“Depending on who is asked, banning smoking in public housing is either an effective way to promote healthier living, as many officials and nonsmokers contend, or a violation of individual liberties, as some tenants argue.”

December 17th, 2011

But after several years of such bans, the objections have gained no legal traction. Smokers are not perceived as a protected class, and civil liberties groups and legal aid societies say they tend not to defend such cases.

“On a personal level, you sympathize with people who want to do whatever they want in their own homes,” said Matt Dyer, a staff attorney in the Lewiston, Me., office of Pine Tree Legal Assistance, which provides free legal aid for people at or below the poverty level. “But legally, bans are O.K. There are so many legitimate issues that landlords can raise.”

No one likes smokers. But maybe it is discriminating against the poor! Disparate impact!

Still, questions of fairness persist because those below the poverty line tend to smoke more than those above it. Studies show that, on average, 30 percent of people in public housing are smokers, compared with 20 percent of the general population.

“It’s discrimination against the poor,” said Nikki McLean, 66, a smoker who lives in public housing in Portland, Me.

Is this a nudge or a shove?