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.