Multiple times, the trajectory of marijuana legalization has been compared to the repeal of alcohol prohibition in the 1930s. Many policy experts and marijuana industry hopefuls believe marijuana is following the same pattern as alcohol where the states, just as they did with alcohol, start with medical regimes and slowly opt out of federal prohibition altogether, one-by-one, creating a patchwork quilt of state-based marijuana regulations. Once states began seeing how alcohol legalization would generate significant tax collections, it became a no brainer that taxation and regulation of alcohol was superior to the chaos created by 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 the legalization of same sex marriage just happened and the ending of alcohol prohibition was around eighty years ago. And, similar to marijuana, same sex marriage faced unsubstantiated junk science, deep and entrenched social stigmas, major political battles, and even 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 federal laws in play are not the same. In June of this year, the U.S. Supreme Court ruled that state bans on same sex marriage were 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 also 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 all states to grant same sex marriages and to 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.
Marriage is a clearly recognized fundamental right. There is no “fundamental” right under any provisions of the Constitution to cultivate, manufacture, distribute, or use marijuana, and this makes all the difference in how the courts and federal government treat marijuana.
Federal policy on same sex marriage and marijuana are very different. The Feds established their supremacy over marijuana in 2005 in Gonzales v. Raich. That case held that the Commerce Clause gave the federal government the authority to enforce federal marijuana laws in California even though the State of California allowed for the 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 remains on the books and that Act makes cannabis federally illegal; there was never a federal statute prohibiting or criminalizing same sex marriage. Though cannabis lawyers like us consider marijuana legalization a civil rights movement, the Feds and the DEA most certainly do not.
The federal courts are not helpful to marijuana (at all). Those challenging state-law bans on same sex marriage had better legal platforms to sue states for their 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 try to force those states to recognize a state-legal same sex marriage performed elsewhere. The issuance and recognition of marriage licenses fall under the Constitution’s full faith and credit clause, but recommendations to use marijuana for medical purposes does 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 the state of Oregon under its medical marijuana laws. The Court held that the California patient’s arrest for possession in Oregon was legitimate because California law could prevent the arrest and prosecution of that patient only in California. As we’ve previously written here and here, the federal courts are just not a good place to go for relief from the federal Controlled Substances Act as the federal courts have pretty much punted over to Congress regarding any change to or deviation from the federal Controlled Substances Act.
Given the foregoing, in our opinion, marijuana legalization is more akin to the ending of alcohol prohibition than to the legalization of same-sex marriages. This means that as of right now, continuing to push for and securing marijuana legalization on a state by state basis is crucial. The repeal of alcohol prohibition hit its tipping point once a sufficient number of states had legalized and began taxing and regulating alcohol, and we ultimately see the same thing happening with cannabis. It’s only a matter of time.