By Amanda Presutti

The United States federal government has held a negative perception of the medical and recreational use, and sale of marijuana in past generations. The government has projected a public outlook of marijuana that likens it to other illicit drugs such as heroin and methamphetamine. Furthermore, the United States has supported the prohibition of the drug throughout the country and has made citizens wary of its negative effects on individuals and society at large.

However, in recent years, the view of marijuana in the United States has begun to change. Various individual states have begun to reconsider the significance of marijuana through a more positive light because of its value as a medical tool. Few states have even acknowledged the monetary profits that a legalized product could reap and the violence and corruption that it could potentially eliminate. In contrast, other states have taken a more conservative approach and have refrained from legalizing marijuana for any purpose.

To delve further into detail on this liberal perspective, proponents of the decriminalization of marijuana believe that “legalizing and regulating [it] will bring the nations largest cash crop under the rule of the law, creating jobs and economic opportunities in the formal economy instead of the illicit market.”[1] Moreover, the criminalization of marijuana creates an underground market that has the potential to incite violence and political corruption, especially among youth.

The strongest supporters of marijuana have created laws that approved the regulation of marijuana in terms that are similar to the federal government’s position on alcohol consumption. In fact, in Colorado and Washington the recreational use of marijuana has been permitted through the state. Specifically, state law permits that persons 21 or older can buy up to an ounce of marijuana at a licensed store with government identification and are legally allowed to grow up to six marijuana plants in their home.[2] In the city of Denver, the recreational use of marijuana was even decriminalized for people between the ages of 18 and 21.[3]

In addition to these most radical legislative changes, 20 states and the District of Columbia have decided to allow the use and possession of marijuana for medical purposes. The attorney general just recently announced the creation of a policy that would facilitate the incorporation of state-legalized marijuana businesses into banking systems. In this way, state governments could eliminate the need to deal with large amounts of cash, thus eradicating public safety risks for employees and police officers. Lastly, supporters of marijuana legalization have established that more than 30% of the United States population lives under some form of marijuana decriminalization law, and they believe that these laws have not contributed to an increase in marijuana consumption nor negatively impacted adolescent attitudes towards drug use.[4]

In contrast to the liberal outlook of some states, other states have taken assertive action against the decriminalization of marijuana and have not taken any effort to legalize the drug. Rather, this portion of the United States population has a more conservative viewpoint in that they believe the legalization of marijuana would create more problems within the country. These constituents hold the opinion that marijuana is an addictive drug, which creates a disturbance among youth and even older generations. Moreover, some states have a negative perspective on the legalization of marijuana because they deem it an illegitimate way of creating profit or providing a source of medical relief, as it is a potentially addicting drug.

From the conservative end of the political spectrum, the Office of National Drug Control Policy “steadfastly opposes legalization of marijuana and other drugs because legalization would increase the availability and use of illicit drugs, and pose significant health and safety risks to all Americans, particularly young people.”[5] In Obama’s 2010 National Drug Control Strategy, he stated that “‘keeping drugs illegal reduces their availability and lessens willingness to use them. That is why this Administration firmly opposes the legalization of marijuana or any other illicit drug.”[6] Opponents of marijuana have rallied behind this statement, although opinions have undoubtedly changed since 2010. Not only do opponents disprove their own states should prohibit marijuana; they also believe that the federal government should enact laws to prohibit the use and sale of marijuana throughout the country.

Due to the unique political system of the United States, each state has the ability to determine the legality of marijuana on an individualized basis. In other words, each state has been delegated full discretion in defining its own marijuana laws. States may make personalized decisions based on the consensus of their constituents’ interests rather than the dictation of the federal government. Because the government provides states this opportunity to expand power, they have naturally taken diverging directions in approaching this issue. These differing perspectives are apparent by the legalized recreational usage of marijuana in Colorado and Washington in comparison to other states’ refusals to legalize the drug for solely medical purposes. Because of these differences, stances on the issue have been rapidly polarizing. Moreover, the polarized sentiments regarding decriminalization have recently culminated in the creation of several marijuana-related bills.

Several bills were passed through the House of Representatives’ committee revisions and will likely go through to the House floor to potentially be formally ratified. HR 1523, known as the Respect State Marijuana Laws Act and introduced by Representative Dana Rohrbacher (R-CA), would allow individual states to determine their policies regarding marijuana without interference from the federal government.[7] Working off of this bill, HR 499, known as the Ending Federal Marijuana Prohibition Act and introduced by Representative Jared Polis (D-CO), would replace marijuana prohibition with comprehensive licensing and a system to regulate the production, distribution, and sale of marijuana.[8] HR 689, the States’ Medical Marijuana Patient Protection Act which was introduced by Representative Earl Blumenauer (D-OR) at the same time as the other two bills, would make the Controlled Substances Act inapplicable to those acting in compliance with state medical marijuana laws, thus superseding federal discretion in exchange for more state autonomy.[9] Through the passage of the bills, individual states will have the ability to pursue their own endeavors regarding marijuana decriminalization according to the consensus of their constituents and governmental leadership.

The legislative shift portrays the greater, overarching change that is occurring at the most fundamental level of society and government, in that a significant portion of the American population has liberalized its views on previously undisputed issues. As opinions on heated issues continue to polarize, the federal government has been forced to address these points of political contention.

[1] “Marijuana Legalization and Regulation.” Drug Policy Alliance. February 2014. 

[2] Martinez, Michael. “10 Things to Know about Nation’s First Recreational Marijuana shops in Colorado.” CNN. January 1^st, 2014.

[3] Martinez, Michael. “10 Things to Know about Nation’s First Recreational Marijuana shops in Colorado.” CNN. January 1^st, 2014.

[4] “About Marijuana.” National Organization for the Reform of Marijuana Laws. January 2014.

[5] “Marijuana.” Office of National Drug Control Policy. January 2014.

[6] “Marijuana.” Office of National Drug Control Policy. January 2014.

[7] “Federal Policy.” Marijuana Policy Project. January 2014.

[8] “Federal Policy.” Marijuana Policy Project. January 2014.

[9] “Federal Policy.” Marijuana Policy Project. January 2014.

The Complex Convergence of Religion, Business, and Birth Control

By Jack Noland

As is so often true, the devil really is in the details. Supreme Court rulings must factor the tremendous weight of precedent, contemporary issues, and the nuanced variability of each case in a stunning balance. By agreeing to hear Sibelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sibelius, two new cases on religious exemptions to mandated birth control provisions, the Court will sit at the confluence of several compelling legal and political components. The cases center around religion and contraception, two countervailing forces that have often been at odds in the light of American legal philosophy. Yet the arguments and decision here will pull in other topics, including corporate individualism, more general constitutional questions on free exercise, and the context of the momentous ruling in National Federation of Independent Businesses v. Sibelius (2012), or, the “Obamacare” case. Any pursuant ruling will provide precedent for a multitude of popular (or controversial) issues, and as such, this is unquestionably one of this Supreme Court term’s biggest items.  The justices must look back, as they often do, on a long line of legal history, starting with the Constitution.

            Even in the Constitution, the centerpiece of American law, there are standout passages. The First Amendment, important for the rights it protects, and influential in codifying the sort of liberties so often emulated by countries in development around the globe, features two especially salient clauses for these cases. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the amendment begins. A division between church and state was quite clearly necessary to the American Founders, and such a cleavage has, in strife and in concord, been an incomparable element of legal doctrine ever since. Just as the government cannot ordain a state religion or persecute those who practice one, nor can religion control the state. However, problems have often arisen between competing ideals, especially in regards to human sexuality. Birth control has long been a sticking point for many religious individuals and institutions, and the Supreme Court is no stranger to cases on the issue.

            In one of the most influential decisions of the last fifty years, the Supreme Court ruled in Griswold v. Connecticut (1964) that a Connecticut law banning contraceptives was unconstitutional.  he justices voted 7-2, holding that “[t]hough the Constitution does not explicitly protect a general right to privacy…Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations” (Griswold). This decision was thus tremendously important in two regards, as it generally recognized an implicit right to privacy, and specifically prohibited laws hindering birth control.  Griswold’s reach has been vast, as it served as a pivotal precedent in such cases as Roe v. Wade (1973) and Lawrence v. Texas (2002). Indeed, after Roe affirmed the legality of abortions, contraceptives have become more palatable to many who would rather see a fetus prevented than terminated. Arguments on when life can be said to have begun, be it at conception, or at birth, have made this debate more nuanced than before. Some would posit that a contraceptive that rids the body of a newly conceived child would be a form of abortion, which lends itself to another debate entirely.  Moving into the present day, though, birth control has become a long-legalized facet of both sexuality and reproductive health.

            The Patient Protection and Affordable Care Act (PPACA), known at first derisively, and now colloquially as “Obamacare,” also touches upon these issues.  In mandating that companies offer insurance for employees that includes coverage for contraception, the law drew the ire of many who feel that this provision would impede their religious freedom. In acknowledgment of the free exercise clause, the act allows an exemption for churches and other non-profit religious organizations. This is not Obamacare’s first time in the Supreme Court; the 2012 decision of National Federation of Independent Businesses v. Sibelius allowed the PPACA to be enacted, by-and-large. Crucially, the Court affirmed these religious allowances in that ruling simply by virtue of not striking them down.  What, then, is different about these cases?

            The Supreme Court has decided to hear Hobby Lobby and Conestoga because they address a previously unstudied distinction. The PPACA declares that non-profit religious groups are permitted not to pay for birth control in insurance plans, but does not provide an exemption for for-profit companies. The attorneys for Hobby Lobby Stores and Conestoga Wood Specialties Corp. aver that as the owners of the two companies practice religions that do not support the use of contraceptives, their businesses should not be forced to adhere to this provision of the law. The legal reinforcement for the two cases, 1993’s Religious Freedom Restoration Act (RFRA), stipulates that the government must not place a “substantial burden on a person’s exercise of religion.” While this measure evidently covers an individual’s activities, the complexity of these cases arises from the definition of “person” that the Court will use.

            The question of personhood, especially in regards to corporations, has been made a great deal clearer in the past few years. Controversially, In Citizens United v. Federal Election Commission (2010), the Supreme Court overturned a law that banned corporations and unions from donating to political campaigns. As the First Amendment protects the right to freedom of speech, and “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions,” this measure was deemed unconstitutional (Citizens).  Furthermore, per First National Bank of Boston v. Bellotti (1978), the Supreme Court “has recognized that the First Amendment applies to corporations… and extended this protection to the context of political speech” (Ibid). In so many words, the ruling declared that, with regards to the First Amendment, corporations could be equivocated with people. Herein lies the question that makes these cases so pertinent. If corporations are allowed to act as individuals in providing money (and representative speech) to political campaigns, can they be considered to have specific religious views, as a person might?

            “We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression," the Tenth Circuit Court of Appeals wrote, siding in favor of Hobby Lobby (Sibelius). The case reached this court after a district court denied a motion for a “preliminary injunction on the basis of their RFRA and Free Exercise claims” and the Tenth’s earlier denial of “relief pending appeal” (Sibelius 18). One argument in favor of the Tenths Circuit’s ruling may be that the belief that a corporation can “exercise the religious preferences of its owners — that is, by what lawyers call a “pass through” theory, with the owners’ religious views passing through to the corporation they have created” (Denniston). Conversely, Conestoga came out of the Third Circuit, where it was denied injunctive relief. In the full appeal, Judge Cowen’s majority opinion concluded “that the law has long recognized the distinction between the owners of a corporation and the corporation itself,” continuing to say that a “holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners” (Conestoga 30). While this decision is different than that of the Tenth Circuit, Cowen’s final sentence begs an interesting question. If it followed this logic, the Supreme Court might not even need to consider the ramifications of the Citizens United ruling. A business might indeed be deemed a person, with the First Amendment rights that come therewith, including those of religion and speech. If the corporation were such a “legally distinct entity,” separate from its owners, it may not have any intrinsic religious imperatives. Thus, the members of the company would be entitled to their beliefs, but the company itself, as a separate individual body, might not be imbued with any. In such a scenario, it could be easy for the justices to deny a religious exemption to such a business, as the company itself would not have any beliefs to begin with. The drawback of such thinking is that it may disingenuously or coyly ignore the fact that a corporation is fundamentally nothing without the people who comprise it, who may have specific spiritual beliefs. However, the distinction that could be made here is that a religious institution is by definition devoted to a higher power than the people who work for it, and thus can perhaps be said to have specific, innate moral values that a profit-seeking business may not possess as clearly.

            As it stands, there are several issues the Supreme Court must weigh in hearing these two cases. Centrally, the Court must examine the distinction between businesses and their executives.  Indeed, “it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs” (Denniston). It must also take into account the Religious Freedom Restoration Act and its directives that ban government intercession into, and hampering of, religious practice. As such, “the Court must decide whether the pregnancy-related insurance coverage does, in fact, put a burden on the individual owners, or whether any burden is on the business itself, rather than its owners” (Ibid). In truth, this question may largely fall back upon the idea of corporate personhood. The Citizens United ruling is rather clear on this issue, and the First Amendment rights that corporations have by virtue of that decision include religion, beyond the symbolic speech that was salient to that specific case. This could be another clear-cut example in this vein, and these institutions may win the exemption they desire. However, such personhood, if upheld, could lead to questions of whether these commercial businesses can have religious views of their own, which makes analysis more difficult and a resounding victory for these companies less easily attainable. Be it in partial or full favor for either party, the Supreme Court has a very complex legal issue on its hands, and a ruling here will surely be one of nuance and detail that may not neatly lend itself to becoming a universal precedent for these questions.     

References

Citizens United v. Federal Election Commission. Supreme Court. 21 Jan. 2010. No. 08-205. Web. <http://www.law.cornell.edu/supct/html/08-205.ZS.html>.

Conestoga Wood Specialties Corp. v. Sibelius. United States Circuit of Appeals, Third Circuit. No. 13-1144. 26 July 2013. Web. <http://www2.ca3.uscourts.gov/opinarch/131144p.pdf>.

Denniston, Lyle. "Court to Rule on Birth-control Mandate (UPDATED)." SCOTUSblog. SCOTUSblog.com, 26 Nov. 2013. Web. 27 Nov. 2013.

"Griswold v. Connecticut." The Oyez Project at IIT Chicago-Kent College of Law. Oyez.com. Web. 27 Nov. 2013.

Religious Freedom Reformation Act. Pub.L. 103-141. 16 Nov. 1993. <http://www.justice.gov/jmd/ls/legislative_histories/pl103-141/act-pl103-141.pdf>.

Sibelius v. Hobby Lobby Stores. United States Circuit of Appeals, Tenth Circuit. No. 12-6294. 27 June 2013. Web. < www.ca10.uscourts.gov/opinions/12/12-6294.pdf>.

U.S. Constitution. Amend. I.

International and Domestic Legality of Unmanned Aerial Vehicles

By Caitlin Barbas

Drone usage by the United States for military purposes has created controversy both domestically and abroad. Civil rights activists question the legality of the practice within the context of the United States’ laws and the international laws of the United Nations. Supporters of drone aircrafts argue that the use of unmanned aerial vehicles is the only way to overcome the threat of terrorism and maintain national security.

When speaking of drone usage and intelligence collection through surveillance in the State of the Union on January 28, 2014, President Barak Obama touched on his work to limit the use of drones, explaining, “I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.”[1]

Nearly two weeks after this speech, the issue of drone usage abroad has reemerged as a controversial point in U.S. foreign policy and constitutional law. Early February 10, reports emerged of consideration by the Pentagon and the White House over the possible targeting of a U.S. citizen Al-Qaida member[2] in Pakistan.[3] The U.S. Commander-and-Chief, as well as top military officials, must decide whether the citizen is a great enough threat to national security that targeting without a standard trial, is warranted.[4] Either decision will bring high levels of controversy, both domestically and abroad. Four United States citizens have been killed in drone strikes during Obama’s presidency, though only one was the actual target of the drone strike.[5]

This report will look analyze the legality of the United States military forces’ drone targeting within both the national and international realm. As well as possible applications of these laws to the situation of the targeted killing of citizens of the United States.

In May of 2013, the White House announced a clear outline of the circumstances needed to warrant a lethal drone target within international territory. The United States may only use lethal unmanned aerial vehicles when it is not feasible to capture the terrorist suspect.[6] Furthermore, the United States must have a legal basis for lethal force (must be a high-ranking official of a terrorist group or the forces of an active terrorist group intending a terrorist act) and the United States must prove that the terrorist target is a “continuing and imminent threat”[7] to US national security and persons. According to the White House, the conditions which must be satisfied to warrant a US drone lethal targeting include there must be near certainty that a terrorist target is present where the lethal missile strikes, high certainty that a non-combatant will not be injured, and certainty that the national government would not address the issue as a threat to the United States.[8] These conditions, however, will not impede upon the authority of the president to take lethal force in “extraordinary circumstances.”[9]

In terms of lethal force against a United States citizen involved in terrorist activity abroad, , the Department of Justice must conduct an additional legal analysis of the situation to ensure that any action taking will fall within the jurisdiction of the Constitution.

The United States explains that it will not take actions that do not comply with International law or the sovereignty of the country in which the suspected terrorist, however, there are high levels of controversy regarding this statement.

The international reaction to the actions of the United States in using lethal force through unmanned aerial vehicles has gained both support from allies who feel threatened by suspected terrorist and criticism from countries (including allies) who feel the United States infringes on the rights to a fair trial and a due process, granted in the majority of common law systems. The United Nations provides the basis of international law, however, these laws can be analyzed in both situations.   

The United Nations Charter Article 2(4) states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.”[10] Therefore, one could argue that, legally, the United States violates the United Nations Charter when drones are used within the boundaries of Pakistani territory, where they maintain sovereignty. However, in May 2010, the United Nations addressed the issue of targeted killings in the Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, explaining, “[targeted killings] are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare,” but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks.”[11] These frameworks cite two specific situations in which one state may use targeted killings in an international territory. The first situation is when the targeting nations obtains the consent of the nation where the suspected terrorist will be killed. However, the United Nations places restrictions on the consenting nation, stating, “A consenting State may only lawfully authorize a killing by the targeting State to the extent that the killing is carried out in accordance with applicable [International Humanitarian Law] and human rights law.”[12] The second situation is when the target is a highly suspected terrorist or fighter or a civilian which has participated in direct aggression against the targeting country. “In addition,” the United Nations states, “the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity and everything feasible must be done to prevent mistakes and minimize harm to civilians.”[13] 

The United Nations has outlined the measured by which targeting killing can take place within international territory, however, the issue which still remains in proving that the targeting country has complied with the standards of the international law and human rights law.

In complying with the international and domestic standards, the United States must prove that the United States citizen facing possible targeted killing abroad is, with near certainty, a terrorist in operation with al-Qaida. Furthermore, the United States will need to prove that they will maintain a high certainty that non-combatant civilians will not be harmed in the attack and that they will not impede upon the sovereignty of the Pakistan, which has faced one of the highest number of American drone strikes.[14]

The United States’ use of unmanned aerial vehicles is a controversial one both for the lack of specificity within the domestic and international laws regarding targeted killings and for the individuality of each case. Proponents and critics both face difficulties in proving whether a killing was justifiable and in compliance with the sovereignty of the country where the targeted suspect is and the human rights values of the international community.

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[1] CBS. "Obama's 2014 State of the Union address: Full text."

[2] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times.

[3] Dozier, Kimberly. "US suspect possibly targeted for drone attack." MSNBC.

[4] The White House Washington. "U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities."

[5] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] UN Charter art. 2, para. 4

[11] Special Rapporteur, Study on Targeted Killings, supra note 598

[12] Ibid.

[13] Ibid.

[14] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times