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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."

Justice Anthony Kennedy.
Justice Anthony Kennedy.

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.

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.

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.

But popular opinion isn't his only reason for arguing that the federal government should leave marijuana to the states.

Continue for more about the legal link between marijuana and gay marriage, including graphics and the complete report.

A graphic comparing popular opinion about the legalization of same-sex marriage and marijuana.
A graphic comparing popular opinion about the legalization of same-sex marriage and marijuana.

Rauch makes three main arguments for why the states should be allowed to determine their own marijuana policies, without federal interference. "First," Rauch writes, "the clash over marijuana, far from being anomalous, is the latest and greatest in an escalating series of state-federal confrontations on hot-button issues. If not handled with care, it could lead to legal confusion, policy incoherence, and political resentment. Law by itself cannot decide how to proceed; there is no avoiding making political choices which determine whether and how the federal government and states will cooperate or collide.

"Second, in making those choices, a good place to look for insight is to same-sex marriage," he goes on. "Though the two issues are substantively and legally very different, from a political point of view their similarities are quite striking. With same-sex marriage, a state-led approach has been a remarkable success, particularly at containing social conflict and adapting deliberately to social change. Most of the reasons for that success also apply to marijuana legalization.

A graphic breakdown of support for marijuana legalization and same-sex marriage by generation.
A graphic breakdown of support for marijuana legalization and same-sex marriage by generation.

"Third, letting states lead on marijuana decision-making is legally more difficult than letting them lead on marriage, and it is politically less natural. State leadership was the default option with marriage; for marijuana it will take hard work and a willingness to stretch. That said, the work is worth doing. Trying to impose and sustain a one-size-fits all, top-down resolution from Washington, D.C., is likely to be too unsustainable and inflexible to succeed."

Another excerpt frames the issue over the long term:

"Public opinion on marijuana has been changing since 1995, almost 20 years, but the federal government's rigid drug laws and ostensible (if often unenforceable) zero-tolerance policies have left little room for political deliberation on other options. A result is that the drug war and public opinion have drifted apart. That disconnect cannot be sustainable, at least not in a democracy as responsive to public opinion as ours. State-level deliberation provides a comparatively safe, incremental way to bring policy and opinion into closer alignment.... Where illegal drugs and especially marijuana are concerned, however, Madison's mechanism has been largely disabled for decades by the federal government's effective near-monopoly on policy.

"The result, I would argue, has been a shining example of counter-productivity and excess -- but that is a topic for another day. The point for today is that marijuana legalization in Colorado and Washington offers an opportunity not just to improve policy; it also offers an opportunity to give the constitutional order a tune-up, putting play back in the joints of drug policy and channeling conflict toward constructive change -- and thereby, if you will, bringing James Madison back into the game."

Here's the full report:

Jonathan Rauch: Washington Versus Washington (and Colorado)

More from our Marijuana archive: "Marijuana: Eric Holder says fed response to Colorado law coming soon."


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