For decades, support for legalization of marijuana has been rising.  Advocates see it as one of those things that is inevitable, that ultimately everyone will feel the same way about marijuana as we feel about alcohol--which is to say that some small minority will think it one of the evils of society and some will destroy their lives with it, but most will treat it as a recreational option, a benefit of chemistry, a way to relax.  Last year support passed fifty percent; it was expected to continue to rise.

The surprise is that it did not; in fact, it fell back below fifty percent, such that the majority which marginally favored legalization now once again marginally opposes it.

What is particularly interesting, though, is that there was a significant drop in favor in Colorado in the wake of its legalization.  People in Colorado who supported legalization now think they made a mistake.  There are problems; there are problems no one foresaw.

I have long held a conservative attitude--I do not mean that I hold to conservative political policies per se, but rather that I have long opposed change for its own sake.  Not everything that is needs to be changed; not everything "progressive" is better than what we have and do now.  We are deceived by our own language--we use words like "progress", "advance", and "moving forward" when what we really mean is changing, moving away from what is.  If we stop to consider it, making random changes in our laws and our societal structures is a bad idea, because entirely random changes are as likely--or probably more likely--to make things worse as to make them better.  We do not make random changes, of course.  We make changes we believe will be improvements.  Yet we make them without much consideration of where it will lead, of how it will impact our future.  Our definition of "improvements" is intentionally nebulous; it simply means that some of us expect to prefer the new version of the world, that some who are unhappy with the way things are would change the world, not to anything else, but to that which personally pleases them more.  We ignore the butterfly effect possibilities, expecting that because this is something we want in our society the outcome will of necessity be entirely good.

I do not favor legalization of marijuana, and the argument that it is not worse than alcohol fails with me on two levels--one, that it is not entirely clear that it is not worse than alcohol, and two, that our problems from alcohol are already far worse than we should allow.  The fact that we cannot eliminate the problems created by alcohol overconsumption in this country is hardly a good reason to complicate things with the legalization of marijuana and the additional problems which will be connected to it.  I am not, however, adamantly against it.  In fact, I think it's probably good that Colorado has legalized marijuana--not, perhaps, for Colorado, but for the rest of us, so we can see what happens when marijuana is legal.  It remains to be seen how they deal with their new problems, and whether the rest of us conclude that this is a good idea or a big mistake or, more likely, a mix of benefits and problems to be weighed in deciding our futures in the other states.

I have a question for Colorado.  Perhaps they have answered it; I have not read through the legislation related to the legalization of marijuana.  Given that recreational use of the substance is now legal, does that mean that it is now illegal for employers to test for it, or to fire someone for using it?

I ask because I can think of quite a few jobs for which I would want the person performing them to be sober in every sense of the word.  Many manufacturing jobs are dangerous, with serious employee injuries even when everyone is attentive--and the injury does not always fall upon, or soley upon, the inattentive worker.  I would not want to work on an assembly line with someone who was functionally impaired, and in most places I do not have to--the plant managers are eager to prevent worker injuries, and will remove someone from the building who is obviously intoxicated.  There are other dangers in other jobs, though.  I would not want those responsible for handling the books in the bank to be compromised, nor the mechanics who maintain my vehicle.  Even fast food restaurant jobs can be unsafe for someone whose faculties are infacilitated.  For nearly any job you can identify, a sober worker is a safer worker--not to mention a better one.

From many jobs, you can be terminated if you come to work noticeably intoxicated, sometimes with sometimes without a warning system or a rehabilitation option.  The problem with drugs, though, is that they are not as easy to recognize--someone can be just as dangerous on some drug other than alcohol, but not be recognizably so.  Drug testing, in its present state, generally can identify whether someone has used a drug "recently", but not whether he is under the influence at this moment.  Can an employer dictate that his employees must pass drug tests that prove that they are not using legal non-prescription drugs when they are not at work, as a safety and efficiency requirement?  Or would that be illegal?

Of course, that does not apply in those states in which marijuana is still illegal; but if other states are considering whether to legalize it, these are the kinds of questions that need to be addressed.  Can your employer fire you for engaging in a perfectly legal recreational activity?  How much of a rational basis connection does there have to be to job safety and performance?  How do we reach those answers?

Last week (Drug testing and legalization, above) we raised the question:  if marijuana use is legal in your state, is it legal or not legal for your employer to require drug tests for it, and to fire you for using?  An astute reader pointed us toward some of the current answers, and the present answer is, it is probably legal--although if you work in Arizona or Delaware, probably not.

In Colorado, the Colorado Court of Appeals has ruled (for Dish Network against Brandon Coates) that even though Coates used marijuana under the state's medical marijuana use law, he could be terminated by the company for failing a drug test.  The court determined that the state's "Lawful Off-Duty Activity Statue" did not cover use of marijuana, because it remains illegal under federal law.  This is the intermediate level of the Colorado court system; an appeal has been made to the Colorado Supreme Court, but initial comments suggest that that court is inclined to uphold the Court of Appeals ruling.

Meanwhile, the Washington state Supreme Court, in Roe v. TeleTech Customer Care Mgmt. LLC, Dkt. 83768-6, ruled that the state's Medical Use of Marijuana Act ("MUMA") does not prevent employers from terminating employees who use the drug legally within the state.  The Washington law specifically stated that it had no effect on employment situations.  The court rejected a variety of claims in this case, including stating that a requirement to accommodate persons with disabilities specifically excludes any requirement that federal law be violated in the process.

Similar rulings have come out of state Supreme Courts in California (Ross v. RagingWire), Montana (Johnson v. Columbia Falls Aluminum Company), and Oregon (Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries), and from a Federal District Court in Michigan (Casias v. Wal-Mart Stores, Inc.).  The U. S. Supreme Court recently refused to legalize marijuana use by court decree, putting the issue of federal regulation on Congress.

This is not universally the case.  Laws in Arizona and Delaware specifically protect authorized medical marijuana users from employment discrimination, excepting impairment on the job or drug use policies necessary for compliance with federal law, such as defense contractors.  Other states have less explicit laws which offer some protection to employees using marijuana under the direction of a physician, including Connecticutt, Rhode Island, Maine, and possibly (in a new law) Illinois.  In the main, however, it appears that your employer has the right to terminate you if you fail a test for marijuana use, even if it is legally authorized medical use in your state and there is no evidence that you were using it on the job--even in Colorado.

Alcohol is a legal drug; it seems fairly certain that despite the massive societal costs in traffic and other accidents, lost worker productivity, destroyed homes and lives, it will remain legal.  Yet it is not entirely unregulated, and it might be worth considering better ways to regulate it.  This is of particular significance as the country is considering legalizing other substances which could impair performance, such as marijuana.  Making it legal to use such substances recreationally makes it more likely that there will be the kinds of negative consequences (such as traffic accidents) from use.

Alcohol is, of course, regulated.  It is a crime to sell it or to give it to minors, with the very controlled exceptions of parents serving it within their own homes and religious organizations serving it in small quantities in rituals.  Anyone of legal age can purchase it and consume it.  It is assumed that all adults will drink responsibly.  That is patently false, but it is the presumption of the law.

Of course, if you fail to drink responsibly, you are still permitted to drink; however, if you drink and drive we will deprive you of your right to drive.  Your driver's license will be suspended, possibly revoked.  You will also pay fines, and you might face jail time.  This, though, does not prove to be all that practical a solution.  For one thing, people who are intoxicated are irresponsible by definition; they lack the ability to make sound choices, and to recognize their own inability.  Nearly every drunk who is conscious believes himself to be sober enough to drive, and the drunker he is the less likely he is to believe he is impaired.  He also is less likely to remember that his license is suspended.  For another thing, in many parts of this state, at least, depriving someone of the ability to drive often deprives him of the ability to work, stranding him in a situation in which he is more likely to drink more, part of a downward spiral that turns working class functional alcoholics into street beggars.

Perhaps, then, we should consider a different approach.  We should license drinking.  Anyone who wishes to consume alcohol must obtain a license, and it would be a crime to consume alcohol without a license, and a crime to sell or serve or provide alcohol to anyone who does not have a license.  Licenses would be available for a reasonable fee--money to fund alcoholic treatment programs and alcohol-related accident costs--to anyone who meets the minimum age requirement; a simple test covering the laws concerning alcohol use might be given.  It would have to be presented in bars, restaurants, liquor stores, even at private parties, much as it is required now to present proof of age for cigarettes and alcohol purchases, but for everyone.  Then if someone is stopped for driving while under the influence, we can suspend their drinking license, and so make it more difficult for them to obtain alcohol.  The same penalty could be applied to convictions for "drunk and disorderly", and for parolees (who are technically banned from consuming alcohol while on parole) and other persons whom we determine should not be legally permitted to drink, and we could suspend the drinking license of anyone convicted of providing alcohol to unlicensed drinkers.  If we make unlicensed drinking a crime, it becomes easier to stop people from driving under the influence.

One of the benefits of such a program is that it is easily expanded to cover other drugs, should other drugs be legalized.  If we want to make marijuana legal, we undoubtedly want to control who is permitted to use it, and to be able to prevent people from using it whose use presents a clear and definable threat to themselves or others--people who drive under the influence, for example.  It is probably easier to prevent a habitual abuser from using than to prevent an impaired user from driving while impaired.

There would of course be problems to resolve.  How would the program handle out-of-state guests?  Would it be a crime for an unlicensed resident to drink while out of state and return to the state under the influence?  These are details.  The core idea is sound, and worth consideration.  Keep alcohol legal; make it harder to obtain by those who cannot use it responsibly.

Then if we decide to legalize other drugs, we will already have a system in place to bring such substances into use responsibly.