Does the Legalization of Marijuana Violate International Law?

The shift toward legalization of marijuana has gained a lot of momentum in the past few years. By a recent count, more than twenty states have enacted legislation that permits use of one form or another. Most allow only medical use, but Colorado and Washington also permit recreational consumption. For present purposes, I take no position on the policy merits of this development. I do, however, want to point out that the marijuana debate tends to overlook an important issue—namely, federal tolerance for legalization of the sort that has occurred in Colorado and Washington probably places the United States in material breach of international law.

The argument is pretty straightforward: The 1961 Single Convention on Narcotic Drugs provides that parties “shall take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of” cannabis, among other drugs. Having joined the treaty in 1967, the United States is bound to comply. But for the most part, the Obama Administration has chosen not to enforce federal drug laws against recreational consumption in Colorado and Washington, and state authorities in those jurisdictions obviously do not have state prohibitions to enforce. Thus, the United States no longer takes “administrative measures” that are necessary to limit use to medical and scientific purposes. A comparable analysis applies under the 1971 Convention on Psychotropic Substances and the 1988 Convention Against Traffic in Narcotic Drugs and Psychotropic Substances, both of which contain similar provisions and bind the United States as a party.

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7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument.

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US Supreme Court Review: Bond v. United States

US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)

Continuing with this blog’s coverage of the recently concluded Supreme Court term, I’ll offer a few thoughts on the decision in Bond v. United States, which addressed a challenge to a statute that Congress passed in 1998 to implement the Chemical Weapons Convention (“CWC”). Most have heard about the underlying facts: After finding out that her husband was the father of her best friend’s soon-to-be-born child, Carol Anne Bond tried to poison the friend with 10-chloro-10H-phenoxarsine and potassium dichromate. This plan didn’t work, but the authorities found out about it and prosecuted Ms. Bond under 18 U.S.C. § 229(a) for possession and use of a “chemical weapon.” Bond then entered a conditional guilty plea that preserved her right to appeal and, after a lot of other litigation, made two arguments before the Supreme Court. First, she contended that Section 229(a) doesn’t apply because she didn’t use 10-chloro-10H-phenoxarsine and potassium dichromate as “chemical weapons” within the meaning of the statute. Second, she argued that the statute is invalid even if it applies because it exceeds the enumerated powers of Congress and intrudes upon powers that the Tenth Amendment reserves for the states.

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