AS DOMA GOES, SO GOES THE DEA?

13 04 2013

music:  Greg Brown, “Spring Wind

String Cheese Incident “Land’s End

Same-sex marriage and marijuana use have a lot in common.

Thirty years ago, both were viewed by the American mainstream as beyond the pale, off the table, over the top fringe behaviors that would never see the legal light of day.  But here we are, with nationwide full legal equality for gays trembling on the brink of reality, and marijuana legal for all in two states and those with a medical need in eighteen states.  That’s little more than a third of the states, but they happen to hold about half the population of the country.

At the state level, same-sex marriage is actually somewhat behind legal/medical marijuana, with only 9 states recognizing it, and many states specifically prohibiting it.  On the other hand, there is no such halfway step as “medical marriage.”

It’s hard to tell how the Supreme Court is going to rule on the same-sex marriage cases before it this year.  First of all, six of the judges are Catholic a faith that rejects homosexuality in theory, while some Catholics, of course, practice it.  Still, many of the questions the Supremes asked when they heard the DOMA and Prop. 8 cases.  seem to indicate a more open-minded view of sexual orientation than their pontiff might approve.

I think they may see it this way:  from a “strictly busines,” conservative point of view, the state’s interest in marriage is that it acts as a registrar of contracts.  The federal government has long rejected sexual discrimination of other kinds, so why should it enforce sexual discrimination in the question of two people who wish to enter into a marriage contract, especially when, as even Catholic Judge Kennedy noted,

…”the voice of thousands of children of same-sex couples is an important aspect of the case….They want their parents to have full recognition and legal status,”

He said this in the Proposition 8 case, which, like the DOMA case, is not being defended by the government that is supposed to be enforcing it, but by private groups and individuals who believe that homosexuality is immoral.   The court’s decision may ultimately turn on the question of whether the defenders of Prop. 8 and DOMA have legal standing to do so.  If the court simply decides that they do not, it will somewhat dodge the many thorny social issues the cases raise. It would also effectively dodge the “moral” question.  After all, “morality’ is a slippery, religious slope, and the state is not supposed to be in the business of enforcing the doctrines of any particular religion.

Okay, murder. rape, and robbery are “immoral” activities that are penalized by the government, but somebody is clearly harmed in these crimes, and it is part of the state’s business to protect its citizens from harm.  But who is “harmed” in a same-sex marriage?  Or by the use of marijuana, for that matter?

As an aside,the question of “who is harmed” is the likely rationale behind the move in many states to establish “fetal personhood,” so that they can say an abortion causes harm to the “person” who does not get to be born, rather than acknowledging that a woman should have a choice about whether to remove a growth from her body that will, if allowed to remain, eventually turn into another person,  whose care will be  her responsibility for a good chunk of the rest of her life, and with whom she will have some relationship for the entire rest of her life.  But I digress….

Also at stake in the Proposition 8 case is the question of how much one state’s laws can differ from another’s, or from the federal government’s standards, and how much recognition states must give to marriages that are legal in one state but not another.  This is also one of the places where marriage equality and marijuana intersect, in a somewhat peculiar way.

As I pointed out earlier, many socially conservative states (and a few nominally liberal states, such as California) have passed laws and constitutional amendments banning same-sex marriage.  The social conservatives who are defending DOMA and Prop. 8 would like to see the Supremes affirm individual states’ rights to poke their noses into peoples’ private business.  I’m old enough to remember when conservatives like Ronald Reagan said they wanted to “get the government off of peoples’ backs.”  Somewhere along the way, another phrase was added to the end of this mantra–“and into their pants and bedrooms.”

But I digress.  If the conservative-leaning court grants the defenders of Prop 8 their right to state-by-state laws, then, it seems to me, the government will have a hard time enforcing one-size-fits-all national drug laws. If they decide that Prop 8 is, in fact, unconstitutionally discriminatory–i.e., there are no logical reasons to discriminate against gays, then, given the increasing preponderance of evidence that marijuana use is by and large harmless, if not outright beneficial, they will also have established a precedent that  could favor the legalization of marijuana and the end of discrimination against its users.

And, if they throw out the Federal Defense of Marriage Act on the grounds that the Feds are ruling on a subject that has always been left up to the states, they have produced a ruling could be used to favor state-by-state regulation of marijuana.

No matter what they decide, about marriage now or marijuana later, the tide of public opinion is shifting rapidly on both of these social issues, with approval of both charting above 50% for the first time.  Important differences remain, however.  While you can be discriminated against for being gay, you can’t be arrested for it, but marijuana possession remains one of the most frequent  causes of arrest and imprisonment in the country.  The government  has swung around in favor of recognition of the rights of homosexuals, and the right to be homosexual, but is keeping up strong pressure against the normalization of marijuana use.  This may have to do with the fact that gays are more likely to support U.S. imperialism by joining the military than marijuana users, or maybe that’s just a symptom.

The Justice Department has been promising to clarify its position on state medical and general marijuana legalization issues ever since last November’s election brought full legalization to two states.  I suspect that Attorney General Holder is waiting to see how the Supreme Court rules on states’ rights to make laws about same-sex marriage before he proceeds.  If they strike down Prop. 8, he will, I think, take that as a precedent indicating that state laws cannot run contrary to federal laws, and reinvigorate the government’s very unpopular persecution of marijuana use.  As I have pointed out, though, overturning Prop. 8 could also provide precedent for the invalidation of arbitrary, irrational, religiously based prohibitions being enforced by the power of the state.  More on this story as it unfolds.

So, the end of DOMA could signala the end of the DEA.  Doubly good news!

music: Greg Brown, “This Band of Gold”  (sorry, not available to listen to online!)

Bo Diddley, “Who Do You Love?”  (first is original 1956 recording, second is hot live version from the 80’s)

Quicksilver Messenger Service “When Do You Love?”

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