Is Louisville's Smoking Ban Constitutional? Well ...

By Kevin Gibson
December 29, 2007

I’m pushing 42 years old, and for nearly 42 years I have been a radical non-smoker. I’ve never tried a cigarette first-hand (or smoked anything at all, for that matter), so I can only imagine what the appeal might be. Besides the chemical addiction many smokers fall victim to, that is.

And really, let’s be honest: Who was the first moron that said, “Hey, look, here’s a leafy green plant – how about we dry it out in the sun, light it on fire, and suck the noxious fumes into our lungs through our mouths?!” Was this some kind of prehistoric frat party or something? Or were early humans simply idiots?

“Yeah, and after that, let’s smoke some dinosaur poop!”

And I’m also perplexed by a society that looks the other way when multiple employees at any given workplace will take five or six “smoke breaks” per day, walking to the designated smoking area of whatever building in which they happen to work, then standing around for 15 or 20 minutes fucking off. Does the phrase “lost productivity” mean anything, people?

At the same time, if a non-smoker gets caught sending a personal e-mail from his or her workstation or making a personal phone call, look out, because heads (if not butts) are gonna roll. Talk about a double-standard. I think that when the smokers all go downstairs for a smoke break, the rest of us should be a allowed to take a nap or go to BrainFartsOnline.com until they come back and do some freaking work. (Now, I’d agree that surfing porn sites at work is a bit different, but that’s a topic for another Brain Fart.)

All that considered, however, I’m here to say that I’m a little perplexed by Louisville’s smoking ban. Do I agree with it? Hell, yes, if it means sparing my lungs and the rest of my body the indignity of second-hand cigarette smoke. One of my favorite pastimes is live music, and for years I have loathed the fact that in order to enjoy said pastime, it meant an evening of sinus problems, irritated eyes, coughing, allergic reactions and coming home smelling like an ashtray.

But those are purely selfish reasons; let’s be honest, if more non-smokers frequented bars where bands play, there would have been more non-smoking bars already in existence. Am I right? Clearly, the smoking ban puts bars at a tremendous disadvantage from a business perspective, because for a lot of people, drinking and smoking go hand in hand.

One of the reasons cited for creating the ban in the first place was to spare bartenders who had no choice but to be subjected to heavy doses of second-hand smoke. But I’m here to tell you something: ANYONE WHO IS SERIOUSLY CONCERNED ABOUT HIS OR HER HEALTH IS NOT GOING TO GET A JOB AS A BARTENDER. I had to make the same choice about seeing bands, and often I chose to go ahead and endure the smoke. That’s my fault.

Oh, it’s arguable that Louisville’s Metro Council is looking out for the Pinklungs such as myself who want to enjoy certain indoor activities without fighting through a cloud of cancer-inducing haze. But at the same time, isn’t it similar when someone who has an infectious flu or cold goes to work or otherwise mingles in public? Why isn’t there a law governing that? If a knowingly sick person sneezes or shakes my hand and passes off germs that are going to make me sick for a week, that person is at best careless and at worse a sadistic bastard.

So, the smoking ban in Louisville was recently stricken because a circuit court judge ruled it was unconstitutional. Smokers all around the River City no doubt rejoiced – but don’t get ahead of yourselves, Blacklungs. The reason it was declared unconstitutional was because it gave what the judge deemed an unfair exemption to Churchill Downs, NOT because the judge believed the smoking ban was unconstitutional in theory.

Forget for a moment the debate about whether smoking in public, enclosed places is constitutional – having an exemption like that IS unconstitutional. I mean, Churchill Downs somehow gets a free pass because of its importance to the community and the economy? Sure looks that way, and if that’s the case, it’s all about money, not about protecting people’s health.

But now Mayor Jerry Abramson and the Metro Council are rewriting the ban to put it back into place as quickly as possible. Will there be a loophole in place for the Downs? Or will the council put its foot down and make the playing field even? One has to assume Abramson is a non-smoker, so we have to wonder if his motivations aren’t partly selfish as well, but how far will his political boundaries stretch?

And the main point is that the line is still drawn between smokers and non-smokers. For years, I simply had to decide if going to see that band I wanted to see was worth giving up my relative health for an evening or longer. With major cities all over the U.S. adopting such bans, suddenly the tables are turned. Do the smokers go out and refrain? Or do they stay put and puff away in their own homes? It’s up to them now, much like it was up to us Pinklungs to make that choice for years. It’s kind of nice to have this winning edge for a change, and I would like to enjoy it a bit longer.

Much like the drinkers when prohibition hit a century ago, the nicotine addicts are up in arms because their freedom to do as they please seems infringed upon. And perhaps they’re right. I’ve always wondered just how far the government should go in order to save us from ourselves, and the issue of smoking is no different.

So what is freedom? What does it really mean? It’s relative to what you’re accustomed to, of course. A smoking ban, to me, is a luxury, because I grew up in an environment where I had no choice at all (yes, I remember having restaurant and retail jobs where smoking was free will), but to smokers it feels like an infringement because smoking has been such a big part of American culture for so long. (People used to smoke on AIRPLANES, for chrissakes, until researchers figured out that second-hand smoke can kill your ass.)

Bottom line: Perspective. It’s all about perspective. And at this point, all we can do is wait to see what happens. Smokers, non-smokers, all of us. For better or worse, we’ve put our fates in the hands of politicians, and we’ll have to ride out whatever they come up with.

In 30 years, they might find a way to cure or prevent lung cancer and make smokeless cigarettes, and all this will be moot. Meanwhile, I’m going to take a deep breath and hope for a reinstatement of the smoking ban. I feel like I’ve earned a reprieve after having second-hand smoke forced on me for so long.

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