On September 11th the Washington Supreme Court published a decision dealing with an attack on another citadel of American enterprise: the tobacco industry. In this case, American Legion Post 149 vs. Department of Health, the vehicle of attack was legislation first adopted in 1985 by the State’s rather timid legislature, then amended by initiative from Washington’s impatient citizenry in 2006.
The case involved the American Legion Post in Bremerton, which boasts 542 members, but which like so many cases seems to be weighted with more symbolic significance than practical effect.
The issue in the case was the fruit of an imperfect grafting of the initiative to the existing legislation. The 1985 act exempted “private facilities” and the citizen’s amendment included “any place of employment.” The vehemence of the smoking advocates was such that the case took on constitutional proportions. The Court in a split decision upheld the smoking ban because in the private lodge employees were affected by smoking.
This is the second recent case involving constitutional issues that seems to have attracted some measure of general interest. The first case decided two years ago was Anderson v. King County in which it was decided that gay marriage was not constitutionally protected. The Court upheld a ban on gay marriages. That case was decided by Justices Madsen, Alexander, Sanders, Charles Johnson and James M. Johnson. Four Justices thought there were applicable constitutional protections for gays: Fairhurst, Bridge, Owens and Chambers.
On the question of whether smokers are constitutionally protected in this case Sanders and James Johnson, and Charles Johnson seemed to have little problem finding fundamental protections to smokers being violated. In the worst light these three see a Constitution solicitous of the fundamental right to smoke, but not marry. In a more generous view these justices have warmed to the rights of gay smokers. An ember of hope.
One justice saw the constitution protecting both groups, voting to reject both the ban on gay marriage and the smoking ban. That was Justice Chambers, who deserves recognition for consistency.
The majority in the smoking ban case consisted of three justices who would have overturned the gay marriage ban: Fairhurst, Owens and Bridges (sitting pro tem on the smoking case). These people discern a qualitative difference between the rights of marriage and smoking. They were joined by two justices who would not overturn the gay marriage ban. Alexander and Madsen, see the Constitution protecting neither smokers nor gays, again an apparently consistent view. They voted to uphold the ban on gay marriage and could see no constitutional infirmity in the smoking ban.
What is most interesting to me is the three Justices, Sanders, C. Johnson and J.M. Johnson, who see in the privacy expectation of smoking in a private club as worthy of constitutional invocation and more compelling than the rights of the people who work there, but see no linkage between the right to marry and the Constitution.