MARIJUANA AS MEDICINE WILL CONTINUE

The first thing to understand about the U.S. Supreme Court's decision on
medical marijuana is that it was an interpretation of federal law.
California's medical marijuana law, passed by a 56 percent majority of the
voters in 1996, remains the law in California. The Supreme Court's decision
specifically acknowledges that it was not ruling on California law.

California officials are obliged by the California constitution to uphold
and enforce California's medical marijuana law unless and until a federal
court rules that it is invalid because it conflicts with federal law and
federal law must reign supreme. That did not happen Monday and it is
unlikely to happen. Despite a plethora of chatter, nobody in the five-plus
years since the initiative passed has filed a federal action that would
bring that issue before a court.

As often as ballot initiatives are challenged in the courts, it is
reasonable to believe that someone would have challenged medical marijuana
if there were even a glimmer of hope that a court would overturn it, or one
of the similar initiatives passed in other states.

On its own narrow terms, the 8-0 Supreme Court decision against the Oakland
Cannabis Buyers' Cooperative is just barely defensible. The case came in
response to a federal civil injunction against the cooperative, organized
after the law passed, against violating the federal Controlled Substances
Act, passed in 1970.

The buyers' cooperative asked the 9th Circuit federal appellate court to
acknowledge a narrow "medical necessity" defense for a few of its most
seriously ill patients. The 9th Circuit directed the district court judge
to consider medical necessity as a "legally cognizable" defense and he
amended the injunction with a tight test of necessity that would cover
perhaps 20 of the cooperative's 2,000 active members. The government
appealed that change in the injunction.

The U.S. Supreme Court on Monday simply held, on narrow grounds, that under
federal law a medical necessity defense against charges of manufacturing
and distributing marijuana was not available to the Oakland Cannabis Buyers
Cooperative. The court came close to denying the possibility that any
patient could claim medical necessity as a defense under the Controlled
Substances Act, but stopped short of doing so because it didn't have an
individual patient's case before it.

So the court did not rule, as some news organizations reported, that
federal law "trumps" California law. California law remains in place. It
simply ruled that since Congress had set up a "schedule" system for certain
drugs, had placed marijuana on the most restrictive schedule, Schedule I,
and had taken no action to change marijuana's legal status, that the court
should defer to the legislative body's actions.

The issue of the drug war is now returned to where it probably belongs, the
political arena, and to the jury box. As Kevin Zeese, director of Common
Sense for Drug Policy, put it, this decision will "create conflict and
sharpen the issues. Above all, it makes it crystal-clear that the war on
drugs is not about protecting health or safety, but in fact is designed and
enforced in such a way as to deny a safe and effective medication to
thousands of seriously ill Americans."

In legal terms, this decision changes nothing. Federal law is to be
enforced, as it has been, as a strict prohibition with no exceptions. State
law in California and eight other states will be different. State officials
are obligated to enforce state laws.

Federal officials must decide whether to bring criminal charges against
medical marijuana patients or caregivers.

As Robert Raich, attorney for the Oakland cooperative, said, this was only
the first round of a long-term struggle still to be played out in both the
political and the judicial arenas.