Smoke rejecters

Jacob Sullum
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Posted: May 03, 2002 12:00 AM
Asked to comment on a New York City co-op board's recent decision to bar new residents from smoking at home, Dean Rouse used the strongest epithet he could think of. "It's unconstitutional," he told The New York Times. Rouse heads a national smokers' rights group called Friends of Tobacco. With friends like these, it's no wonder tobacco has been cast from the ranks of socially acceptable drugs and now hovers somewhere between marijuana and heroin. Invoking the Constitution against an action by a private organization betrays an ignorance not only of the law but of the principles that are the smoker's best defense against "public health" busybodies. If smokers want to be taken seriously when they say that bar and restaurant owners should be free to let customers smoke, they have to defend the property rights of people who prefer to go smokeless. That includes the shareholders of 180 West End Avenue in Manhattan, apparently the first co-op in the country to adopt a no-smokers policy. As the Times noted, co-ops are notoriously picky and intrusive, regulating "everything from the size of dogs to noise levels." This is part of their appeal. Julie Hughes Rothstein, a smoker who already lives at 180 West End Avenue (current residents are not covered by the new policy) predicted that the smoking ban would deter buyers. But the co-op board sees the rule as a "marketing tool for people who want to raise their children in a smoke-free environment." Similarly, while a restaurant that bans smoking may lose customers who like to light up after a meal, it may attract others who want to avoid secondhand smoke. The judgment as to whether the rule will, on balance, improve business should be left to the owner. In addition to claiming that her co-op's board members were acting against their own interest, Rothstein suggested that they were breaking the law. She did not elaborate, but Donna Lieberman, executive director of the New York Civil Liberties Union, did. "There are questions as to whether the rule would violate laws prohibiting discrimination in housing based on disability," Lieberman said. "Quite arguably, for many smokers, smoking is an addictive condition that would amount to a disability." Under the federal Fair Housing Act, which bars discrimination based on a "handicap," the disability has to be "a physical or mental impairment which substantially limits" a major life activity. It's doubtful whether breathing hard after climbing the stairs would count. Questions of statutory interpretation aside, this argument accepts the main premise underlying coercive anti-smoking measures: that smokers are helpless victims of a medical condition that compels them to keep lighting up. If smokers are prepared to embrace this position, they may as well turn control of their lives over to the surgeon general. More fundamentally, laws such as the Fair Housing Act represent just the sort of government meddling that threatens to leave smokers with no sanctuary. If the government can forbid co-op boards from discriminating against smokers, it can forbid restaurateurs from discriminating against people with respiratory ailments by failing to create a smoke-free environment. The confusion about what standard should be used to judge the co-op smoking ban is not limited to critics of the policy. Douglas Kleine, director of the National Association of Housing Cooperatives, at first cited Supreme Court decisions about government encroachments on privacy, then realized the cases had nothing to do with the issue at hand. "These are government actions," he told the Times, "and what you're looking at here is what actions a co-op board can take. This is much more of a private contract, and certainly the tendency of the courts is not to interfere with private contracts." Yet the courts permit the government to interfere in all manner of contracts that strike politicians as unfair, unwise or contrary to a very broadly defined "public interest." Try making a contract to pay someone less than the minimum wage, or to lease an apartment for more than a rent control law allows, or to sell a medicine without federal approval. Or, if you live in California, to hire a bartender who is willing to work in a smoky tavern. Smokers, of all people, should not be encouraging such infringements on liberty. Property rights and freedom of contract are especially important to unpopular minorities, who otherwise might have no escape from the tyranny of the majority.