Huckabee: Refusing Gay Marriage Licenses Is Like Allowing Pot Sales

Why legalized marijuana is not "the same as Kim Davis"



Here is how a Breitbart headline paraphrases a question posed by Republican presidential candidate Mike Huckabee in a recent interview on KCCI, the CBS station in Des Moines: "How Is Legalized Pot Not the Same As Kim Davis?" At first glance, you may think that's a crazy question begging for a jokey reponse (legalized pot is a lot more fun than Kim Davis?). You probably won't change your mind after giving some thought to Huckabee's counterintuitive comparison between states that let people buy marijuana and the Kentucky county clerk who refused to grant gay marriage licenses. The exercise is nevertheless worth the effort, because it highlights the fuzzy thinking underlying what Huckabee describes as a major source of conservative anger.

Here is how Huckabee, a former Arkansas governor who opposes legalizing marijuana for recreational purposes but says he is open to medical use, phrased his question:

Let me ask you this. How come it's that liberals are OK with not keeping the federal law when it comes to the marijuana laws and it's OK for the states to ignore it, but if it comes to a county clerk in Kentucky who doesn't believe that she can abide by a federal court ruling, not even a law, then she goes to jail? Do you see where conservatives sometimes their heads explode because they say, "Boy, there's one set of rules for people on the left and a total different set of rules for people on the right"?

It is surely true that progressives, like conservatives, can be strikingly selective in their federalism. But in this case the inconsistency that Huckabee perceives evaporates once you realize that legalizing marijuana at the state level is perfectly consistent with the Constitution, while Davis's refusal to do her job was not—at least, not according to the way the Supreme Court has interpreted the 14th Amendment's guarantee of equal protection. I realize that Huckabee disagrees with that interpretation, but the order he dismisses as a mere "court ruling," worthy of less respect than a statute, was aimed at enforcing a constitutional requirement.

By contrast, nothing in the Constitution obligates states to punish every action that Congress decides to treat as a crime. The Supreme Court says the federal government has constitutional authority to continue enforcing its ban on marijuana even in states that legalize the drug. But states are still indisputably free to eliminate their own penalties for growing, possessing, and distributing marijuana, and Huckabee is incorrect to describe that choice as "not keeping the federal law." Whatever you may think of the way the Court has stretched the Commerce Clause to accommodate the war on drugs (among many other overreaching federal policies), even that highly permissive view of federal power does not allow Congress to dragoon the states into enforcing pot prohibition.

Huckabee himself seems to recognize that constitutional reality. Unlike most of the Republican candidates who have clearly addressed the issue, Huckabee so far has not explicitly said the federal government should not interfere with marijuana legalization in states such as Colorado and Washington. But he came close in the KCCI interview, saying, "Let's let Colorado have at it for a few years, and let's see how that works out for them." Huckabee obviously thinks the results will not be pretty. But unlike Chris Christie, he sounds like he's prepared to tolerate the experiment.

[Thanks to Marc Sandhaus for the tip.]