The Court of Appeals of Kentucky Says That
Science Is Not Rational and Plant Medicine is Literally Evil
Gary Michael Smith Esq. | ©2020
In my cannabis law practice, I make it a point to keep abreast of recent appellate court decisions. I recently came across a plucky little cannabis case from the Kentucky Court of Appeals, Seum v. Bevin, 584 S.W.3d 771 (2019).
This appeal is a failed attempt to reverse dismissal of a lawsuit brought by medical marijuana advocates in Kentucky. The marijuana advocates brought a petition for declaratory and injunctive relief against the Kentucky Governor and the Kentucky Attorney General, asking the court to invalidate the Kentucky statutes criminalizing possession and sale of marijuana for medical purposes.
Although the Court upholds the dismissal of the plaintiffs’ case, its opinion acknowledges the plaintiffs’ desire to use marijuana medicinally was bona fide:
The three appellants in this case use marijuana to treat various physiological and psychological conditions. Seum uses the drug for the treatment of a pharmaceutical opioid addiction and chronic back pain; Stalker uses the drug to treat pharmaceutical benzodiazepine addiction, bipolar disorder and irritable bowel syndrome; and Belcher uses the drug to treat war injuries, posttraumatic stress disorder and alcoholism.
Id. The Court even goes on to agree that plaintiffs had a justiciable question that was not political in nature but was indeed a question of Constitutionality.
Promising as the opinion begins, the Court ultimately rejects plaintiffs’ argument that “Kentucky’s statutes criminalizing the trafficking and possession of marijuana are an arbitrary exercise of legislative power over their lives.” Id. at 774.
The Court’s analysis of legislative purview arrives at the predicable conclusion that legislatures have agency over public health and safety. Of course, they do. But the Court arrived at that decision by rejecting the argument that the State’s rational basis for regulating needed to be based in scientific fact. The court literally rejected science.
When, as in this case, the legislation at issue is not alleged to affect fundamental rights, it is “ ‘endowed with a presumption of legislative validity, and the burden is on [the challenger] to show that there is no rational connection’ between the enactment and a legitimate government interest.” Sheffield v. City of Fort Thomas, Ky., 620 F.3d 596, 613 (6th Cir. 2010) (quoting Harrah Independent School Dist. v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979)). In order to pass rational basis scrutiny, laws “need not be supported by scientific studies or empirical data; nor need they be effective in practice.” Id. at 614. “Rather, ‘[i]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.’ ” Id. (quoting Kutrom Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. 1992)).
Id. at 775. [Emphasis added.] Yes, you read that correctly. The Court of Appeals of Kentucky has opined that science and data do not matter. So long as the State is combating “evil,” the State can legislate on feeling and fiat…and whether the State actually redresses that evil is irrelevant to the analysis. Put another way, the Court of Appeals of Kentucky decided that the Kentucky legislature is free to arbitrarily brand as criminal its most vulnerable citizens who acquire or consume natural plant medicine.
That, ladies and gentlemen, is precisely the sort of reception to expect in the continuing efforts to decriminalize plant medicines. This is not merely a court staying unconvinced in face of compelling evidence. Rather, this is about courts leaning on stare decisis to avoid having to consider that evidence in the first place. It is the same logic set that gave justification to segregation – if the courts won’t engage the analysis, legislatures remain free to arbitrarily label something evil, much like segregation of races was once upheld as good law.
The work continues…
Gary Michael Smith is an attorney and arbitrator and founding member of the Phoenix Arizona-based Guidant Law Firm. He is also a founding director and current president of the Arizona Cannabis Bar Association, board member of the Arizona Cannabis Chamber of Commerce, and contributing author to GreenEntrepreneur.