We’ve built our substantive due process analytical model, and with any luck you’ve had a chance to try it out. If not, no worries. The plan for this, the final installment in the substantive due process series, is to have a look at a simple fact hypothetical and to work it through the model. Following that, we’ll close with a couple of wrap up notes.
The City of Alpha enacted an ordinance that bans the use of tobacco products in restaurants, bars, and other places of public accommodation. Smith is an Alpha resident and a smoker. He files suit in an appropriate federal court challenging the ban on substantive due process grounds. How do we analyze this case, and what is the probable outcome?
Step 1: Does the Alpha ordinance implicate a fundamental right?
Our first step is to figure out if we’re dealing with a fundamental right, or with a garden-variety liberty interest. Recall that to do this, courts ask whether the liberty interest involved is deeply rooted in our nation’s history and tradition, such that it has enjoyed special protection under the law. While our nation has a long and unfortunate history of tobacco use and dependence, one can hardly say that it is as deeply rooted in our nation’s traditions as, say, marriage or raising a family. Smoking is, as a general rule, a lawful activity, so smokers are certainly at liberty to indulge, but calling the right to smoke fundamental is a stretch, at best.
Since the answer to this first question is no, the outcome of this hypothetical is straightforward. Alpha is free to regulate liberty interests like smoking as long as its regulation satisfies the rational basis test. Remember that on rational basis review, the law is presumed constitutional. It will be up to the challenger, Smith, to show that the ordinance is irrational. Does Alpha have a legitimate interest at work here? Of course. Smoking is dangerous to health, and not just the health of those who smoke. Medicine understands the risk of exposure to secondhand smoke. Safeguarding public health is absolutely a legitimate government interest; Smith will not convince the court otherwise.
Smith’s only remaining hope is to convince the court that the means Alpha chose – a complete ban on smoking in public places like restaurants and bars – is irrational. Smith will lose. The court will find that a ban on indoor smoking is rationally related to promoting public health. Because Smith cannot defeat either element – legitimate ends or rationally related means – Alpha’s ordinance survives constitutional review.
Just for fun, let’s assume that we decided the liberty interest to smoke in public places is a fundamental right. It isn’t, but let’s pretend. Were that so, we would continue to –
Step 2: Has Alpha substantially impaired the exercise of this fundamental right?
Here, we’re looking to see whether Alpha has directly and significantly interfered with the fundamental right to use tobacco products in public. If so, we continue with the model. But if it looks like this Alpha ordinance only incidentally touches upon the right in an effort to meet some other legitimate regulatory end, then there is no substantial impairment. You should be able to make arguments both ways. A complete ban on tobacco products in public establishments seems about as direct and substantial an impairment as there might be. But what if Alpha passed this ordinance as part of a group of laws designed to improve public health and safety? We then might say that the interference with this right is merely incidental to Alpha’s public health goal.
We’ve not hypothesized those additional facts here, so it seems fair to say that Alpha was aiming at the right to use tobacco products when it enacted the ordinance. Since the law substantially impairs this fundamental right, we move on to the next step.
Step 3: Can Alpha articulate a compelling interest to justify the ordinance?
Yes, it can. Alpha will claim that it wants to protect the public from the dangers of smoking, and in particular, from the dangers of secondhand smoke. Courts have said, many times, that protecting public health is a compelling government interest. And in any event, a court will be very reluctant to second-guess Alpha’s judgment that protecting public health is of paramount importance. We move on to the final step.
Step 4: Has Alpha selected the least restrictive means to accomplish its compelling interest in protecting public health?
Once again, you should see the arguments on both sides of this issue. Surely the public health doesn’t require that smoking be completely banned in all public venues. There are places where people congregate specifically for the purpose of smoking, like a cigar bar. A complete ban on an activity is rarely the least restrictive means of achieving some permitted end. And because we’re talking about a fundamental right, narrowly tailoring the limits on exercising that right is critical.
On the other hand, those who visit public places have a right to do so without needless risk to their health and safety. The only way to keep tobacco smoke out of those places is to ban it. There is no way to keep smoke from drifting from one part of a building to another. Stated a bit differently, there is no less restrictive way of making sure that unwilling patrons aren’t exposed to harmful or offensive smoke.
Reasonable minds can certainly differ, but on balance, it seems that a more narrowly-tailored, less restrictive solution is available that would meet Alpha’s interest just as well. Alpha could restrict smoking to enclosed spaces where the smoke cannot easily drift from one place to another. Or it could limit the effect of the ordinance to venues not specifically designed for patrons who want to smoke. Since less restrictive means are available to Alpha, this ordinance runs afoul of the substantive due process guarantee.
We conclude this series on substantive due process with a few notes. For starters, you should see that, even with an analytical model, this isn’t a black-and-white exercise. The law is rarely black-and-white; usually it is a world of varying shades of grey. That is to say: arguments matter, and sound, well-crafted arguments can carry the day. We’ll be doing a later series of posts on arguments and argument forms, so if that kind of thing interests you, stay tuned.
Second, please do keep in mind that our focus here has been on unemumerated liberty interests and fundamental rights that are protected by the due process clauses. The Constitution guarantees many other rights – speech and religion, for example – but the analyses used for those rights can and often do differ substantially. To make matters even more complicated, very often there will be a grab-bag of rights at issue in a particular case. Things can get really complicated, really quickly.
Finally, be aware that this isn’t a one-size-fits-all model. As suggested above, different rights may get different kinds of analyses. To take just one example, the due process guarantee safeguards a woman’s right to choose to have an abortion, and the Supreme Court has recognized this as a fundamental right. But we do not use our basic substantive due process analytical model to gauge the constitutionality of abortion restrictions. The Supreme Court has announced a different standard – the undue burden standard – that controls in those cases.
We’ve attached a flowchart, in PowerPoint format, that illustrates how this model works. If you check it out, ignore the first step on the flowchart (“Does the law classify persons, explicitly or implicitly?”) for right now. That’s a step we’ll add when we do our Learning the Law: Equal Protection series very soon. The second step on the flowchart should look familiar, and that’s where you’ll want to start.