On Ballot Issues, Double-Timing the March of Progress

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Voters in states all across the country took bold leaps on social issues like marijuana and same-sex marriage. Others were content to dig in.

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Andrew Kelly/Reuters

From sea to shining sea Tuesday night, Americans transformed the social landscape of their country. On the Atlantic, where America greets the morning sun, voters in Maine and Maryland approved and afffirmed same-sex marriage laws, the first states in the nation to do so by popular vote. And on the Pacific, where the sun sets upon American soil, Washington's voters moved to recognize the validity of same-sex marriage, and also legalized the recreational use of marijuana -- as did voters in Colorado, nestled in the Rocky Mountains, the spine of the continent.

The same-sex marriage victories -- and there was one more, in Minnesota -- come at a particularly fortuitous time for the movement. The Supreme Court is poised to accept for review this term a case about the Defense of Marriage Act, the Clinton-era federal law which deprives same-sex couples (married or not) of many important government benefits which opposite-sex couples receive. If the law had any chance of surviving before Tuesday's election results (and it probably didn't), it has virtually no chance of surviving now. It's as dead as Julius Caesar.

And it will likely be Justice Anthony Kennedy, the conservative, the Californian, who kills it. The constitutionality of federal laws isn't dependent upon state policies and priorities (more on that later). But the due process and equal protection clauses of the Constitution have tipping points, and when they tip, they tend to tip in favor of individual liberty and against government classifications. The tipping point here seems to have come. Justice Kennedy, whose "swing" vote has protected the rights of so many gays and lesbians over the years, has obtained with these election results the perfect excuse to do so again.

It's amazing to think how far the same-sex marriage movement has come in the last 20 years. And it's amazing to think how far marijuana legalization has to go. We are much closer to the beginning of this social experiment than we are to its end. By trying to treat marijuana like alcohol, Colorado and Washington have just stepped into unfamiliar territory -- something we haven't seen since state laws that heralded the end of Prohibition. It is, after all, still a federal crime to smoke marijuana, and there is no indication that Congress, or the Justice Department, want to change that anytime soon.

So there will be federal litigation over the Colorado and Washington initiatives and the new state measures will sooner or later force lawmakers and the White House to confront the legal and factual justifications for classifying marijuana as a "Schedule 1 controlled substance." At a federal court hearing last month on the topic, judges were reluctant to second-guess the Drug Enforcement Agency's policy choice to treat marijuana like heroin. But now the earnest legalization advocates who come into court will be the attorneys' general of two states. Now what was an individual right also becomes a "state's right." It sure makes a difference.

And what a difference two years made for Florida, one of the Tea Party hotspots of 2010. This time around, with President Obama on the ballot, voters there rejected a measure designed to repudiate the Patient Protection and Affordable Care Act and an initiative that sought to limit the use of public funds for abortion and reduce the privacy rights of women. Florida voters also rejected an attempt by the Koch brothers and their conservative allies to oust three members of the Florida Supreme Court.

The red states of Alabama, Montana, and Wyoming all passed symbolic measures to reject the new federal health care law, and Montana passed a new abortion notification measure. Arkansas rejected a medical marijuana initiative, Massachusetts embraced one, Montana tinkered with its own existing medical marijuana law, and Oregon voters refuse to go where Colorado and Washington have gone -- they rejected a measure that would have legalized the recreational use of marijuana. In Massachusetts, meanwhile, the state's "death with dignity" initiative was losing by a narrow margin.

Indeed, it wasn't all bourbon and crackers for progressive causes on Tuesday. California voters rejected Proposition 34, the ballot initiative that would have banned the death penalty in the state. The vote map for Prop 34 shows a state as divided as the nation. California's coastal counties were willing to permit life sentences without parole for convicted murderers. But its inland counties were not. So now California will go back to spending $130 million a year on a capital punishment scheme that does not work. The state did approve Proposition 36, which will help ease its prison crisis by reducing the impact of its three-strikes law.

And what about the people whose lives in the law were put to a vote last night? In Maricopa County, Arizona, voters inexplicably returned to office Sheriff Joe Arpaio, age 80, one of the most venal public servants in American history. In Alabama, voters returned to the bench Roy Moore, the former state supreme court justice who once defied a federal court order requiring him to dismantle his Ten Commandments monument from his courthouse. And in Iowa, Supreme Court Justice David Wiggins, a target of the state's conservative forces for his same-sex marriage ruling a few years ago, was barely hanging on in his bid to keep his job.

So now what? Serious litigation on recreational marijuana laws (paging Ted Olsen). A coming Supreme Court showdown on marriage equality (paging Paul Clement). An opportunity for the Affordable Care Act to take effect in 2014 (paging John Roberts). And another few years of Sheriff Joe dancing around the desert dodging the impacts of the investigations which have cost his constituents millions in legal fees and costs. Parts of America took several steps forward Tuesday night, forward into an uncertain future, even as other parts were content to remain comforted by the familiar past.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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