The Supreme Court decision in Obergefell v. Hodges that legalized same-sex marriage is widely hailed as one of the most important decisions to come from the Court in recent history. While that is up for debate, it has led to the discussion of whether the 14th Amendment applies to the similar structure of state marijuana laws. Namely, if the 14th Amendment to the Constitution can be used to strike down state prohibitions against same-sex marriage then surely it applies in similar force to the conflicting laws of the states and DC. The common argument, at least in our area, is that since DC has legalized marijuana, Virginia’s law shouldn’t apply if a person enters the state with marijuana legally procured from DC.

Full Faith and Credit Clause

The first argument that is offered to strike down Virginia’s law against possession of marijuana is grounded in the Full Faith and Credit Clause of the Constitution. The Full Faith Clause (as it is often known) basically says that other states have to respect the “public acts, records and judicial decisions of every other state.” Simply put, marijuana possession and laws that prohibit it are none of these. For example, if Virginia has a statewide speed limit of 70 MPH and Maryland has a maximum of 65 MPH, it would never be an acceptable defense in Maryland for a Virginia driver ticketed with going 70 to argue that the Constitution recognizes his right to drive 70 MPH while in Maryland.

14th Amendment

The Obergefell decision relied on the 14th Amendment to strike down bans against gay marriage in several states as marriage being a protected fundamental right. The rationale is based on the language in the amendment that says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The key phrase is the last: Equal protection of the laws.

The argument made here is that as a citizen of Virginia, one’s rights should be the same as a citizen of DC or Colorado. Unfortunately, many people have overlooked the operative word here – “Rights.” While many people may believe they have a right to possess marijuana, that is not the case. This is an important point because the Equal Protection Clause of the 14th Amendment applies to rights. Plus, the Supreme Court has already decided substantially the same issue in 2005 in the case Gonzales v. Raich, a case about interstate medicinal marijuana.  A great example of this is the “right” to drive. Every jurisdiction has different laws about driver’s licenses. You can lose your license to drive for twelve points here or eight points there. The difference is that what people perceive to be a right to drive is universally recognized under the law as a privilege.

Suffice it to say that if you go to DC and procure marijuana and bring it back to Virginia and get caught, you will not be able to argue that you should be protected by the Constitution. However, a skilled criminal defense attorney will be able to build a defense for you. If you find yourself in this situation in Northern Virginia, give Jad Sarsour a call today at (571) 316-2639 to set up your initial consultation. He has a proven track record of zealously defending his clients and he will strive to get you the results you deserve.