Politics How Gay Marriage Is Like Legalizing Pot Marijuana will be legal much sooner than people think.

Barney Frank is a Politico columnist and a former Democratic representative from Massachusetts.

I am working at updating my references to popular culture in an effort to minimize the number of blank stares I engender from audiences that include many people much younger than myself. This effort seems especially appropriate for the subject of this column: the similarity of marijuana and same-sex marriage as issues of public policy. Temporarily putting aside my admiration for the analytic approach implicit in Henny Youngman’s two liner—“‘How’s your wife?’ ‘Compared to what?’”—I’ll instead invoke Sheldon Cooper from the Big Bang Theory, one of the nation’s most popular sitcoms.

When other characters in the show challenge his attempts to win arguments with non-obvious comparisons by asking how the two things he is analogizing are so similar, Sheldon responds “How are they not?”


Exactly. As a political issue, the fight to remove criminal sanctions for the recreational use of marijuana closely resembles the campaign for the recognition of the right to marry someone of the same sex. The momentum same-sex marriage had gained even before June’s Supreme Court decision gives me confidence that we will see significant growth in marijuana legalization—and in less time than many now expect.

Of course the fact that the Court has now settled the marriage issue—notwithstanding Mike Huckabee’s bizarre call for a return to the doctrine of nullification—underlines one major non-political difference between the two. As much as I think that respect for individual autonomy requires recognition of an adult’s right to smoke or eat marijuana, I see no likelihood that it will be established judicially. In particular, the totality of its prohibition in most jurisdictions makes what I consider the strongest argument for my legal right to marry Jim—the equal protection doctrine—wholly irrelevant.

But as Chief Justice John Roberts wrote in his notably civil dissent in the marriage case, the Supreme Court acted only after—and perhaps in some small way because—the political process was increasingly moving in that direction. The shift in public opinion on the subject was sharp, with 2012 the watershed year. That year, all four states where it was on the ballot voted for it, while President Barack Obama suffered no damage from his self-proclaimed “evolution” on the issue and his dramatic refusal to defend the Defense of Marriage Act in court. Indeed, so clear was the impact of this issue electorally that when several courts subsequently struck down state bans on the practice, some Republican governors and attorneys general, in an effort to neutralize it as a campaign issue, emulated the president by declining to challenge the results.

Analyzing how all this came about is the key to understanding the way in which the marijuana debate will unfold in the years ahead.

It begins with an entirely voluntary activity that some adults want to do—marry someone of the same sex. This increases their happiness without having any tangible negative impact on anyone else. It does, however, make many of the unaffected unhappy because they think it is a bad thing for those other people to do. There are a mix of reasons for this opposition, all of which are based entirely on a dislike either of certain kinds of people, or of the nature of their association with each other, or both.

Early in the same-sex marriage debate—the ancient faraway mid-’90s—the opponents felt no need to disguise this motivation. In language that later became an embarrassment to its defenders in court, the authors of the Defense of Marriage Act cited society’s right to express moral disapproval of homosexuality as part of its rationale. But as more and more of us shared our identity with our friends, relatives, co-workers, etc., our mundane reality undermined the prejudice. It became politically and intellectually unsustainable to prevent people from doing something solely because you were personally offended by it.

The argument then became that allowing people of the same-sex to marry would, in fact, harm people outside the marriage—that it would undermine social stability, and in ways no one ever coherently articulated, detract from conventional—i.e. opposite sex-unions.

At first these arguments were hard to counter. They came from respected authority figures—religious, political, civic—and we had no real world evidence with which to refute them. Then came the breakthrough when the Massachusetts Supreme Judicial Court (as it is formally titled) recognized the right of those in its jurisdiction to marry. And, amazingly, none of the predicted adverse consequences resulted. Encouraged by this absence, a few other states followed suit. As more and more same-sex marriages occurred in different states, reality once again triumphed over the argument for discrimination.

Opponents were forced back on a position that is very hard to maintain in the face of what I believe is the default reflex of Americans in debates about the legal imposition of codes governing purely personal behavior: libertarianism. I have encountered very few audiences who do not express approval when I quote Mencken’s definition of Puritanism—the haunting fear that someone, somewhere, may be having a good time. As I have noted before in this column, when the longtime passionate homophobe Antonin Scalia felt compelled in June to volunteer that he was not personally troubled by marriage equality as a policy matter, it was clear that the debate was over.

Now substitute marijuana for same-sex marriage. It is an activity that many people enjoy with no tangible effect on anyone else—with the possible exception of a friend who eats your entire bag of potato chips. But it is also something of which many other people disapprove in principle, absent any negative impacts on them. As long as the practice was doubly illegal—at the federal and state levels—everywhere in the U.S., it was very difficult to disprove the assertions of many authority figures that it would have a debilitating effect on society if it were lawful. (To complicate things, in marijuana’s case, its status as a crime meant that there were negative societal consequences, as millions faced what came to appear to be disproportionate legal sanctions and prison time from its use.) Advocates for legalizing marijuana faced the same frustrating vicious cycle that encircled same-sex marriage supporters. We could not demonstrate that the alleged social harm it would cause was a myth until we could point to real-world experience, but we could not gain that experience until we could refute the allegations.

Then once again came the breakthrough—or in this case, breakthroughs, because this has been a two-step process. And it is a prime example of a political doctrine I have long urged on my political allies—incrementalism in the face of strong opposition.

Step one was medical usage. All but the most ardent practitioners of Mencken’s version of Puritanism were hard-pressed to deny people suffering severe pain the right to a substance that they said brought them some otherwise unavailable relief. So millions of Americans were soon living in jurisdictions where some marijuana use was lawful. As with gay marriage in Massachusetts in 2004, nothing bad happened as a result. Civilization did not collapse after California made medical marijuana legal, nor has the world ended in the now 23 states and the District of Columbia where it’s legal today.

The anti-marijuana side then made an error common in political debates. They seized on an argument that was theoretically helpful in the short-run, while neglecting the long-term damage it did to their cause. Instead of asserting that allowing medical marijuana caused few problems precisely because it was limited to legitimate medical usage, they insisted that the limitation itself was a fraud. They argued that sympathetic medical practitioners were making the substance widely available to “patients” alleging nonexistent aches, pains and anxieties. They were not always wrong, I’m sure. Statistically, states that allowed the prescription of marijuana probably looked unhealthier after the fact than before, due to the increase in those reporting certain ailments to their doctors.

But this was an example of another debating strategy I have often tried to instill: You should never lie, but on the other hand, just because something is true is not in itself a reason to say it. What opponents helped demonstrate in exposing sham medical claims is that widespread recreational marijuana use had no significant negative effects on those who do not indulge in it.

It’s a conclusion that has been greatly strengthened by the inability of the opponents to produce horror stories of the social problems legalization has wreaked in Colorado and Washington where it has now been in effect for some time.

Having studied this question of the societal effect of legalization for 43 years, I was not surprised. When I filed a legalization bill in the Massachusetts legislature in 1972, I prepared myself by reading the opposition’s case. Most prominent was the report of the commission appointed by Richard Nixon to support prohibition. At the time, it made me very happy—the same giddiness I always feel when I read my opposition’s best case and learn that it is, in fact, very weak. All they could come up with was that it would be bad for the economy because it would make people less eager to work hard. It struck me then and now as a sequel to Pirandello’s play “Six Characters in Search of an Author,” a lot of commissioners in search of a rationale.

Today, with tens of millions of people living where marijuana use is legal, there is still no coherent narrative that demonstrates that society suffers. Opponents are where the same-sex marriage opponents were a few years ago—arguing that personal choices that affect only those who indulge are so offensive to non-users that they should be outlawed.

That’s a position that’s clearly unattractive and untenable, from a debating standpoint and a public policy one. The lack of appeal of this position is why I anticipate more and more state approvals of legal marijuana—and at some point an end to federal prohibition—just as we saw in the politically very similar case of marriage.