Off-topic: Discrimination & Equal Protection

[WARNING: Much of this post is extremely academic. I apologize in advance.]

I would like to address a topic that I touched on in a previous post, the so-called discrimination against smokers. With smoking bans being passed nationwide, some people (including non-smokers) can't seem to get over the idea that the laws discriminate. Now, I will explain why this idea is wrong.

First of all, the word 'discrimination,' as it is used in this context, is defined as:

unfair treatment of one person or group, usually because of prejudice about race, ethnicity, age, religion, or gender (Encarta)

...and a 'prejudice' is:

a preformed opinion, usually an unfavorable one, based on insufficient knowledge, irrational feelings, or inaccurate stereotypes (Encarta)

Therefore, for a law to discriminate against smokers, it would have to treat smokers unfairly due to unfavorable, irrational opinions of lawmakers. But what constitutes a fair law? In the United States, laws that treat people equally are fair because the 14th Amendment of the Constitution prescribes legal equality in its Equal Protection clause, effectively outlawing the creation of state laws that treat people unequally:

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

So, how do smoking bans treat smokers unequally? They don't, because smokers and non-smokers must follow the same law; neither group is treated differently. It is the act of smoking that is banned--not the smoker.

A typical reaction to the above statement: "But can't we consider smokers to be a distinct class of people and infer that a smoking ban is basically a smoker ban?"

My answer: Sure, we can attempt to draw a line between smokers and non-smokers, but it wouldn't get us anywhere. The concept of the social smoker (or occasional smoker) makes this task difficult, but it also illustrates how people have a choice to smoke. This common choice is what qualifies smokers and non-smokers as inherently equal, and therefore disqualifies them from "unequal" protection of the smoking ban law. In other words, because even non-smokers have the choice to smoke, we cannot infer that a smoking ban is a smoker ban.

A follow-up reaction: "But nicotine addicts don't have a choice as to whether they smoke or not, so they may as well be considered a distinct class of people."

For some smokers, this is where my argument might get personal. If addictions actually disabled choice and made smoking a potentially permanent habit, they would necessitate distinct social classifications like those based on personal identity, traits and lifestyles that the law has recognized in the past. Most recently, for example, some states have begun to formally accept homosexuality, an immutable trait/lifestyle that was once discriminated against despite homosexuals' lack of choice in their sexual orientation. This is an unrealistic trajectory for smoking to parallel because the states are going the opposite direction with smoking bans. Plus, I feel that a comparison between nicotine addiction and homosexuality is offensive to make, further validating my point that smoking has no place in a discussion about discrimination.

The harsh reality is that addictions do not completely disable choice, and at one point in time, addicted smokers had a definite choice to start smoking. Call me unforgiving and naïve, but there have been plenty of cases in which long-time smokers have successfully quit smoking--which is the beauty in all of this--smokers can quit smoking.

"What about those smokers who don't want to quit and claim that their habit is part of their personal identity and interests?"

This is more of a 1st Amendment freedom of expression argument, which I recently wrote about. Furthermore, I doubt anyone would ever go so far as to say that their nicotine addiction is akin to a religious affiliation because arguments like this have failed at the Supreme Court level.

With regard to the 14th Amendment, however, the Supreme Court has upheld the equal protection of constitutionally protected rights, like the right to vote. The right to smoking is not constitutionally protected, and,

"If a government classification affects an individual right that is not constitutionally protected, the classification will be upheld if there is...a rational basis for it. So long as secondhand smoke regulations are enacted to further the government goal of protecting the public's health from the dangers of tobacco smoke, the regulation should withstand judicial scrutiny if challenged." --There is No Constitutional Right to Smoke

Finally: "Some people might have a genetic predisposition to nicotine addiction, so they should qualify as a distinct class of people that a smoking ban should accommodate."

This is debatable. Until it can be proven that some people have a natural affinity and need for nicotine, I stand by my argument that smokers cannot be discriminated against, especially when they have perfectly acceptable alternatives (e.g., smokeless tobacco) for satisfying their addictions.

Even if smoking bans were discriminatory, the "prejudices" that lawmakers are accused of harboring are surely not based on insufficient knowledge, and therefore aren't prejudices. There is plenty of scientific knowledge about the dangers of smoking and secondhand smoke that negates these accusations.