March 2013 - Parks & Recreation - 24

L AW R E V I E W

the constitutionality of a law or ordinance, federal courts will apply one
of three standards of judicial review:
strict scrutiny, intermediate scrutiny,
or rational basis.
Strict scrutiny is the most demanding level of judicial review for governmental regulations that impact
a suspect class (i.e., a classification
based upon race, creed, color, or religion) or a fundamental right (i.e.,
those rights guaranteed in the Bill of
Rights). To pass constitutional muster, when strict scrutiny is applied by

Blowing Smoke
Gallagher is a resident of the City of
Clayton, Missouri, who regularly uses
the City's parks and " ecstatically enjoys smoking tobacco products while
doing so. " On August 24, 2010, the
City's Board of Aldermen enacted
Ordinance 6118 prohibiting the " possession of lighted or heated smoking
materials in any form...in or on any
property or premises owned or leased
for use by the City of Clayton, including buildings, grounds, parks, [and]
playgrounds. "

The federal appeals court found the right to smoke
" does not fall within the 'liberty' that is specifically
protected by the Due Process Clause. "
a federal court, the government must
demonstrate that a regulation is narrowly tailored and applies the least
restrictive means to achieve a compelling governmental interest.
In between strict-scrutiny review and
rational-basis test, federal courts will
apply " intermediate scrutiny " to determine the constitutionality of a law or
regulation that creates a quasi-suspect
classification, e.g., gender. To pass constitutional muster under the intermediate-scrutiny standard of judicial review,
the challenged governmental law or
regulation must further an important
governmental interest by means that are
substantially related to that interest.
The rational-basis test is the least demanding standard of judicial review
for governmental regulations. When
no suspect class or fundamental right
is being regulated, federal courts will
apply the least demanding rational basis to determine the constitutionality
of a governmental regulation. To pass
constitutional muster under the rational-basis test, the government must
simply demonstrate that the challenged
law or regulation is rationally related to
a legitimate government interest.
22

Parks & Recreation

The ordinance established several exceptions, including allowing
outdoor smoking on " streets, alleys,
rights of way, and sidewalks other
than sidewalks and pedestrian paths
in parks. " The ordinance, however, gave the city manager discretion
to prohibit smoking in these areas
during " community events, fairs,
festivals, neighborhood events, and
similar public gatherings. " The board
cited public health and safety, litter
reduction, and aesthetic rationales
for enacting the ordinance.
On March 2, 2011, Gallagher sued
the City and several city officials under 42 U.S.C. § 1983, alleging the ordinance unconstitutionally prevented
him from smoking outdoors in city
parks. On June 1, 2011, the federal
district court granted the City's motion for summary judgment, " dismissing Gallagher's federal constitutional claims as facially implausible. "
Gallagher appealed.
Fundamental Right?
On appeal, Gallagher contended " the
district court erred in dismissing his
claim that smoking outdoors consti-

| MARCH 2013 | WWW.NRPA.ORG

tutes a fundamental right warranting
strict scrutiny of the Ordinance " and
the ordinance was " not narrowly tailored to protect that right. " In so doing, Gallagher argued the court should
have declared smoking " a new fundamental right because of tobacco's ancient traditions in American history. "
Gallagher, however, conceded that " no
court has adopted his position. "
As described by the federal appeals
court, " [t]he doctrine of substantive
due process protects unenumerated
fundamental rights and liberties under the Due Process Clause of the
Fourteenth Amendment " :
A fundamental right is one which
is, objectively, deeply rooted in this
Nation's history and tradition, and
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed.
Legislation infringing a fundamental
right must survive strict scrutiny-the
law must be narrowly tailored to serve
a compelling state interest.
Despite the " many examples of
smoking's prevalence throughout
American history " identified by Gallagher, the federal appeals court declined " Gallagher's invitation to declare smoking a fundamental right. "
In so doing, the court noted the lack
of " any sound legal argument or authorities " supporting a " claimed constitutional right to smoke " and " no
relevant authority supported these
rights under any theory. " As a result, the federal appeals court found
Gallagher had " failed adequately
to demonstrate how the Ordinance
would so threaten liberty or justice
as to trigger strict scrutiny under the
Due Process Clause of the Fourteenth Amendment. "
In the opinion of the federal appeals court, regulating the right to
smoke was " better left to the people
acting through legislative processes "
than creating a " judicial remedy " in

March 2013 - Parks & Recreation

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