A Tale Of Two Ballot Measures

Somewhat lost in the excitement of the Congressional races, two state ballot measures were voted on. One was in California. It was about legalizing marijuana. Another was in Oklahoma. It was about preferring American law to that of the rest of the world. Oddly, the California measure failed. That was a bit of a surprise. Predictably, the Oklahoma measure passed. The idea of American exceptionalism is not entirely dead.

Considering the candidates Californians voted for, it's a seemingly strange outcome that they would vote against the legalization of marijuana. The vast majority of California citizens have to be stoned to vote the way they do. So how come they would vote against their drug of choice? It's not as obvious as it might seem.

First, for the logical reason. A majority of Californians don't want to legalize non-prescription recreational drugs. That's a big part of the reason for the measure's defeat. Outside of the marijuana-hazed big cities and the rural pot producing enclaves, a great many Californians think marijuana is overall a more negative than positive thing. With California's high unemployment rate, failed public schools and citizen non-involvement, the last thing those voters wanted was more stoners.

But there are other reasons. The war-on-drugs model has had tremendous costs in both money and lives. Compared with other drugs, marijuana is relatively harmless (yes, I've read the studies about long-term effects, and its status as a "threshold drug"). Yet many Californians who thought the costs of battling marijuana use were horrific were still convinced that the alternative of massive marijuana usage was worse. I personally was torn, but ultimately came down on the side of continuing the ban. And like a small but vocal minority, I felt that the state's right to make its own decisions on drug use was more important than regulation by the federal government and FDA preemption arguments. Whether marijuana should be legal or not is not a matter to be decided by Eric Holder or John Ashcroft.

But there was another factor. Several California counties are deeply-involved and fiscally benefited by the illegal marijuana fields and production. If the "farmers" in Humboldt County had really wanted their marijuana crop legalized, they could have poured millions of dollars into the pro-Prop 19 marijuana initiative. Known as "The Emerald Triangle," the citizens of Humboldt, Trinity and Mendocino Counties voted against the measure. On condition of anonymity, one grower said he feared both the inevitable plunge in the price of marijuana and the difficulties of dealing with the FDA, the DEA, the IRS, and the California Franchise Tax Board.

For those who support California's limited acceptance of medical marijuana but don't support its recreational use, the issue was clear. Vote no. Tim Blakely, the manager of Sunset Junction Organic Medicine said: "The fact it didn't pass is not really bad for us because it keeps the status quo for dispensaries and collectives that are already operating." And then, of course, the street dealers weren't exactly enthusiastic about the idea of trading possible arrest for being regulated, taxed, and required to maintain standard quality while watching their profits plummet and legitimate competition spring up.

Over all, the California citizen decision not to legalize recreational use of marijuana was more practical and pocketbook than it was some large moral outrage at the use of drugs. If the growers ever decide that they can make more money farming marijuana legally than they can hiding from the cops, and the regional authorities decide that they can raise more in taxes without substantially increasing the rate of drug abuse, and the stoners get a really good P.R. firm, the next attempt might be successful. One curious proponent of the measure said: "The question I would ask California voters who are philosophically opposed to marijuana is--how does it feel to share a bed with growers and purveyors whose prices were just propped up by your vote?"

The Oklahoma measure was a whole different kind of animal. Oklahomans were fed up with the federal government high-handedly shoving sharia and foreign legal precedent down their unwilling throats. They don't care what the people in Paris or Riyadh think Oklahoma's law should be. And they spoke loudly and clearly on November 2.

Seventy percent of the Oklahoma voters decided that the federal courts had gone off the rails in applying foreign law to American cases, and in a bold exercise of state's rights, declared that Oklahoma would not allow its courts or legislators to use foreign precedent or apply foreign law for any reason. On its face, that statute is not unconstitutional if (and that's a big "if") the matters before the state's courts can be decided on adequate independent state grounds.

There was a major underlying train of thought that went beyond states rights. There was a visceral dislike of the growing trend of European nations to carve out Muslim enclaves applying sharia law in their local districts. To get to sharia law specifically, Oklahoma drafters had to do it through the broad sweep of defying foreign law in general. I applaud them on both counts. But that doesn't mean that I think the final result will automatically work for Oklahoma or states rights. I hope it does.

The first time a state court ruling diverges from a US Supreme Court or Appellate Court ruling incorporating foreign law, there is going to be a royal legal donnybrook. Whatever the final result, it will involve a landmark decision at the Supreme Court. If it comes down to the federal Supreme Court ruling that the federal precedent specifically includes the findings incorporating foreign law, the state will most likely lose. On the other hand, lawyers and judges are very clever and devious people. It is quite possible that the Supreme Court could find that the foreign law incorporated in the federal decision was not dispositive, or that the state's adequate independent grounds ruling outweighed the foreign law portions of the federal decision. Confused yet? Just wait until the lawyers get hold of it.

If you remember, a few articles back I mentioned that at least one judge had decided that a Muslim man could not be convicted criminally or sued civilly for beating his wife because the man didn't intend to break the law. His reasoning? The man didn't know that his version of sharia law was in conflict with the clear law of the state. Fortunately, the appellate court didn't agree. But this is exactly the kind of thing that Oklahomans feared and voted to prohibit. If the case had taken place in Oklahoma after the passage of this measure, no judge would have been allowed to render such a decision in the first place. But what if it had been a federal court judge making the decision? I don't have an answer for that yet.

Until the first test case challenging the Oklahoma measure occurs, I'm simply going to say that anything that prevents sharia law from being applied for any reason anywhere in the United States is a very good thing. Well done, thou good and faithful state.