A Clash Avoided (Update)

It could have been a monumental clash that would get federalists and statists stockpiling pithy slurs. Instead, it ended, as least for now, in more of a whimper. It’s unfortunate as the case teed up the ball about as well as possible for a pressing issue to be confronted.

Paul Curry had accused MillerCoors of violating Colorado’s employment discrimination statutes. The Chicago-based brewer fired Curry, who has hepatitis C, and osteoarthritis, for violating the company’s drug-free workplace policy.

Curry was a medical marijuana patient. While that would make him a heinous criminal in some states, it made him just another person receiving medical treatment in Colorado. Under federal law, a patient cannot be discriminated against for being sick. But federal law also proclaims marijuana to be a Schedule I drug, meaning that it has a high likelihood of abuse and no medical benefit whatsoever. Even if Sanjay Gupta changed his mind about pot, President Obama has not. At least from his adult position, if not the opinion the president held in his youth.

The case came before Senior District Judge John Kane, who has shown himself to be remarkably bold in his approach to criminal justice issues, particularly the War on Drugs. While a civil action, its core was pot, which is either a nefarious weed or a necessary palliative medicine, according to which government pays your salary.  The plaintiff lucked out when Judge Kane’s name was pulled from the wheel.  Or so he thought.

“Enforcing its policy is a lawful basis for MillerCoors’ decision to discharge Mr. Curry,” Senior U.S. District Judge John Kane said in his order, issued Wednesday.

“Despite concern for Mr. Curry’s medical condition, anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct,” according to the order.

It appears that the decision relied on a Colorado Court of Appeals ruling:

[Judge] Kane’s decision follows an April ruling by the Colorado Court of Appeals  upholding Dish Network’s firing of a quadriplegic man. In that case the court said that because marijuana is illegal under federal law, employees have no protection to use it at any time.

But then, the Colorado Court of Appeals lacks the authority to hold that federal designation of marijuana as an illegal Schedule I drug violates due process as an incomprehensibly arbitrary and capricious conclusion.  Not even Chevron deference could save this puppy, based upon the empirical evidence of how many people have watched Reefer Madness.

Unlike the Colorado court, Judge Kane had the authority to rule that if a physician could lawfully prescribe marijuana as a medication, that its use was bona fide, that the patient was indeed ill and in need of medical care, and that all of this was perfectly lawful and proper under the laws of the place where the physician was rendering care, then a federal prohibition based on, well, little more than political inertia with neither science nor logic behind it, must fall.

Nope. Not this time.

[Judge] Kane said termination for misconduct doesn’t become termination for disability just because the “instigating” misconduct relates to a disability.

It’s not that such a position lacks reason, but the “just because” language always seems to mask the problem that was artfully avoided. And in this case, it was a huge problem in need of some bold consideration.  The instigating misconduct was that Paul Curry took marijuana to treat his disability.  Nobody argues that MillerCoors can fire disabled workers for being disabled. They can’t. Nobody argues that Curry wasn’t disabled.  He was.  And nobody argues that his treatment with medical marijuana wasn’t otherwise lawful and proper under the laws of the State of Colorado. It was.

But when you put these things together. Curry gets fired and loses federal protection because pot remains evil on federal property. If Curry’s right not to endure discrimination for his disability includes his right to be medically treated as well, then the distinction by federal fiat that disapproves of otherwise lawful medical treatment with marijuana creates a conflict in need of resolution.

At the heart of this conflict is whether the continued placement of pot on Schedule I, and therefore wholly unavailable as a lawful medical treatment in the eyes of the federal government, can be justified. While there is no good analogy for marijuana, consider what it would be like if some nutjob Congress decided that antibiotics had no medical benefit and its use was illegal. Should the law allow people to suffer for lack of treatment because an irrational decision was made and perpetuated?

Judge Kane’s decision, in an odd sort of way, reminds me of Potter Stewart’s decision in Geduldig v. Aiello, explaining that pregnancy disability discrimination isn’t gender discrimination because not all women choose to get pregnant.  Just because only women can get pregnant was no reason to conclude that the discrimination was unlawful. Here, just because the medicine used to treat Curry’s disability is marijuana is no reason to conclude he should be denied protection from disability discrimination.

Oh wait. Judge Kane avoided that issue by taking the other path, that if the medicine was illegal under federal law, it converted his disability treatment to unprotected misconduct, and used that misconduct as the excuse for his “just because” rationale.

Too bad. He avoided the conflict at the expense of a disabled man fired for treating his disability with a medication on a federal list because people in Washington are too cowardly to admit that they saw a propaganda movie about it when they were high in high school.

True, the better solution would be for marijuana to be removed by Congress or the Executive from Schedule I and placed on a list alongside other effective medications that doctors can prescribe. But when the ball is teed up as perfectly as it was here, it was ready for Judge Kane to drive it straight for the cup.  Instead, he conceded the hole.

Crisis avoided. Nobody was saved.

Update: A bit more info about the case has come across (Miller Coors Order), that somewhat alters the analysis. First, the action was commenced in state court under state law, and was removed by the defense to federal court. Thus, I understand that the federal constitutional issue was neither alleged nor argued, and perhaps that left the court with little to go on to reach the broader conflict.

Which raises a collateral problem: If you neglect to plead and argue great issues, they don’t get decided.  Orthogonally, if you do so poorly, they do get decided, but against you (and make precedent for the rest of us). Nobody ever said it was easy being a lawyer. Or a judge.


5 thoughts on “A Clash Avoided (Update)

  1. Onlooker

    So where is exactly in our Constitution is the enumerated power that gives Congress the authority to make pot illegal? I know, I know…

    1. SHG Post author

      Congress has the police power to make interstate burping illegal. But when it turns out that burping is the cure for cancer, well…

  2. Chris Ryan

    I am always torn on these type issues. I am for medical marijuana but against the right to use it whenever you want. If you hold a job that doesn’t allow you to work while on legal narcotic prescriptions, then smoking a joint would fall in the same area.

    Sadly here in California, the last few attempts at expanding medical marijuana laws have tried to incorporate the right to smoke wherever and whenever right into the law and have lost badly.

    As far as the fact that is schedule 1, I always love pointing out to people what some of the sch 2 drugs are and then asking them to explain why that’s fair (morphine, oxycodone, meth and powdered cocaine)

    1. SHG Post author

      If the use of medical marijuana (or any other medication, for that matter) impaired his ability to perform his job, that would be a different matter. But that wasn’t the case here, and there was no dispute to the contrary. He got nailed in a tox screen, and that was that.

  3. noah

    If you neglect to plead and argue great issues, they don’t get decided. Orthogonally, if you do so poorly, they do get decided, but against you (and make precedent for the rest of us).

    I needed to see this today: these are my marching orders for the rest of the week. Thanks.

Comments are closed.