Smoking, dating, and competing rights

The following post is a transcript of a weekly radio commentary aired on several Utah radio stations:

Well into the new legislative session, already we see signs that state legislators struggle to discern first principles from ideological preferences and where to land on competing rights. Two bills exemplify these points.

The first bill, HB 13, sponsored by Democratic House member Patrice Arent, penalizes adults for smoking in a car where a person under the age of 15 is a passenger.

I’m old enough to remember the days when airplanes had smoking sections. Imagine that, a metal tube with no physical barriers inside had a smoking section. Society pretended, and airline officials accommodated our delusion, that the smoke at one end of a plane wouldn’t travel to the other end of a plane. Good grief, I worry when the guy fifteen rows behind me sneezes!

Even with modern ventilation systems that still allow us to smell everything happening on a plane, nobody in their right mind would suggest that engineers could design a plane that would allow one passenger to smoke without annoying every other passenger – at least not until a plane is designed that permits passengers to roll down the windows.

Interestingly, HB 13 was amended in the House to exempt convertibles. If you can put the top down on a car, you can smoke while transporting a passenger under the age of 15. And isn’t it peculiar how the bill sponsor somehow neglects the health of any passenger over 15 years old? Laws amaze me when they stipulate an age of appropriateness for people one day or one minute or one second less than some magical number – but it happens all of the time.

The real problem with HB 13 is that it ignores competing rights – not the rights of smokers, in this case, but the rights of parents. The United States Supreme Court has ruled time and time again that parents have a fundamental liberty interest in the “education and upbringing of their children.” The exceptions to this constitutional right, of course, are often cases of abuse and neglect.

In essence, the presumption of HB 13, stated by its sponsor as fact, is that smoking in a car while transporting children is either abuse or neglect. The child is essentially trapped in an enclosed compartment while toxic chemicals are being forced into the child’s lungs through secondhand smoke.

If I were a legislator, I would oppose HB 13 on the grounds that it infringes on parental rights. That secondhand smoke can be harmful does not outweigh the harm done to a constitutional right of parents to work out their lives with their children. Heaven knows the road we could go down if government became the arbiter of such day-to-day decisions between parents and children. In fact, we see this ridiculous trend in New York City where its mayor wants to ban every fast food children can consume. If we allow parents to stuff non-nutritious food into their children, how do we justify using the law to prevent kids from breathing in secondhand pollution? Maybe, as a compromise, the bill sponsor might include an exemption for a rolled down window to release the smoke?

Another bill, HB 50, has similar problems. The sponsor calls it a “dating violence protection act.” In this case, and I’ll be quick, we are creating a whole new code of law for a dysfunctional society. Because people marry less and court less, they date more. In fact, dating is now a new standard of relationship for large parts of society. There’s married, divorced, engaged and now dating. Dating is now a relationship.

We have laws on the books to cover assault. The last thing we need is a new law giving legal standing to dating. Maybe the bill sponsor might instead try a law requiring good judgment in choosing friends?

For Sutherland Institute, I’m Paul Mero. Thanks for listening.