Ambivalence about Prop. 8 trial

I am not quite sure whether I think the tactic of challenging California's Prop. 8, which barred same-sex marriage, in court on federal constitutional grounds was a good idea or not. It's not that I'm not for gay marriage; the Register opposed Prop. 8 and I thought it was going to fail until late election night. There's simply no case against it that has more intellectual heft than that feeling of ickiness most of us had about "queers" when we were 14 or so. But I'm not sure every right I think is valid is a constitutional right, though you could make a case that the 10th amendment covers a lot of rights ground, and the right to marry just might be included. But the courts pay no attention to the 10th.

The case is being brought, however, on 14th-amendment grounds -- equal protection of the laws and due process. It's not a bad case, as Cato's Robert Levy, who is a constitutional lawyer, points out in this op-ed.

I would prefer that the State had nothing to do with marriage, but it does, and since it does it should treat same-sex couples equally. Politically, however, having gay marriage imposed by the courts is arguably less desirable than having it done legislatively or by referendum, which would reflect a pretty strong consensus. Court decisions to date have led to backlashes -- that's how Prop. 8 was filed -- and one worries that it could set the cause back.

On the other-other hand, if it's a right, and especially one that doesn't harm others when exercised (my definition of a real right), which gay marriage certainly wouldn't, despite ahistorical and ignorant claims to the contrary, a majority, no matter how large (and this one is shrinking) doesn't have the right (though it may have the power) to violate it. Justice delayed is justice denied, so maybe going to court is the best way to vindicate this right.

Exciting times for drug law reformers

It's nice when there's so much going on on the drug-law reform front that it's almost difficult to keep up with it. Last night I mentioned the vote in the New Jersey legislature to allow the medicinal use of marijuana, although on a more restrictive basis than I would like to see. The new law is based on a law-enforcement model rather than a medical model. Doctors, the ones with at least some claim to medical knowledge, generally have discretion to prescribe most prescription drugs (most much more dangerous than cannabis) for whatever condition they consider appropriate, including "off-label" uses for conditions the drug was originally not approved for. But in NJ the politicians -- people with no claim to medical knowledge, guided by law enforcement, people with even less knowledge -- will dictate what conditions marijuana can be recommended for. Control freaky still. But it's still an improvement over absolute prohibition of medical uses.

Meanwhile, in California, I talked to Steve Gutwillig , head of the Calif. Drug Policy Alliance, about the Assembly public safety committee passing SF Assemblyman Tom Ammiano's legalize/regulate/tax bill. Genuinely historic. Unfortunately, it would have to be passed by the health committee by Friday to get considered by the full Assembly this year, and for various reasons that's not going to happen. Tom will probably introduce a new bill for consideration next year -- or perhaps a bill that parallels Richard Lee's initiative measure, which will be on the ballot in November. I don't know how aggressive the opposition will be, but I do know it will be dishonest. The basic MO of the drug warriors is to lie about marijuana, and they're still getting away with it.

And meanwhile yet, Washington state's Assembly will consider a legalization bill, and activists have announced they have filed an initiative they hope to get on the November ballot. Going back and forth with Steve Kubby on Facebook this afternoon, he predicted California's initiative will pass in November. I hope so but I'm feeling a bit more cautious. Win or lose, however, having it on the ballot is definite progress.

Medical marijuana update

In New Hampshire a medical marijuana bill has passed and is waiting for a signature from Gov. Lynch. The pressure not to sign apparently still comes from law enforcement, as this editorial in favor of the governor signing points out. I try to give people credit for actually believing what they say and not i9ntentionally lying, but this Portsmouth police chief is peddling pure claptrap. I hope he follows the evidence in a criminal case better than he did here. Too bad the editorialist was apparently not familiar with the report from the National Institute of Medicine, which said there was simply no scientific evidence for the "gateway theory" of people starting with marijuana and going on to "harder" drugs because of biochemistry or composition of drugs -- but that the theory that using marijuana sometimes leads to harder drugs because it is illegal and using it brings one in contact with a criminal subculture in which other drugs are available and pushed has some validity.

In Montrose CO, a patient living in Section 8 subsidized housing was tossed out for using marijuana, and he plans to sue. I suspect this suit will not be successful because Section 8 is a federal program and federal law is still complete prohibition, despite logic and common sense. Need to get my book written more quickly.

In Michigan, which passed a medical marijuana law last November, the program is experiencing some growing pains. More than 2,500 patient ID cards have been issued. but there's no safe, reliable source for legal medicinal-quality marijuana. In addition, some cops claim to be confused (oh how confused they can be when they're foot-dragging) about whether a patient with a doctor's recommendation byt no state ID card is in violation of the law. Obviously some cops would rather bust patients still than implement the new law. With good will such kinks can be worked out, but if California is any example, some people with the power to arrest are not overly endowed with good will.

Meanwhile in California, proprietors of dispensaries in Oakland are offering to increase the amount of taxes they pay during the state's fiscal crisis. It will hardly close the $25-billion-plus state budget gap, but it might help. Of course in South Lake Tahoe city attorneys are threatening to close three dispensaries that have opened in the past year. Do these officials have a death wish? Every level of government is facing budget problems, and these guys want to close down a source of revenue? And they believe they're the ones with right on their side. We still have a lot of work to do.