Joel Schumm: An Indiana constitutional right to use marijuana?

Most of Indiana’s neighbors have legalized marijuana for recreational (Illinois and Michigan) or medical (Ohio) use. The path to decriminalization has almost always been through state legislation or voter initiative. But despite strong public support for decriminalization, legislative efforts in Indiana have gone nowhere.

The high point (pun intended) was a committee hearing in 2023, and the workforce impact of cannabis legislation is now before a summer study committee.

Legislative efforts will continue but advocates for marijuana reform should also consider a different path: the courts. In 1975 the Alaska Supreme Court invalidated that state’s statute prohibiting marijuana possession, finding that “no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.” The decision was grounded in Alaska’s constitutional right to “privacy.”

Article 1, Section 1 of the Indiana Constitution does not mention privacy but does broadly protect “life, liberty and the pursuit of happiness.” In 2018, I argued that this provision should protect from criminal prosecution the possession of a single marijuana blunt by an adult Hoosier who not operating a vehicle or otherwise affecting anyone. The Indiana Court of Appeals rejected the argument, in part, because the claim had not first been presented to the trial court.

Now would be a good time to try again, especially with a different litigant who first raises the challenge in a trial court. Indiana takes an originalist view to interpreting our state constitution — focusing on “the language of the [constitutional] text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions.”

The Indiana Supreme Court recently had quite a bit to say about the fairly robust protection of Article 1, Section 1, in upholding Indiana’s 2022 abortion ban. The justices wrote: “Indiana’s long history of generally prohibiting abortion as a criminal act — coupled with Plaintiffs’ acknowledgment that protecting prenatal life falls within the State’s broad authority to protect the public’s health, welfare, and safety — suggests that the common understanding among Article 1, Section 1’s framers and ratifiers was that the provision left the General Assembly with legislative discretion to regulate or limit abortion.”

Through the same lens of originalism, a challenge to the statute criminalizing marijuana possession would fare better. Possession or use of marijuana was not illegal when the 1851 Indiana Constitution was written—or for decades later.

Although the State may point to concerns about minors or drivers using marijuana, a narrow challenge would take the public health, welfare, and safety concerns mostly off the table, as in the Alaska case referenced above. A veteran who is suffering from PTSD would be an ideal litigant to argue that they should not face jail time for using a substance that decreases the severity of symptoms. Plaintiffs in the abortion case instead brought a facial challenge to a statute, which is “the most difficult challenge to mount successfully”; if there is “at least one circumstance under which the statute can be constitutionally applied,” the challenge fails.

The abortion decision specifically references the fundamental right to “patient self-determination,” which is at the core of medical use of marijuana. A hearing in a trial court would allow advocates for decriminalization to offer powerful supporting evidence with little the State could offer in response. Throughout such litigation the State’s call for more regulation and less individual liberty would be at odds with the “Lockean Natural Rights Guarantee” of Section 1: “citizens do not relinquish natural rights beyond what is reasonably necessary to secure the natural rights of the broader community.”

In short, while continuing the years (or decades-) long legislative track to decriminalization, reform advocates should consider bringing narrow court challenges to the marijuana statute. With originalism, Alaska, and medical evidence on their side, they have nothing to lose and much to gain.

Joel Schumm is a Clinical Professor of Law at the Indiana University Robert H. McKinney School of Law where he teaches Indiana Constitutional Law and other courses. This commentary first appeared on Send comments to [email protected].