Troubles in cigarette banning

The debate about a piece of legislation that would introduce a statewide smoking ban to Indiana saw compromise just before spring break when the state senate passed a watered-down version of the bill exempting bars and casinos.

But even with the compromise, the new bill, which was signed into law by Gov. Mitch Daniels on Monday morning and will go into effect July 1, still does little to address concerns about private property rights.

We must be wary anytime the government expresses an interest in telling property owners what they can and cannot do and allow on their property — especially when it comes to otherwise perfectly legal things such as smoking.

Superficially, a smoking ban might sound like a good idea. People hear “no more smoking in public places” and think, “Wow, that’s a good thing. Smoking is bad. I support that.”

However, government mandates such as this could set a precedent for additional intrusions that, although well intended, could further erode the sacred institution of private property.

If the government can come into your home or place of business and tell you what otherwise legal things you can or cannot do, what else can it do? Can you really call something “private property” if the government controls the decisions of the owner?

Granted, the government goes into restaurants, hotels and workplaces all the time to, for instance, make sure kitchens aren’t infested with rats and cockroaches and ensure that there are handicap accessible entryways.

Personally, I’m OK with these intrusions. After all, it’s hard for a patron to know how sanitary a restaurant’s kitchen is and handicapped people can’t help the fact that they are handicapped.

For the same reasons, I’m perfectly OK with the provision in the 1964 Civil Rights Act that desegregated hotels, restaurants and other privately owned public places.

But there is a big difference between these intrusions and a smoking ban. Smoking is always out in the open.

Visitors know if an establishment allows it as soon as they walk in the door, and from there they can decide to give them their patronage or not.

It is also voluntary, unlike race and disability.

What it all comes down to are balancing tests. Does encouraging integration outweigh the damage that will be done to private property by mandating that property owners serve people of all races?

Yes, I believe it does.

Now, does the same test, which pits encouraging less smoking against private property rights justify legislation such as the statewide smoking ban?

I’d say no.

After all, what is the point of the smoking ban? To encourage healthy habits and environments, no?

If the government decides to get into the business of policing a person’s health and is willing to go into private businesses where people voluntarily choose to be among smokers even if they themselves do not smoke, where does it end?

Would the same rationale for the smoking ban not also justify its going into restaurants and bars and telling the owners what food and drink they can and cannot serve or that they can only serve food with so many calories or so much trans fat?

When you look at it, it’s really not all that different from the government going into a business and telling its proprietors they cannot allow people to smoke.

In addition, would the same rationale not also justify the government telling overweight people that they can’t eat this or that food?

But still, some supporters would argue that the ban passes the balancing test because the act of smoking isn’t something confined solely to the smoker.

True: Secondhand smoke does exist and does have negative health effects.

But as I said, the decision to patronize or work at smoking establishments even for non-smokers is completely voluntary.

People don’t have to go to these places. And for those who refuse, certainly there are businesses that profit from welcoming the smoke averse into their non-smoking establishment.

If the government wants to limit smoking on government property, that’s fine by me. I don’t see any problem with that.

But it becomes a slippery slope when it starts getting into doing the same for privately owned property.

And if one is willing to defend the legislation that sets the ball rolling down that slope, he or she must also be willing to defend all of its consequences.

— nperrino@indiana.edu