Ohio’s Cannabis Licensing Requirements: Racial Justice or Discrimination?
August 29th, 2016
Policy, Top News
Staying true to form, Cannabis has once again proven itself to be both controversial and deeply divisive. In June 2016, Ohio passed its Substitute House Bill 523 which legalized the cultivation, sale, and use of Cannabis by authorized companies and individuals. The mechanics and full regulatory provisions of the licensing process have yet to be released but to the chagrin of some (and delight of others), the bill calls for 15% of its dispensary, processor, cultivator, and laboratory licenses to be reserved for minority groups. Specifically, the bill designates the targeted minority groups as those individuals who are ethnically Black, Asian, Hispanic, or Native American.
Naturally, depending on one’s political orientation and broader perception of the alleged institutionalized economic barriers minority groups face, this provision is either encouraging or highly disconcerting. Of course, this particular social discussion is beyond the scope of this article and instead, we will strictly consider the constitutional issues at play when racially based legislation is passed.
The equal protection clause of the 14th amendment was originally instituted as a tool to combat racial discrimination and asserts:
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 critical clause of the amendment for our purposes is the provision asserting that a person cannot be denied the equal protection of the law. Simply, the law must be applied to everyone uniformly and in the event that an individual is excluded from a legal right as a function of his race, the 14th amendment is (usually) violated. Indeed, the court will nearly always strike down a racially based law upon applying its formidable strict scrutiny standard of review (requiring the Government to prove the law is necessarily and narrowly tailored to achieve a compelling government interest – this is a virtually unattainable feat).
Here, the 15% licensing requirement for minority groups will necessarily mean that whites and other individuals who are not members of the designated protected classes will not be able to secure licenses because of their race. Ostensibly, this would seem to be a clear 14th amendment violation – after all, these unprotected classes are being discriminated against and are not afforded the same rights as the designated minority groups simply because they were not born to the correct racial/ethnic group.
Proponents of this provision have and will continue to argue that this 15% licensing requirement is merely a remedial measure meant to combat decades of racial injustice and is no different than any other affirmative action schema whereby the government affords special protections and advantages to historically disenfranchised groups. Thus, the licensing requirement is not discriminating against whites, in as much as it is leveling the playing field for otherwise underprivileged minorities.
Opponents, conversely, will note that the Supreme Court has only upheld affirmative action plans for government contracting when there is a clear record of racial injustice. As this is the first medical marijuana bill enacted in the State of Ohio, there is no precedent whereby it can be shown that minority groups were discriminated against. Finally, opponents will further argue that there is a significant difference between permitting affirmative action plans whereby the government spends its money, in the form of issuing contracts, and not allowing whites to apply for a given type of license.
Ultimately, it is impossible to know how a Supreme Court would rule if the case ended up in its chambers but regardless, history will be made and important precedents will be set.
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