Dissents Of The Day

A reader writes:

I'm sure you're getting a ton of well-deserved pushback against your lazy false equivalence of the Controlled Substances Act and DOMA. Your marriage is not recognized by the federal government, but it's not illegal. It might be bad policy for the FBI to swoop in and arrest pot smokers in Washington and Colorado, but they have the power to do this under federal law. Your marriage does not violate DOMA, and you can't be arrested or charged with violating DOMA by virtue of your marriage.

I'm on your side, on both gay marriage and marijuana legalization. These issues are important enough, and your soapbox is tall enough, to merit careful argument on both issues.


DOMA is not something that someone can be prosecuted under.  DOMA states:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe    respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

This is not a criminal law of the kind Lawrence v. Texas struck down. States may not prosecute people for homosexuality or for getting married.


More generally, I think the marijuana-gay marriage analogy is a bad one. The day is long past when official persecution of gay people was either common or remotely acceptable. Thank god! Meanwhile, the persecution of people for cannabis possession is extremely common, profoundly destructive, and elicits only the faintest outrage from the general public, debates about decriminalization/legalization notwithstanding. Imagine police arresting hundreds of thousands of gays a year.

One more:

As to your more general response to Kleiman – that somebody can violate a federal law while being a law-abiding citizen as long as his conduct has been decriminalized in his state – this is torturing language in a way Orwell would despise.  Federal law is law in the United States.  People who break it are lawbreakers.  Moreover, federal law, criminal and civil, has as often been used to promote social ends that you would celebrate (see: Reconstruction, Civil Rights) in the face of retrograde state laws, as it has to promote social ends you abhor (marijuana prohibition) in the face of enlightened state laws.

What you are really doing when you call people who abide by state law but not federal law "law-abiding citizens" because they are law abiding "in terms of their own state" is saying that it is okay to be a federal lawbreaker.  At the level of generality stated, this is false.  It is also plainly in the service of rationalizing a narrow political preference of yours. (Orwell would say that's why your language has become imprecise.)  And it is hard to square with your purported conservatism, which should be careful in advocating violations of the law, not cavalier to the point of sloppiness.