Medical Marijuana (Part Two): The Legal Aspects
In recent years, there has been an enormous shift in public opinion regarding Marijuana use. In 1969, only 12% of Americans believed Marijuana should be legalized, and in 1999, the number had risen to around 30%. Today, nearly 60% favor legalization (Swift; Stemen 406), and an intense push for Marijuana law reform has helped change the landscape of discussion regarding the propriety of the drug’s consumption. As a result, a majority of states now permit Marijuana use as a medical alternative upon a doctor’s recommendation (Stemen 416). Moreover, seven states and the District of Columbia require no medicinal nexus and allow it for recreational purposes. Along with this larger social shift, there appears to be a notable increase in support for decriminalizing, or even legalizing, Marijuana among those professing Christian faith (Bailey 14-15).
A comprehensive discussion of Marijuana use is multifaceted and necessarily includes potential medical benefits and risks as well as mental and psychological consequences. In light of the rapidly changing legal landscape, though, the legal aspects of Marijuana usage, even for ostensibly medical purposes, merits careful consideration. This article will attempt to provide clarity regarding the legal status of Marijuana in America by briefly discussing the Christian’s respect for law generally, the American system of dual sovereignty, changes in the simultaneous regulation of Marijuana by federal and state authorities, and an important Supreme Court decision relative to these matters.
Christian Respect for Law Generally
The Christian’s view of Marijuana use is necessarily informed by his general respect for the law. Even in the absence of formal rules, members of a community implicitly contract to forego certain benefits potentially available to them without rules to protect the order and security of the entire group. Of course, some will breach this implicit contract by behaving in ways that are injurious to themselves and their neighbors. Consequently, a formal system of rules that regulate the conduct of members of a community and may be enforced by imposition of penalties, i.e. “the law,” are an inevitable consequence of living in community. Since Adam and Eve were created and placed in the Garden of Eden, men have never existed without law. For instance, the first couple was forbidden from eating of the tree of the knowledge of good and evil and subject to death for violating that command (cf. Genesis 3:1-3).
Christians respect this kind of regulation and enforcement in significant aspects of life because, by God’s design, human beings live better lives under an umbrella of law. Both Jews and early Christians recognized Jehovah as their lawgiver (cf. Isaiah 33:22; James 4:12), and Gentiles, who were never under the Mosaic system, were always under law to God, even if they did not recognize it (cf. 1 Corinthians 9:21; Romans 1:28-32 [Romans 2:14-15]). His laws are designed to restrain injurious behaviors and corral those who would perpetrate them (cf. 1 Timothy 1:8-11). In His authority as the ultimate lawgiver, Jehovah empowers human agents to make and enforce laws regulating conduct for nations and large communities of their fellows (cf. Daniel 2:21; 1 Peter 2:13-14). These human lawgivers are properly God’s aids in controlling rebels and helping people live quiet and peaceful lives (cf. 1 Timothy 2:1-2; Romans 13:3-4). Christians are taught to respect these secular authorities and the statutes they enact (cf. Titus 3:1; Romans 13:1-2, 4).
American System of Dual Sovereignty
In light of the Christian’s general appreciation and respect for law, it is important to note that all Americans live under a system of dual sovereignty where they are simultaneously subject to both federal and state regulation. In Moore v. Illinois, 55 U.S. 13, 20 (1852), the Supreme Court explained the concept thusly: “Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.” A law-abiding citizen, then, does not pick and choose which laws he will follow. Rather, he will obey the laws of both sovereigns whenever possible.
Obeying the laws of federal and state sovereigns is not an onerous burden typically because, where the two endeavor to regulate related conduct, they are usually complementary. Federal and state laws might be coterminous, simultaneously regulating substantially similar behavior. In that circumstance, a single act or course of conduct might subject one to punishment by both sovereigns. Robbing a bank, for instance, likely violates federal statutes as well as state statutes in the jurisdiction where the bank is physically located, and a bank robber is subject to prosecution by either or both authorities. Federal and state laws might also be complementary in that they supplement one another, regulating related, but not necessarily overlapping, behaviors and governing a greater breadth of conduct together than they would individually. The myriad of laws addressing traffic safety on public thoroughfares is but one example. Ultimately, where federal and state laws overlap, one can comply with both by adhering to the more restrictive regime, and there is no actual conflict.
Of course, not all federal and state laws are harmonious. The Framers of the Constitution anticipated conflicts between the regulatory schemes of federal and state sovereigns and prospectively provided for their resolution. Article VI, Section 2 of the U.S. Constitution states, inter alia, that the Constitution and the Laws of the United States “shall be the supreme Law of the Land.” According to the Supreme Court, this Supremacy Clause “unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail” (Gonzales v. Raich (2005), 125 S. Ct. 2195, 2212). The federal law, then, is the higher law, and citizens are always obligated to obey it.
Changes in Federal-State Cooperation
The concept of dual sovereignty is vital to the ongoing discussion regarding Medical Marijuana. According to Title 21, United States Code, Section 801, the federal government enacted the Controlled Substances Act (CSA) to regulate and facilitate the manufacture, distribution, and use of controlled substances, and to prevent the substances from being diverted for illegitimate purposes. In the CSA, Congress classified Marijuana as a Schedule I hallucinogenic drug, a categorization that reflects a high potential for abuse, a lack of accepted medical use, and a lack of accepted safety for use of the drug under medical supervision (21 U.S.C. § 812). In short, the CSA designates Marijuana as contraband for any purpose, including medical uses, and the lone exception is use during research studies preapproved by the Food and Drug Administration. While the CSA allows for amending substance classifications, Marijuana, like Heroin and LSD, remains classified as a Schedule I drug, despite robust efforts to reclassify it (Mikos 1434).
State authorities are also active in regulating drugs and narcotics, and the federal government has traditionally deferred to them for low-level enforcement while it emphasizes larger scale, higher-profile traffickers. Historically, then, state and local authorities have been primarily responsible for Marijuana law enforcement (Adler 506-507; Golden A10). Whereas states largely follow federal controlled substances classifications, many have broken with the federal government in recent years and decriminalized the medical, and even recreational, use of Marijuana in their jurisdictions. In so doing, they have fundamentally altered their traditional role of cooperative enforcement and begun to sanction what the federal government expressly prohibits (Bryant 676-692; Stemen 406-407).
These sweeping changes in state laws have created a profound regulatory vacuum for lower-level and local activity because, as a practical matter, federal authorities lack the resources to investigate and prosecute all Marijuana production, distribution and use (Mikos 1424; Kreit 1160; Grabarsky 18). James M. Cole, former Deputy Attorney General of the United States acknowledged as much in a memorandum, dated August 29, 2013, to federal prosecutors. Among other things, he enumerated priorities for federal enforcement and explained, “The enactment of state laws that endeavor to authorize Marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement” (2).
Gonzales v. Raich, 125 S. Ct. 2195 (2005)
While changing laws among the several states have a dramatic practical impact on enforcement, they have absolutely no relevance to the ultimate question of the legality of Marijuana possession, distribution and use in America. Federal law, “the supreme Law of the Land,” criminalizes Marijuana throughout the nation, and the United States Supreme Court made this abundantly clear in Gonzales v. Raich. In 1996, California voters passed the first modern Medical Marijuana ballot measure, the Compassionate Use Act of 1996, allowing seriously ill residents access to Marijuana for medical purposes. Severe or chronic pain is among the most common needs cited by Medical Marijuana patients, and the act exempted physicians, caregivers and patients from criminal prosecution for possessing or cultivating Marijuana for medicinal purposes with the recommendation or approval of a physician.
In Gonzales, a California resident who suffered from a variety of serious medical ailments sought to use Marijuana to relieve her pain after a host of conventional medicines failed to alleviate her symptoms. She cultivated Marijuana for herself and ingested it by smoking and using a vaporizer. After a thorough investigation, county deputy sheriffs concluded that her Marijuana production was local and her use was lawful under California law, but federal Drug Enforcement Administration agents seized and destroyed her Cannabis plants. The woman sought relief in the courts and argued that enforcing the federal CSA’s categorical prohibition of manufacturing and possessing Marijuana for medicinal purposes under state law was unconstitutional. The Supreme Court affirmed that Congress has the power under the Commerce Clause to regulate medicinal substances, even those entirely produced and consumed locally, and that the federal government can prosecute Marijuana users even if they comply with relevant state law.
Concluding Observations
Christians are familiar with the concept of simultaneously abiding under a network of secular, spiritual, and domestic laws. While this myriad of laws should be complementary (cf. Romans 13:1-5; 1 Timothy 2:1-2), they sometimes conflict. When there is an actual and irreconcilable conflict, Christians are expected to follow the higher law. For instance, Christians must obey laws promulgated by human authorities, but only insofar as they do not necessarily and irreconcilably contradict God’s law. Where a genuine conflict exists, Christians must obey God rather than men (cf. Acts 5:29).
This rudimentary spiritual precept, which corresponds to the principle embodied in the Constitution’s Supremacy Clause, is indispensable in responsibly contemplating the legal aspects of Medical Marijuana in modern America in light of the evolving landscape in its several states. There is no open question regarding the legality of Medical Marijuana in America because no state can authorize violations of federal law. To the extent that a conflict exists, it is not a conflict among equals. While, an increasing number of states have broken with the traditional complementary scheme of federal-state Marijuana regulation, the federal laws remain unchanged. It is a serious violation of federal law to grow, sell, or even possess the drug anywhere in the United States. It may not be lawfully dispensed even with a prescription, and no state law can change that. “[W]hen regulations promulgated by the sovereigns conflict, federal law necessarily controls” F.E.R.C. v. Mississippi, 456 U.S. 742, 767 (1982).
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Melvin Otey serves as Associate Professor of Law at Faulkner University’s Jones School of Law. He previously worked for the US Department of Justice in Washington, DC, as a trial lawyer while ministering to Georgia Avenue Church of Christ in our nation’s capital. He is a graduate of St. Louis University, Howard University School of Law, and Amridge University. He presently serves as a minister with the Dalraida Church of Christ in Montgomery, AL.
Works Cited
Adler, Jonathan H. “Marijuana, Federal Power and the States Symposium: Introduction.” 65 Case West. L. Rev. 505 (2015).
Bailey, Sarah Pulliam. “Christians Torn About Legal Marijuana.” Christian Century. March 5, 2014.
Bryant, Armikka R. “Taxing Marijuana: Earmarking Tax Revenue from Legalized Marijuana.” 33 Ga. St. U. L. Rev. 659 (2017).
Cole, James M. “Guidance Regarding Marijuana Enforcement.” Justice.gov. 29 August 2013. Web.
Golden, Tim. “Doctors Are Focus of Plan to Fight New Drug Laws: Officials Deal with Narcotics’ Medical Use.” New York Times. Dec. 23, 1996: A10.
Grabarsky, Todd. “Conflicting Federal and State Medical Marijuana Policies: A Threat to Cooperative Federalism.” 116 W. Va. L. Rev. 1 (2013)
Kim, June H. et al. “State Medical Marijuana Laws and the Prevalence of Opioids Detected Among Fatally Injured Drivers.” American Journal of Public Health 106, no. 11 (2016): 2032-2037.
Kreit, Alex. Marijuana Legalization and Nosy Neighbor States. 58 B.C. L. Rev. 1059 (2017).
Mikos, Robert A. “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime.” 62 Vand. L. Rev. 1421 (2009).
Stemen, Don. “Beyond the War: The Evolving Nature of the U.S. Approach to Drugs.” 11 Harv. L. & Pol’y Rev. 375 (2017).
Swift, Art. “Support for Legal Marijuana Use Up to 60% in U.S.” GALLUP News. Gallup.com. October 19, 2016. Web.