A retired vineyard owner, Gallagher enjoys
lighting up stogies in Concordia Park across from
Kaldi's Coffee on Demun Avenue -- "ecstatically" so, he even claimed in court.
But the Clayton smoking ban prohibited smoking in public parks. It did
exempt sidewalks (and streets and alleys), but not park sidewalks.
With the help of conservative attorney Bevis Schock,
Gallagher filed suit in federal district court in March 2011. The pair
alleged the ban on park-smoking was unconstitutional for several
In the most interesting chunk of their argument, they
called smoking a "fundamental right," citing peace pipes as evidence of
"tobacco's ancient traditions in American history."
called smoking an "intimate part of life" on the same plane as having
sex and getting an abortion. (Can you do those things in a park?)
The appeals judges disagreed last week, writing:
alleged right to smoke in public is not so deeply rooted in the
Nation's history and tradition, and it is not implicit in the concept of
ordered liberty. As such, it does not fall within the "liberty" that is
specially protected by the Due Process Clause.
Read the full opinion below. Gallagher v Clayton Smoking Ban
The federal Eighth Circuit Court of Appeals ruled against Clayton resident Arthur Gallagher last Thursday in his quest to overturn that city's ban on smoking in public parks.