Today, the United States Supreme Court announced its landmark Obergefell v. Hodges marriage equality decision legalizing same-sex marriage all across the country. The marriage equality and marijuana legalization movements share a lot of the same supporters National polling is very similar and the both causes have made dramatic advancements in recent years. Polling conducted by the Oregon Measure 91 legalization campaign found very similar support for both causes and a lot of overlap from supporters; marijuana tended to be supported by men a bit more, marriage by women, but otherwise very similar voting demographics.
A lot of the Measure 91 campaign staff and volunteers first started working on the Oregon marriage equality campaign, but then switched to marijuana legalization after a federal court decision made the Oregon marriage campaign moot. I know that some of the marriage-equality-turned-marijuana-legalization staffers turned down more lucrative jobs to work on a cause that they believed in. Anecdotally, I know that many of the cannabis law reformers that I work with have been long supporters of marriage equality and they are celebrating today.
Marriage has been deemed a fundamental right by the United States Supreme Court more than 10 times, starting all the way back in the Maynard v. Hill, stating both that marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.” While I doubt that we will see the Supreme Court declare that using recreational cannabis a fundamental right, but what about choosing the best medicine for your condition? Unfortunately, the issue of whether the federal government can enforce federal law to override the medical cannabis use of a qualifying patient was answered the wrong way in Gonzales v. Raich when the Supreme Court ruled 6-3 that the federal government could seize marijuana plants from a patient who didn’t sell or share her medical marijuana within the state of California, let alone across state lines.
Now, Colorado’s marijuana legalization law is being challenged by Nebraska and Oklahoma, as well as a few other parties, for violating federal law. The prohibitionist parties are hoping that they can force the federal government to shut down cannabis commerce in Colorado. Zachary Bolitho, a professor at the Campbell University School of Law, and former federal prosecutor argued in the Los Angeles Times that federal law preempts state law and that new Attorney General Loretta Lynch should declare as such:
If states are free to disregard federal laws they don’t like, then our entire governmental structure is at risk. What’s next? Could a state that doesn’t like the federal Clean Water Act pass a law authorizing the pollution of its waterways? Could a state that doesn’t like the federal Brady Handgun Violence Prevention Act pass a law authorizing gun dealers inside its borders to sell handguns without conducting background checks? Are congressional enactments simply suggestions that the states may accept or reject at their pleasure? That’s not how our system is supposed to work.
Recognizing as much, the Department of Justice — under Holder’s leadership — successfully argued in the 2012 case Arizona vs. United States that federal law preempted Arizona’s controversial immigration law. The situation in Nebraska and Oklahoma should receive the same treatment.
The framers understood that there would be occasional conflicts between state and federal law. And in the supremacy clause, they provided a clear instruction for resolving such conflicts: Federal law wins. That is true regardless of whether the federal law is bad policy or outdated or draconian. And it is true regardless of whether the federal law aligns with the political preferences of the current presidential administration.
Professor Bolitho is correct that federal law trumps state law in that the federal government can always enforce state law, regardless of state law. What Mr. Bolitho leaves out, is that the federal executive branch, has the power of prosecutorial discretion; the federal government doesn’t have to enforce every single law every single time. Marijuana possession of any amount is a federal misdemeanor and your third offense can garner you a felony; does Mr. Bolitho, or anyone for that matter, think that the United States government should subpoena the state registries of medical marijuana states and arrest every single patient, whether they suffer from cancer or HIV or severe migraines, and arrest and prosecute them?
The Obama Administration laid out the framework for which the Justice Department shall evaluate state marijuana legalization measures. The list of federal priorities and guidelines in the now-famous Cole Memo was included in the text of the Measure 91 and the federal memo was mentioned by Oregon legislators at least 420,000 times this past legislative session (okay, maybe I’m exaggerating a bit, but seriously, the federal Cole Memo was mentioned a lot.) The federal government also stated that Native American tribes are also free to move forward with marijuana legalization as well. It is hard to imagine, as Professor Bolitho wishes, that the Obama Justice Department is going to change course at this moment.
Colorado will then proceed to defend its job-creating, revenue-generating, voter-approved law in the federal court system. I imagine that the federal courts, including the Supreme Court, will rule that the federal government could arrest and prosecute everyone in Colorado engaged in cannabis commerce and could even get injunctions to shut down the state licensing system and prohibit cannabis from being cultivated and sold at any location the feds so choose. Thus, the cannabis community won’t (ever) get our version of Obergefell. I don’t see us celebrating in front of the Supreme Court, like marriage equality supporters did today. When it comes to protecting our rights against the government, we are on our own, no court will protect the right of anyone to utilize cannabis, not any time soon, I’m afraid.
However, I don’t see how the Supreme Court can force the Justice Department to do so. If the Justice Department spent all of the resources necessary to shut down the Colorado legalization regime, then Washington, Oregon and Alaska would be next. And then what about the twenty-plus states with medical marijuana laws, are they next? And while the federal government is arresting, prosecuting and imprisoning hundreds of thousands of people for marijuana, what other crimes aren’t being stopped or prosecuted? How many more sex traffickers and violent criminals would be on the loose if the federal government enforced every single federal marijuana law across the country?
As the historic marriage equality decision made abundantly clear: elections have consequences. The President of the United States has the constitutional power to appoint Supreme Court Justices who serve a lifetime and cabinet members that serve at the pleasure of the President. The Attorney General is the top law enforcement official and that official only answers to the highest office in the land. Law enforcement officials, the attorney general included, gets to decide the priorities of the agency; if state-regulated cannabis commerce isn’t a priority, then no one can force federal government to investigate, arrest, prosecute and imprison someone.
So, while the cannabis community won’t be celebrating a landmark court case that declares cannabis freedom across the nation, we do hold our destiny in our hands. We have to ensure that the next and all future presidents at least follow the same marijuana policy as President Obama. If Governor Chris Christie or someone similar gets elected president, then many of our hard-fought gains could be at risk. I don’t think that it will be politically popular for a presidential candidate to tell Coloradans that he or she will waste federal resources trampling the will of the voters, so the candidates may hide their true intentions, unlike Christie.
We need to get presidential candidates on record early and often and ensure that the next president is sensible on cannabis (Bernie Sanders, cough, cough; Rand Paul, cough, cough) and that each and every nominee in future elections knows that trampling the will of voters is a non-starter. We are on our own, our rights won’t be protected by the highest court in the land (as much as it sounds like they should) and being on your own can be scary. But don’t be afraid, marijuana nation, as there is strength in numbers, and we are the majority; the Marijuana Majority, if you will.
Anthony Johnson
Anthony, a longtime cannabis law reform advocate, was Chief Petitioner and co-author of Measure 91, Oregon's cannabis legalization effort. He served as director of both the New Approach Oregon and Vote Yes on 91 PACs, the political action committees responsible for the state's legalization campaign. As director of New Approach Oregon, Anthony continues to work towards effectively implementing the cannabis legalization system while protecting small business owners and the rights of patients. He sits on the Oregon Marijuana Rules Advisory Committee and fights for sensible rules at the legislature as well as city councils and county commissions across the state. Anthony helps cannabis business comply with Oregon's laws and advises advocates across the country. He also serves as content director of both the International Cannabis Business Conference and the Oregon Marijuana Business Conference, helping share the vision of moving the cannabis industry forward in a way that maintains the focus on keeping people out of prison and protecting patients. He was a member of the Oregon Health Authority Rules Advisory Committee, assisting the drafting of the administrative rules governing Oregon’s state-licensed medical marijuana facilities. He first co-authored and helped pass successful marijuana law reform measures while a law student at the University of Missouri-Columbia School of Law. He passed the Oregon Bar in 2005 and practiced criminal defense for two years before transitioning to working full-time in the political advocacy realm. His blogs on Marijuana Politics are personal in nature and don't speak for or reflect the opinions of any group or organization.
