Few issues so typify current ideological polarities between the federal and state governments in the United States than the battle over legalization of marijuana. On a state level, the popular mandate for safe and legal access to cannabis has been evident in a number of regions. As eight states plus the District of Columbia now allow for some form of recreational use, at least 12 additional states are poised to join their ranks in 2018.
Even Senator Dan Seum, a Republican from conservative stronghold Kentucky, has recently advocated for recreational cannabis use in his state.
Working counter to this tide of widespread legalization, however, is the federal government. The policies of current Attorney General Jeff Sessions have been particularly combative toward those in the cannabis industry and the state governments that seek to support and tax them. Sessions’ January withdrawal of the Obama-era Cole Memo was seen widely as an attack on states with legal cannabis, as it both undermined their autonomy to allow free use of the plant, and drastically complicated issues of banking and finance for cannabis business owners.
In recent years, another issue has been contentiously battled through conflicting state and federal mandates: that of same-sex marriage.
The issue of the legality of same-sex marriage saw a decades-long discourse in the United States. Judicial action on the matter dates back to 1972, when in the case of Baker v. Nelson, the Supreme Court dismissed a gay couple’s attempt to marry, on the grounds that a state law limiting marriage to persons of the opposite sex did not violate the US Constitution.
In 2015, however, the matter would ultimately be decided by the federal courts in Obergefell v. Hodges, wherein the Supreme Court ruled that for states to prevent same-sex couples from marrying was a violation of the 14th Amendment. Though the battle for same-sex marriage saw states asserting their views on both sides (some moving to allow gay marriage, others moving to ban it), the issue’s ultimate path may give clues as to how the matter of cannabis legalization could be resolved nationwide.
States Go To Bat For Same-Sex Marriage And Cannabis
In 1999, three years after President Clinton passed the Defense of Marriage Act, California became the first state to pass a domestic partnerships statute. The full rights of same-sex marriage would not be granted to Californians until 2008, when state legislatures struck down a controversial ban.
Analogous to the state’s pioneering move as the first to allow medicinal use (which occurred around the same time, in 1996), the initial introduction of domestic partnerships in California would serve as a stop-gap solution to federal resistance. Just as domestic partnerships effectively allowed what amounted to marriage, medicinal use in California would essentially legalize cannabis in the state by creating readily available medicinal recommendations, and a plethora of thriving dispensaries that would help create a booming so-called gray market.
For both cannabis and same-sex marriage, these moves would also serve to broaden public acceptance, and move the state collectively toward supporting full legalization. Indeed, surveys from the Pew Research Center indicate that social acceptance of both cannabis and the changing attitude toward same-sex marriage have moved along very similar trajectories and timelines.
As has been the case in the state-by-state legalization of cannabis, protections for same-sex marriage were gradually rolled out across the country in states like Connecticut, Iowa, Maine and Vermont. Almost immediately after the passage of the Defense of Marriage Act, judicial challenges were raised to its constitutionality in terms of both civil and state rights. Ultimately, decisions surrounding the constitutionality of bans on interracial marriage, such as that of Loving v. Virginia, would help shape the justice’s opinion that the right to marry was in fact a federal issue because of the challenges bans presented to the 14th Amendment.
While legal experts generally believe that cannabis cultivation is a state issue — so long as all commerce is engaged within state lines — most cannabis entrepreneurs recognize that true growth and innovation within the field will require interstate commerce.
Given the clear need for changes to federal marijuana policy, and given the hostility toward the cannabis industry from the current executive branch, it may be both wise and inevitable for the path to nationwide legalization to make its way through the doors of the Supreme Court. While challenges to the constitutionality of cannabis prohibition have not been as widespread as those to marriage bans, they do have historical precedent.
A Brief History Of Cannabis Prohibition
Marijuana was initially outlawed in the United States by way of the passage of the Marihuana Tax Act of 1937, which effectively made cannabis illegal by imposing punishments on those who handled the plant. Many historians believe the passage of this act was in part a xenophobic reaction to an influx of Mexican immigrants following the Mexican Revolution of 1910. Cannabis had been widely used in Mexico as a medical treatment and relaxant, and historians believe that measures to curb marijuana use and sales were tied in with hostile attitudes toward immigrants.
While the Marihuana Tax Act did not explicitly make the use of cannabis illegal, it created conditions under which it was impossible to comply with legal restrictions placed on the plant. A successful constitutional challenge was brought to the act in 1969, when professor and activist Timothy Leary argued before the court in Leary v. United States that the act was unconstitutional because it violated the Fifth Amendment protections against self-incrimination.
While the ruling struck down the tax act, the subsequent passage of the Controlled Substances Act in 1970 maintained the illegality of marijuana, and ushered in the drug classification system, under which marijuana remains to be categorized as a Schedule I substance, the designation given to the most dangerous and addictive drugs.
A variety of constitutional challenges have also been brought against the strict prohibition of marijuana. As early as 1968, an article was published in the Villanova University Law Review, arguing that federal marijuana laws violated one’s Fourth Amendment rights to privacy, as they inherently infringed on one’s private domestic sphere. In 1975, this right to privacy was affirmed on the state level, as the Alaska Supreme Court held in Ravin v. State that Alaska residents retained the constitutional right to use and protect a small amount of marijuana within their own homes.
Others have argued that criminalizing marijuana presents a violation of one’s freedom of religion. In 2017, cannabis activist Bill Levin, head of the First Church of Cannabis, filed a civil lawsuit after his facilities were raided by law enforcement. His case, which will posit that he and his congregants were free to consume marijuana as part of their religious ceremonies, is set to go to trial soon.
Still other cases brought to the courts have argued that current laws pose a threat to citizens’ constitutional rights because they call for cruel and unusual punishment.
In July 2011, Alabama local man Lee Carroll Brooker was arrested for growing marijuana for his own medicinal use, and sentenced to life in prison without possibility of parole. Brooker argued that his punishment was unconstitutionally harsh, given his crime. The Supreme Court opted not to hear Brooker’s arguments, and the now-81-year-old disabled veteran remains incarcerated. It certainly seems plausible that as public acceptance of marijuana continues to broaden, further questions will be raised around whether the stringent punishments associated with possession and sales of a Schedule I are, in fact cruel and unusual.
The fight for same-sex marriage was won by way of small battles in terms of state rights and social acceptance. Ultimately, however, it was the recognition by the court that marriage bans were unconstitutional that allowed citizens to lead their life free of unnecessary and inappropriate government intervention. If cannabis users, growers, business owners and their allies hope to enjoy the same protections, it may be necessary to wage similar legal battles.