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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (Dec. 3, 2004)
december 3. 2004 • | U S t O U t 19 /riin ij/M Jn e w s S m o k in g t h e P o t , T y in g t h e K n o t Supreme Court hears medical marijuana, declines Massachusetts marriage case bv Bob R oehr dvtxatcs and opponents ot med- participate in the marketplace, as they would ¡cal marijuana argued their cases have bought it elsewhere. Nov. 22 before the U.S. Supreme That argument resonated with conservative Court. The central issues in Justice .Antonin Scalia, who saw the case as Ashcroft vs. Raich concern similar to a cornerstone interstate commerce interpretations of interstate commerce and decision involving wheat that the court issued whether federal authorities can overrule state in the 1940s. law in this area. Justice David H. Souter indicated some sym List December a three-judge panel of the pathy for compassionate use of marijuana by a Ninth Circuit Court ruled that “the intrastate, limited number of patients, but he feared that noncommercial cultivation, possession and use the large numbers likely to embrace the product of marijuana tor personal medical purposes on would make a shamble of federal policy con the advice of a physician is, in fact, different in ceming controlled substances. kind from drug trafficking.... Further, the limit Justice Sandra Day O ’Connor appeared to ed medical use of marijuana as recommended by be more sympathetic to the plaintiffs’ argu a physician arguably does not raise the same pol ments, perhaps because she has undergone icy concerns regarding the spread treatment for breast can ot drug abuse.” cer. She noted that medi The 2-1 majority wrote, “The cine is "an area tradition "The bottom line is cultivation, possession and use of ally regulated by the that nobody is being marijuana for medical purposes states” and that the mari and not tor exchange or distribu juana was grown for per harmed by the tion is not properly characterized sonal use. as commercial or economic Justice Stephen G. Massachusetts stale activity.” Therefore, “The [Con Breyer suggested that law treating all trolled Substances Act|,« as plaintiffs apply to the applied to the facts of this case, is Food and Drug Adminis couples equally" unconstitutional under the tration to reclassify mari Commerce Clause.” — David Bucket juana as a drug. If it The legal reasoning drew refused to do so, then heavily upon a 1995 interstate commerce opin- they would have grounds to sue the agency for ion penned by Chief Justice William H. Rehn abusing its discretionary authority. He con quist, which limited federal authority in that cluded, “Medicine by regulation is better than arena. medicine by referendum.” Rehnquist was not present for the oral The patients and the relief that they arguments, as he is being treated for an aggres gained from using marijuana were largely sive form of thyroid cancer. He has said he will ignored during the one hour of legal argu participate in all decisions of the court, basing ments. The court is likely to issue its decision his opinions upon the submitted legal briefs next spring. and transcripts of the arguments. Some have speculated as to whether Rehn Marriage quist might benefit from using marijuana to iehard religious conservatives claim the relieve some ot the symptoms associated with Massachusetts Supreme Judicial Court his cancer therapy. decision mandating equal treatment of same- sex couples under the marriage law usurped the function of the legislature. They cite the U.S. Constitution’s guarantee of a republican form of government—an arcane point of constitu tional law that the courts have studiously avoided ruling on. Most observers predicted the anti-gay peti tion would go nowhere. The federal district and appeals courts ruled that the parties had no standing. The Supreme Court declined to accept the case without comment Nov. 29. “We’re not at all surprised that the U.S. Supreme Court declined to weigh in on the state marriage law in Massachusetts,” said David Buckel, Lambda Legal’s Marriage Project direc tor. “The bottom line is that nokxly is being harmed by the Massachusetts state law treating all couples equally.” C hief Justice W illiam Rehnquist White House spokesman Scott McClellan Acting Solicitor General Paul D. Clement said, “President (Bush) continues to emphasize argued the government’s case. He said it’s irrele- the importance of moving forward on an consti- vant that the plaintiffs—both sick women who tutional amendment that would allow the peo had grown their own marijuana to treat their ple's voice to be heard and not allow this issue to own illnesses—did not sell or intend to sell their be decided by activist judges or lexal officials who pot. 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