equal Protection, Right of Association, Due Process, Privacy, and the Takings Clause. Equal Protection Groups opposing smoking legislation believe their strongest argument is that of Equal Protection. The Fifth and Fourteenth Amendments to the United States Constitution guarantee all persons equal protection of the law. Equal protection challenges to smoke free ordinances fall into two categories: the equal protection of smokers and equal protection of business owners. Both arguments are based on the ill-conceived premise that smoke-free ordinances somehow "discriminate" against smokers or business owners. Smokers have challenged smoke-free ordinances on the basis that they cater to the wishes of nonsmokers. These arguments are best described in the New York case Fagan v. Axelrod. The plaintiff, Fagan, argued the New York Clean Indoor Air Act "curtails access by the subordinate class (smokers) to places of public accommodation by reasons of their personal habits.... forces the subordinate class to work in a smoke-free environment" and "discriminates against members of the subordinate class on the basis of a physiological impairment (nicotine addiction)" (N.Y. Sup. Ct. 1990). The New York Supreme Court held that these claims were without merit for two reasons. First, the classification of smokers does not infringe on a fundamental right. In fact, no court has determined that smoking is a fundamental, constitutionally protected right. The court in Fagan v. Axelrod states "there is no more a fundamental right to smoke cigarettes than there is to shoot-up or snort heroin or cocaine" (Fagan v. Axelrod, 1998 550 N.Y.S.2d at 560). A right is fundamental "if it is deeply rooted in our Nation's history and tradition or so ingrained in concept of ordered liberty that neither justice nor liberty would exist if it were impaired" (Washington v. Glucksberg, 1997). For example, freedom of the press and the right to vote are fundamental rights under the U.S. Constitution. Smoking is not. The court concluded that smokers are not a "suspect" classification under the law, and that smoke free ordinances do not violate the Equal Protection Clause of the U.S. Constitution. A law can treat one group of individuals differently than others as long as there is a rational basis for the dis- tinction, and the group affected is not part of a suspect class. Classifications that are considered suspect are those that "share a common element-an immutable characteristic determined solely by the accident of birth," (Fagan v. Axelrod, 1998 550 N.Y.S.2d at 560), such as race, national origin, sexual orientation or gender. Most importantly, the court in Fagan v. Axelrod stated that: "if the classification is not suspect or does not involve a fundamental right, as is the case with smokers, a presumption of constitutionality attaches to the classification being analyzed, and the challenging party must prove that the classification is not related to a legitimate government purpose" (Fagan v. Axelrod, 1998 550 N.Y.S.2d at 560 ). This is further evidence that courts have consistently held that protecting people from exposure to secondhand smoke furthers a legitimate government purpose to enact nonsmoking laws. The Right of Association Attorney Philip W. Dyer addressed the right of association in a letter given to all Utah legislators during the 2005 and 2006 General Sessions: Such bans.......substantially harm private club licenses' property rights by precluding business owners from welcoming their members who may choose to use a lawful product. Since private club owners can, under the original law, choose to be a "smoke free" club, such bills constitute a mandate prohibiting the use of a lawful product in a private facility " (Dyer, 2005). However, the findings of the courts on the issue of equal protection have a domino effect on the other three legal arguments. Contrary to smokers' assertions, the Court in Fagan determined that laws restricting or prohibiting smoking do not restrict smokers' access to public places, only their ability to smoke in those places. Moreover, since the Fagan case established that smoking does not raise to the level of a fundamental right, the right of association is not impaired. Due Process Smokers and owners of taverns, clubs and bars have claimed the legislation spreading across the United States is in direct violation of their right to due process. The Due Process clause of the U.S. Constitution provides that the government may not deprive one of a constitutionally protected liberty interest or property interest without due process of law. Substantive due process protects against governmental interference with liberty interests, also referred to as fundamental rights. Courts are extremely reluctant to expand substantive due process protection to other "asserted rights or liberty interests" (Washington, 521 U.S. at 720). Due process protection is afforded to those rights and liberties "deeply rooted in this Nation's history and tradition," so much so that "neither liberty nor justice would exist if they were sacrificed" (Washington, 521 U.S. at 720). The 10 |