Marijuana and gay marriage: New study explores their legal link
Same-sex marriage and marijuana legalization aren't natural bedfellows, as it were. But do the topics have more in common than seems obvious at first blush? Jonathan Rauch thinks so. In a new Brookings Institution study on view below in its entirety, he maintains that just as states have the right to establish their own marriage laws -- an argument that may doom the Defense of Marriage Act, which was challenged this week in the U.S. Supreme Court -- they should also be allowed to do likewise when it comes to pot.
The philosophy explored in "Washington Versus Washington (and Colorado): Why the States Should Lead on Marijuana Policy" couldn't be more timely.
As we've noted, U.S. Attorney General Eric Holder has said several times since the passage of Amendment 64, which allows adults 21 and over in Colorado to use and possess small amounts of marijuana, that a federal response to the measure would be coming soon.
Nearly four months after Governor John Hickenlooper signed A64 into law, "soon" still isn't here. And while President Barack Obama's announced visit to Colorado next month has prompted a new round of rumors that a decision is imminent, it's unlikely that the POTUS will take a break from discussing his main reason for the trip -- promoting gun-control laws -- to buzz about weed.
Meanwhile, the Supreme Court heard arguments against the Defense of Marriage Act (DOMA) this week, and Justice Anthony Kennedy -- thought to be the likely swing vote on the issue -- seemed to suggest that the law might be an unconstitutional usurpation of states' rights.
With DOMA, Kennedy said, "you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody."
Should the same philosophy be applied to marijuana, which voters in Colorado and Washington have legalized, albeit with limitations? Rauch, a contributing editor for the National Journal and The Atlantic, thinks that they do.
Justice Anthony Kennedy.
He introduces the subject like so:
When Colorado and Washington legalized marijuana by decisive margins in initiatives last November, they set up not just one but two conflicts. The first, of course, is about drug policy. No less important, albeit less widely noticed, is a conflict about power. To what extent can and should the states act independently of the federal government on an issue with national ramifications? The choices that Colorado and both Washingtons make over the coming months are likely to affect the course not only of drug policy but of state-federal relations for years to come.But popular opinion isn't his only reason for arguing that the federal government should leave marijuana to the states.
The American public is closely divided on whether marijuana should be legal. But it has a clear preference on the question of how to decide. In three recent polls that asked whether the federal government or the states should decide -- or, in a different wording, whether the federal government should let Colorado and Washington implement their legalizations -- respondents favored state leadership by margins ranging from 14 to 25 percentage points. Significantly, CBS News, in November, found that even among those who oppose legalizing marijuana (47 percent -- the same percentage as favored legalizing), 49 percent thought the states should be allowed to decide.
Continue for more about the legal link between marijuana and gay marriage, including graphics and the complete report.