Not Out There: Why Outdoor Smoking Bans Finally Pass Constitutional Muster

Collin D. Schueler, University of Kentucky College of Law

Collin D. Schueler, Note, Not Out There: Why Outdoor Smoking Bans Finally Pass Constitutional Muster, 15 Quinnipiac Health L. J. 127 (2011).


Hundreds of colleges and universities across the nation have enacted entirely smoke-free campus policies, both indoors and out, with no exceptions. Many rejoice in the thought of an outdoor smoking ban. Nevertheless, banning smoking outdoors is among "the most controversial of smoking restrictions.” Even some advocates of indoor smoking bans believe restrictions on outdoor smoking goes one step too far. Some argue that a total ban on smoking outdoors violates an individual's constitutional rights.

No court has ever recognized a fundamental constitutional right to smoke. Moreover, smokers are not considered a suspect class of individuals entitled to a heightened level of protection under the Equal Protection Clause of the federal constitution. Therefore, to withstand constitutional challenge, local and state laws banning or restricting smoking need only be rationally related to a legitimate government interest, such as promoting the public health.

Part I of this piece reviews the constitutional background and its application to smoking bans. Part II discusses the public health effects of indoor exposure to secondhand smoke and the lack of similar data outdoors. Part III analyzes a Stanford University study and its implications on outdoor smoking bans. The paper concludes that the door is closing to constitutional challenges to such restrictions.