There Is No Constitutional Right to Smoke

There is no constitutional right to smoke. Claims to the contrary have no legal basis. No court has ever recognized smoking as a fundamental right nor has any court ever found smokers to be a protected class. 1
The Constitutional “right to privacy” protected by the U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children.2
There are groups of people – such as groups based on race, national origin and gender – that receive greater protection against discriminatory acts under the U.S. and California constitutions than do other groups of people.3 Smokers have never been identified as one of these protected groups 4. Smoking is a behavior, not a condition of birth. 5 Smoking is not an "immutable characteristic" because people are not born as smokers; smoking is a behavior that people can stop.
“No Smoking” rules for apartment units are in the same legal category as “no pets” or “no loud noise” rules. They are legal policies that reduce property damage and protect tenants’ right of quiet enjoyment.

YES! YOU CAN CHOOSE TO MAKE YOUR BUILDING SMOKE- FREE!

1.   People who smoke are not protected by state and federal anti-discrimination laws.
2.   It is legal to advertise a unit (residential or commercial) as "smoke-free."
3.   It is legal to ask tenants to acknowledge in the lease or month-to-month rental agreement that they do not smoke and/or will not smoke in the unit they are renting.
4.   Over 84% of California adults do not smoke, and 80% of those still smoking want to quit.

The Smokefree Apartment House Registry is administered by S.A.F.E. (Smokefree Air For Everyone) and Community Partners, Los Angeles. Made possible by funds through the Proposition 99 Tax Initiative.

1 All citations compiled from "There Is No Constitutional Right to Smoke" an informational memo prepared by The Technical Assistance Legal Center (TALC), a project of the Public Health Institute. Full memo available at: talc@phi.org • (510) 444-8252.

2 Griswold v. Connecticut, 381 U.S. 479, 484 (1964); Meyers v. Nebraska, 262 U.S. 390 (1923); and Moore v. East Cleveland, 431 U.S. 494 (1977).

3 Brown v. Board of Education, 347 U.S. 483 (1954); Sugarman v. Dougall, 413 634 (1973) ; Craig v. Boran, 429 U.S. 190 (1976).

4 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973).

5 Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

This fact sheet was created to provide general information only and is not offered or intended as legal advice.

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