Whither Federalism? States Okay Pot, Gay Marriage Ignoring Federal Law—What Will Courts Do?

There are 18 states with some sort of legalized marijuana, and Colorado and Washington State have just legalized recreational use. The federal government says possession of a single marijuana joint is one year in jail and a $1,000 fine. The penalties escalate from there, depending on how much you possess, up to life in prison.

There are nine states that have legalized gay marriage. The federal government, via the Defense of Marriage Act, does not recognize gay marriage and thus denies any federal benefits for same-sex couples.

Anytime we try to discuss state’s rights and federalism, some moron on one side starts screaming about seceding from the union and the other side dismisses the issue as just a right-wing fantasy.

Perhaps these two issues in which the states and the federal government are at odds will make some people stop and think about the issue more seriously. The 10th Amendment to the Constitution says that any power not granted to the federal government is left to the states. The essence of the amendment is that states have some sovereign powers that are not the business of the federal government.

The two issues above are on a collision course and will likely be decided by the U.S. Supreme Court. Gay marriage arguments will be this session.

I find it ironic that some of the loudest voices for states rights were in the vanguard of the Defense of Marriage Act. Since when, in our history, has the regulation and authorization of marriages been a federal issue? Each state should be allowed to decide what its marriage laws should be.

Of course this raises some very practical problems. You get married in Massachusetts and then you move to Tennessee. Are you still married? If the court decides that DOMA is beyond the scope of the federal government’s responsibility, will gay couples have different rights in different states when it comes to federal benefits? Does your same-sex spouse have survivor Social Security Benefits if you live in Iowa, but not in Texas?

There are 30 states that have amended their constitutions to define marriage as one man and one woman. Will the high court overturn the will of the people in 30 states? California banned gay marriage in a referendum but a court ruled the election null and void because it took away a right already granted in the state.

The Supreme Court has ruled that the federal government can intervene in a state’s marriage laws. It struck down the law in 17 states that made inter-racial marriage illegal. There is an argument to be made, and no doubt will be, that gay marriage is a similar constitutional right and the court could invalidate all laws against gay marriage.

Will the court be willing to make such a ruling when 30 states, including California, have voted to deny same sex couples the right to marry?

Marijuana laws are similarly a problem. What if a Colorado grower gets life in prison in federal court when the state has sold him a license to farm pot? Will the Supreme Court rule that there is a federal interest in suppressing marijuana use? Or will they void federal penalties for marijuana use?

If the feds prosecute someone in Tennessee for marijuana use and they are not similarly prosecuting people in Colorado and Washington, is there not an issue of equal protection under the law?

There is a growing sense of frustration nationally with the antics in Washington and the inability of the president and the Congress to govern. We saw it with Southwestern states trying to regulate illegal immigration in the absence of a federal solution.

I think you will see more and more states go their own way on issues out of frustration with the federal government.

If Washington continues to avoid dealing with pressing issues the state legislatures will step in. We may reach a point where state legislatures, referenda, and the Supreme Court will be making the laws because the people elected to make them have abdicated their responsibility.

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