Pubdate: Wed, 15 Jan 2014
Source: SF Weekly (CA)
Copyright: 2014 Village Voice Media
Author: Chris Roberts


Drug Reform Victory Won't Come from the Courts

Rare is the court hearing that generates a media hoopla, but an
argument scheduled for earlier this week at the U.S. Ninth Circuit
Court of Appeals - that pack of activist judges widely derided as
liberal agitators by the American right-wing - was poised to create a

The court, attorneys arguing the case excitedly told the media, was
going to hear oral arguments on Californians' rights to smoke
marijuana, which they say have been restricted since the Justice
Department-led crackdown on the state's weed industry began in 2011
(and which has meanwhile left multiple cannabis dispensaries
unmolested for every one shut down).

The federal government was going to have to answer for shutting down
taxpaying, licensed businesses. Federal judges were going to grill
federal prosecutors!

For about an hour. Then, another press release appeared, this one much
less enthusiastic: The court had canceled the oral arguments. A
written decision, almost certainly dismissing cannabis proponents out
of hand, is expected. No day in court for weed, not this time.

And not anytime soon. It's been some time since a federal marijuana
case made much headway. A decadelong effort to remove marijuana from
the DEA's list of most-dangerous, most-medically-useless substances
reached the door of the Supreme Court this past fall before the
justices decided not to hear it at all. SCOTUS did hear a weed case
way back in 2005, a case so old now it was originally filed against
John Ashcroft and heard by William Rehnquist.

The dramatic timing of this latest setback will fuel fears of a vast
government conspiracy against a plant (and, fairly or not, remind drug
reformers of the time the local U.S. Attorney canceled an appearance
at a local law school after she heard that cannabis protesters planned
to be there).

More importantly, it will do nothing to soothe a drug reform movement
in California tired of setbacks.

The prevailing wisdom on drug reform is that only the people - that
is, those who bother to vote - will enact change; legislators won't
and the judiciary can't. Change, they say, must come from below.

Except when it doesn't: Some of the biggest victories in social
justice in America, some of the biggest steps forward in the last 50
years - marriage equality, desegregation and voting rights, a woman's
choice to end her pregnancy - have been handed to us by the courts.

This appears unlikely to happen with drug reform. And indeed, when the
judicial branch has gotten involved, things have often turned out
worse for the drug legalization movement.

Thanks to the courts in California, it's legal to fire someone simply
for using medical marijuana (Ross vs. RagingWire), it's okay for
weed-fearing cities and counties to ban dispensaries outright
(Riverside v. Inland Empire Patients Health and Wellness Center), and
truly weed-hating cities can even go one step further and decide that
they can ban medical marijuana cultivation (Maral vs. City of Live
Oak) despite state law saying it's okay to tend at least six plants.

And it would be much, much worse if not for the California Supreme
Court stepping in to make a save in a backhanded way: An appeals court
a few years back ruled that federal law pre-empts state law on medical
marijuana - which could have led to every dispensary in every city in
the state getting shut down. The court tossed that ruling out, but the
lesson was learned.

"The courts are leading on this," says a medical-marijuana attorney
who asked not to be named (as to not piss off the courts), "but
they're leading in the wrong direction."

The showdown in the Ninth Circuit that was to be this week likely
wasn't going to go anywhere: Attorneys were set to argue that, similar
to a woman's right to end a pregnancy, people in California have a
right to smoke marijuana under state law if they choose. That same due
process argument has been tried before - and has yet to succeed.

The problem is that actions in Congress are often led by a move by the
courts, which - as the gay marriage struggle has shown us over the
last decade - often lead the people. So that puts us back where we
began - waiting for the movement from below to get going. 
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