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Gay marriage and marijuana are coming to the court

Washington remains essentially unaltered after last week’s election. In the states, however, referendums on same-sex marriage and medical marijuana represent genuine change — and will have an impact at the Supreme Court as well.

The four referendums on same-sex marriage mark a striking minitrend. Before last week’s election, six states had legalized same-sex marriage, but in each case it was either mandated by the courts or enacted by the state legislature. Because judges are mostly unelected and state legislators are mostly unknown (quick: name yours), it’s plausible that this approval of same-sex marriage did not fully reflect the public’s view.

This time around, majorities of voters in Maryland, Maine and Washington passed laws that would extend marriage rights to same-sex couples. These popular votes represent a real shift in public opinion, at least in these relatively progressive states without large contingents of either evangelical or conservative Catholic voters. (Meanwhile, in Minnesota, voters rejected a proposed state constitutional amendment to ban same-sex marriage — more evidence of blue-state sympathy for the cause.)

These four results matter particularly because the Supreme Court is very likely this year to consider two cases that implicate the question whether there is a fundamental constitutional right to marry whomever you want.

Judicial wariness

The general arc of the Supreme Court’s decisions on gay rights has been gradually bending toward marriage. Indeed, in the 2004 case of Lawrence v. Texas, which established a right to gay sex, Justice Antonin Scalia explicitly stated that the majority opinion (which he did not join) “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” At the same time, the court is traditionally wary of getting too far ahead of national opinion on hot-button social issues.

Conventional wisdom has it that high-profile, controversial Supreme Court decisions create a backlash against the position they affirm. According to this view, Roe v. Wade is the very model of what not to do: By creating a constitutional right to abortion before the public was ready for it, the decision intensified opposition to abortion and harmed the legitimacy of the court.

Those who worry about backlash believe that the remedy is for the court not to enact new rights until a national social movement has begun to make those rights broadly accepted in the public mind. For the gay-rights movement, then, these popular referendums approving same-sex marriage could not have come at a better moment. More than any lower-court decision, they let the justices know that that the time for same-sex marriage is near.

Advocates for same-sex marriage know that they cannot rely solely on referendums, of course, which will not pass in red states in the foreseeable future. But these votes can help show the justices that a gay-rights decision would be hailed as historic and heroic, not reviled and rejected as premature.

The legalization of marijuana is not a moral issue on par with same-sex marriage. But advocates of legalization also hope to create the impression of a trending social movement. Colorado and Washington became the first states in U.S. history to pass referendums making recreational marijuana use legal. Meanwhile, Massachusetts became the 18th state to permit medical marijuana.

Again, the means are as important as the end: Elected officials may not see the advantage in being soft on drugs, but the public — which, after all, needn’t worry about standing for re-election — can vote its conscience. If laws permitting medical marijuana are seen as reflections of public sentiment for its eventual legalization, not an unreasonable inference, then the direction of the movement is clear. Colorado and Washington have broken the taboo on overt legalization.

New litigation

This new scenario will involve Supreme Court precedent and maybe new litigation. Even if states legalize marijuana, Congress has the power to make its use a crime, and to ban physicians from prescribing it where it is medically legal.

In 2005, in Gonzales v. Raich, the Supreme Court held that Congress could make it a crime to use medical marijuana even when the drug was home-grown by the user, was not sold, and did not move in interstate commerce. The key precedent was the 1942 case of Wickard v. Filburn, which presented almost the same facts and reached the same conclusion regarding the production of wheat for home use. (Wickard was also the central case cited by Chief Justice John Roberts when he cast the deciding vote to uphold the Affordable Care Act last June. As much as conservative justices might regret Raich, there is no way Roberts would undercut his controversial vote to accommodate potheads.)

If the federal ban on marijuana is here to stay, that leaves the question of the federal government’s capacity to enforce its laws. In practice, the feds cannot go after small-time growers in any serious way, to say nothing of users. Could they enlist state law enforcement to enforce federal law? The health care decision says that Congress cannot threaten the withdrawal of major funding, and earlier precedent involving gun control says that the federal government may not commandeer state resources. So any federal effort to make states enforce antidrug laws would be subject to legal challenge.

The upshot is that de facto legalization of marijuana might occur even if the federal government never takes part. There will be no dramatic headline, as there would be for a same-sex marriage decision. But the will of the people will prevail, and the Supreme Court will not stand in the way.

Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist.

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