Will the Garden Grow?

By Sarah Phelan, Metro Santa Cruz. Posted December 8, 2004.

"WAMM is a club you literally have to be dying to get into," says Val Corral, co-founder of the Wo/Men's Alliance for Medical Marijuana in Santa Cruz, California.

As if to illustrate her point, the photos of 140 WAMM members who've died cover "The Wall of the Dead" in the collective's office. They are only barely outnumbered by the group's 175 surviving members, including spiritual luminary Ram Dass and novelist Robert Anton Wilson, whose access to pot's pain-relieving, nausea-inhibiting properties hangs in the balance on the opposite coast.

And yet, the value of medical marijuana itself will hardly be considered in the landmark medical marijuana case currently before the Supreme Court. Recently, Supreme Court justices heard Raich v. Ashcroft, a case centered on two chronically ill California women, who want the feds to stop interfering in their medical marijuana use.

Though 11 states (Montana is the most recent) allow some medical marijuana use, the federal government continues not to recognize marijuana's medical usefulness, nor to address the question of legalizing it across the board.

Instead, the Supreme Court debate on the case, Raich v. Ashcroft , has been framed in terms of interstate commerce. Bruce Mirken of the Marijuana Policy Project has been dumbfounded to hear the justices invoking Wickard v. Filburn, a 62-year-old Supreme Court decision used to uphold Congress' efforts to support grain prices by controlling wheat production. But he holds out some hope for a medical marijuana victory.

"Certainly some previous decisions suggest some justices have respect for states' rights and the commerce clause," says Mirken. "Theoretically, the feds' ability to ban illicit drugs comes from its ability to regulate interstate commerce. But the feds arguing that two women in California, using their own soil and equipment, and not selling anything, are engaging in interstate commerce – I'm sorry, but that's crazy !"

Crazy like a radical right-wing activist judge.

"It looks like Wickard to me," said Justice Antonin Scalia on hearing preliminary arguments on Nov. 29, including those from attorneys for Angel Raich and Diane Monson, who argued that the pot their clients use is not grown for money and never crosses state lines.

Said Scalia of marijuana cultivation, "Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere."

Waves of Grain

The Supreme Court's ruling is expected by spring 2005, and will quickly reverberate across California, since Raich, who lives in Oakland, has the exact same thing at stake as WAMM: protection from the feds.

Raich, who uses cannabis to treat scoliosis, endometriosis, severe headaches, chronic nausea, seizures, uterine fibroid tumors and a brain tumor, first joined forces with Diane Monson, who grows and uses pot to treat severe back spasms, two years ago. Their alliance began after DEA agents raided Monson's garden in Oroville, in Butte County. After a three-hour standoff with local law enforcement, the federal agents seized and destroyed Monson's six pot plants. Outraged, Raich and Monson petitioned a federal district court in California to force the DEA to butt out of their doctor-prescribed medical marijuana use. Though that court refused to grant their request, the 9th Circuit Court of Appeals subsequently ordered the lower court to issue a preliminary injunction.

WAMM, whose garden of 167 plants was raided a month after the Monson bust, subsequently won a similar injunction against the feds. Until it was issued, the Corrals – who were arrested during the 2002 raid, but released the same day – were living in legal limbo, thanks to a clause in the Controlled Substances Act that allows the feds to forfeit people's property up to five years after a bust.

Their federal fears temporarily assuaged, the Corrals began growing another pot garden, including a monster named Victoria which WAMM cheekily billed as "Our country's first federally protected marijuana plant."

The U.S. Justice Department, however, immediately appealed the Raich injunction to the Supreme Court, hence the Nov. 29 hearing. Should the justices rule against Raich, the Corrals would reopen themselves to the possibility of forfeiture if WAMM grows another garden next spring.

And so far, the case does not appear to be going in their favor. Supreme Court justices met the Raich/Monson states' rights defense with more than a little skepticism. Acting Solicitor General Paul D. Clement argued that it would be impossible to allow medical use of marijuana while banning recreational use. And the U.S. Justice Department maintains there is no separation between private marijuana use and interstate commerce, insisting that homegrown pot stimulates the illicit drug market by increasing the amount of marijuana available in the nation.

Sarah Phelan is news editor of Metro Santa Cruz.

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