Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.”
The recent finding, in a Washington Post-ABC News poll, that support for same-sex marriage has reached a remarkable 58 percent of Americans should make the Obama administration think hard. Not about same-sex marriage but about marijuana.
Anytime now, Attorney General Eric Holder is expected to make an announcement about marijuana, one of the administration’s trickier policy problems. In November, two states, Colorado and Washington, passed ballot initiatives — by strong margins — to legalize marijuana use. Both states established regulatory systems akin to those for alcohol, though Washington’s is somewhat more stringent. And both states acted in defiance of federal marijuana policy: The 1970 Controlled Substances Act makes marijuana illegal and places it in the same class as heroin.
How should the administration respond to this frontal challenge? The answer is: View it not as a threat but as an opportunity.
Many drug warriors disagree. They want the federal government to threaten state-licensed marijuana growers and distributors, and their bankers and landlords, with criminal enforcement. Several former directors of the Drug Enforcement Administration recently called on President Obama to launch a lawsuit preempting the states’ actions, much as he did in challenging Arizona’s immigration law a few years ago. (The Supreme Court delivered a mixed ruling on that challenge.)
Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.
The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.
There is another, more positive, case for cooperation as well. It is best understood by looking at the lessons of same-sex marriage.
In a number of important respects, marijuana legalization and same-sex marriage track closely. Both are controversial social issues about which public opinion has changed dramatically in the past few years; on both issues, polls show the public closely divided but tipping toward legalization.