MEDICAL MARIJUANA CASE FALTERS

Justices Seem Skeptical Of Proponents' Arguments

WASHINGTON - The effort by advocates of the medical use of marijuana to
link their cause to the Supreme Court's federalism revolution appeared
headed for failure yesterday.

During a lively argument, the justices expressed little inclination to view
drug policy as an issue of states' rights by which California and other
states that have adopted "compassionate use" marijuana measures can
displace federal regulation of homegrown marijuana distributed to patients
without charge and without crossing state lines.

The case, which drew a crowd to the court, is an appeal by the Bush
administration of a ruling last December by the federal appeals court in
California that the federal Controlled Substances Act was "likely
unconstitutional" as applied to two women who used marijuana under their
doctors' care within the terms of Proposition 215, California's
Compassionate Use Act, adopted by the voters in 1996.

One patient, Diana Monson, grows her own marijuana and uses it to ease
severe back spasms. Angel Raich, who suffers from a brain tumor and other
ailments, is too sick to cultivate marijuana and receives it from an
anonymous source.

Nine other states have adopted similar measures that permit people with
chronic pain or serious illnesses, including cancer and AIDS, to use
marijuana under a doctor's supervision.

The 9th Circuit panel held that under the Supreme Court's recent federalism
precedents, the women's non-commercial intrastate activity did not fall
within Congress' constitutional authority to regulate interstate commerce.

But illegal drugs exist within a national market, Paul D. Clement, the
acting solicitor general, told the justices.

Clement said court precedents dating to the New Deal made clear that "the
relevant focal point is not the individual plaintiff's activities" but
rather the impact on the economy of an entire category of activity, taken
as a whole, that Congress has chosen to regulate.

Randy E. Barnett, a Boston University Law School professor arguing on
behalf of the women, argued that prohibition of "a class of activity that
is non-economic and wholly intrastate" was not essential to the
government's "regulatory regime." "There is no interstate connection
whatsoever," he said.

The justices were skeptical. "Why is this not economic activity?" Justice
Antonin Scalia asked. "This marijuana that's grown is like wheat. Since
it's grown, it doesn't have to be bought elsewhere."

Barnett said relatively few people would meet the medical criteria for
legal marijuana use, and any impact on the overall market for marijuana
would therefore be trivial. The administration, by contrast, has predicted
that 100,000 Californians will avail themselves of the statute if the court
upholds the 9th Circuit's ruling.

With California's population of roughly 34 million, Souter said, the
government's estimate of 100,000 was "not implausible" and Barnett's
prediction of a "trivial" effect "seems to me insupportable." Souter said
the circumstances of the two plaintiffs were "not a realistic premise on
which to base constitutional law."

Also yesterday, the court dismissed without comment an appeal from a
conservative Florida group that sought to overturn the ruling of
Massachusetts' highest court that gave gays and lesbians a right to marry.

The Florida lawyers maintained that this state decision violated the
provision of the U.S. Constitution that guarantees to each state "a
republican form of government." They suggested this means key decisions
must be made by elected legislators, rather than judges.

The dismissal of the claim came as no surprise, and it gives no indication
how the justices are likely to rule on future challenges involving same-sex
marriage.

Despite its broad power to interpret federal law and the U.S. Constitution,
the Supreme Court has no general authority to review a state court's
interpretation of state law or its state constitution.

A year ago, the Massachusetts Supreme Judicial Court, in a 4-3 ruling, held
that the state's protection for equal rights and personal privacy meant
that same-sex couples could not be denied the legal privileges of marriage.

Its decision was limited to Massachusetts, but opponents of same-sex
marriage feared that other judges -- and perhaps the Supreme Court -- would
someday conclude that same-sex marriages in Massachusetts must be honored
elsewhere.

The Los Angeles Times contributed to this report.