PHOTO: BRENNAN LINSLEY / THE ASSOCIATED PRESS
Marijuana legalization is often compared to the repeal of alcohol prohibition in the 1930s. Many see marijuana following the same trajectory as alcohol, where the states, just as they did with alcohol, start with medical regimes and one-by-one create a patchwork of state-based marijuana regulations leading up to recreational use.
Once states saw the significant tax collections that alcohol generated, they decided that regulating and taxing alcohol was superior to the chaos of prohibition. The repeal of the prohibition on alcohol culminated in the 21st Amendment to the Constitution, which ultimately delegated control over alcohol regulation and taxation to the states.
Though marijuana could certainly wind up taking the same path as alcohol on the federal level, it might also go the way of same-sex marriages, especially since legalization of same-sex marriage just happened and the downfall of alcohol prohibition was over 80 years ago. Similar to marijuana, same-sex marriage faced unsubstantiated junk science, deep and entrenched social stigmas, major political battles, and religious persecution in some states. Also similar to marijuana, states began to craft their own policies to accommodate same-sex marriage because federal law failed to do so. And, just like marijuana, a majority of Americans favored the legalization of same-sex marriage even though Congress was doing nothing about it.
Nonetheless, there are clear legal and public policy differences between marriage equality and marijuana legalization:
The constitutional analysis is different. In June of this year, the U.S. Supreme Court ruled state bans on same-sex marriage unconstitutional. The case was Obergefell v. Hodges, which consolidated several other cases in which plaintiffs sought the freedom to marry in Kentucky, Michigan, Ohio, and Tennessee. The questions raised before SCOTUS were whether our Constitution requires states to issue marriage licenses to same-sex couples and whether states must respect marriage licenses issued to same-sex couples in other states.
The Supreme Court held that the Fourteenth Amendment’s Due Process and Equal Protection clauses require that all states grant same-sex marriages and recognize such marriages from other states:
The right to personal choice regarding marriage is inherent in the concept of individual autonomy; the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals, a principle applying equally to same-sex couples; the fundamental right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education . . . as same-sex couples have children and families, they are deserving of this safeguard—though the right to marry in the United States has never been conditioned on procreation; marriage is a keystone of our social order and [t]here is no difference between same- and opposite-sex couples with respect to this principle . . . consequently, preventing same-sex couples from marrying puts them at odds with society, denies them countless benefits of marriage, and introduces instability into their relationships for no justifiable reason.
Put simply, marriage is a fundamental right under our Constitution. But few would dispute that there is no “fundamental right” to cultivate, manufacture, distribute, or use marijuana, and this lack of “fundamental right” status is what allows the federal government to meet a lower burden when curtailing marijuana rights than when it curtails marriage rights.
Federal policy on same-sex marriage and marijuana is different. The federal government established its supremacy over marijuana in 2005 in Gonzales v. Raich. That case held that the Commerce Clause gave the federal government authority to enforce federal marijuana laws in California even though the State of California allowed for medical use of marijuana.
Despite state-by-state marijuana legalization, the Feds have continued to assert their right to enforce federal drug laws and have backed down only to the extent of issuing non-binding enforcement memoranda. The federal Controlled Substances Act explicitly makes cannabis federally illegal, whereas no federal statute ever prohibited or criminalized same-sex marriage. Though most cannabis lawyers consider marijuana legalization a civil rights issue, the federal government and the DEA do not.
The federal courts are not helpful to marijuana. Those challenging state bans on same-sex marriage had ground grounds to sue states for the right to marry. The Constitution’s requirement that states give “full faith and credit” to legal proceedings in other states was a great entry point for same-sex couples to file federal lawsuits against their home states to get them to recognize state-legal same-sex marriages performed elsewhere.
The issuance and recognition of marriage licenses come within the Constitution’s full faith and credit clause, but recommendations to use marijuana for medical purposes do not. In 2010, the Oregon Court of Appeals ruled that a California medical marijuana patient had no right to have his rights as a California patient recognized in Oregon. The court upheld the California patient’s arrest for cannabis possession in Oregon because California law could prevent the arrest and prosecution of that patient only in California. As the lawyers in my firm have written here and here, the federal courts have essentially punted to Congress all issues related to ameliorating the Controlled Substances Act.
All of this means marijuana legalization is more akin to ending alcohol prohibition than to legalizing same-sex marriages. This means that continuing to push for and securing marijuana legalization on a state-by-state basis is both crucial and for now the best way to proceed. Once a sufficient number of states had legalized alcohol, the remaining states had little choice but to follow. We see the same thing happening with cannabis. It’s only a matter of time.