On Ballot Issues, Double-Timing the March of Progress

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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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