Must Everything Legal Become Mandatory?

Earlier, I wrote about the Abigail Alliance case, in which a federal appeals court first rightly held that the Constitution likely prevents the FDA from blocking terminally ill people from obtaining experimental drugs that have passed an initial safety review, then wrongly reversed its decision and upheld the FDA’s ability to ban access to such drugs even by terminally ill people.

I defended the rights of the terminally ill plaintiffs, and noted that some critics of their challenge did not seem to understand that the Abigail Alliance did not claim an entitlement to such drugs at third-parties’ expense; they merely wanted the government to butt out and stop blocking their attempts to obtain drugs that they felt might save or extend their lives. They weren’t asking for a handout, but for the right to be left alone by meddling government bureaucrats.

Now it appears that some groups that approved of the challenge didn’t get it, either. In California, whose state law permits use of medical marijuana, court briefs filed on behalf of a medical marijuana user demanded that he be allowed to sue his private employer because it didn’t want to employ pot users who fail drug tests. They cited the initial (subsequently-reversed) ruling in the Abigail Alliance case, which held that the government’s ban on access to experimental drugs by the terminally ill was likely unconstitutional, as supposedly conferring an affirmative right of “access” to drugs that was enforceable not just against the FDA but against private parties, like private employers.

In a 5-to-2 vote, the California Supreme Court recently rejected this argument in Ross v. RagingWire (2008), noting that although California state law does not ban medical marijuana, federal law currently does.

As a matter of federal constitutional law, the argument that a private employer must employ medical marijuana users would be recognized as wacky, even if the Constitution prevented the government from banning medical marijuana. Nothing is more well established under the federal Constitution than the “state action” doctrine, which emphasizes that the Constitution regulates only the government, not private parties, and creates no access to services by private parties. For example, although the federal Constitution bans censorship, private shopping malls are free to prohibit protests and leafleting. And although the Constitution bans governmental race and sex discrimination, private entities not covered by civil rights statutes are free to so discriminate (see United States v. Morrison (2000)).

California law, however, is different, giving rise to such wacky arguments. Ignoring the state-action doctrine, its courts have interpreted many state constitutional provisions (such as those dealing with privacy, job discrimination, and public protests) as binding not just powerful government officials, but ordinary private citizens and institutions.

The result is that freedom against government oppression has been twisted into an affirmative claim to be wielded as a weapon against one’s fellow citizens. Thus, in Fashion Valley Mall v. NLRB (2007), the California Supreme Court recently ruled 4-to-3 that the state constitution’s free speech clause required a private shopping mall to host hostile speech urging boycotts against its tenants, effectively undermining the mall’s own property rights and the associational rights of it and its tenants. And under the rubric of “privacy,” California employers are forced to turn a blind eye to undesirable employee characteristics and behavior.

Thus, everything the government must tolerate ends up being forced on private employers and private institutions. Only under California’s strange jurisprudence would an employee think he had the right to force an employer to employ him despite failing a drug test.