With the election less than a week away, I keep finding myself in discussions about the ACLU's support for Proposition 19--a proposition on California's November ballot that would, among other things, decriminalize personal use and possession of marijuana. When I explain that one of the primary reasons we support Prop 19 derives from our aim to end the disparate impact marijuana laws have on African-Americans and Latinos, people suggest that the recent passage of S.B. 1449 in California - which reduced simple possession of marijuana from a misdemeanor to an infraction - should quelch our concerns about the impact the failed War on Drugs has had on communities of color. As a result, time and again I'm asked whether S.B. 1449 makes Prop. 19 unnecessary.

Unfortunately for the young African-American and Latino men who are most affected by the unbalanced enforcement of our drug laws, this simply isn't so. And even the No on Prop. 19 campaign agrees. A few weeks ago, I had the opportunity to moderate a debate at Loyola Law School between Stephen Gutwillig, the California State Director of the Drug Policy Alliance ("DPA") who argued in support of Prop 19, and John Redman, a representative of No on 19. When I asked Mr. Redman whether S.B. 1449 would end the disparate impact marijuana laws have on people of color, he admitted it would not.

That's because there's no evidence that changing the crime of marijuana possession from a misdemeanor to an infraction will change the double standard of enforcement that so negatively impacts people of color. In fact, S.B. 1449 makes it even easier for officers to ensnare young African-Americans and Latinos in the criminal justice system disproportionately by issuing citations to them. The drug laws so unfairly impact Latinos--as outlined in a

The American Civil Liberties Union and its three California affiliates today sent a letter to U.S. Attorney General Eric Holder and Gil Kerlikowske, Director of the Office of National Drug Control Policy (ONDCP), arguing that there would be no legal basis for the Department of Justice (DOJ) to sue to overturn Proposition 19 should it be approved next month by California voters, and urging the Justice Department to not change its current law enforcement focus on major criminal activity in favor of new enforcement activities against California marijuana users.

The letter asks Holder and Kerlikowske to stop threatening costly litigation and the deployment of federal drug police to arrest individuals who might use marijuana if the state enacts the proposition, which would allow adults 21 and older to possess and grow small amounts of marijuana for their personal use and allow cities and counties to regulate and tax commercial sales. The letter calls such rhetoric “unnecessarily alarmist” and says it does little to foster a balanced discussion of a legitimate policy issue.

“Proposition 19 would remove state criminal penalties for certain adult marijuana use,” says the ACLU's letter. “The new law would not require anyone to do anything in violation of federal law. There would be no positive conflict.”

News reports have indicated that federal officials have not ruled out following a recommendation by nine former Drug Enforcement Agency (DEA) chiefs to sue to overturn Proposition 19 under a wrongly-held belief that it would violate the Supremacy Clause of the U.S. Constitution. In a letter to the nine former DEA chiefs made public earlier this month, Holder said he will “vigorously enforce” federal laws against marijuana in California, even if Proposition 19 is approved.

The ACLU's letter argues that states do not have to march in lockstep with the federal government's prohibition of marijuana possession and that California can decide for itself whether it wishes to remove state criminal law penalties for adult marijuana use. An explicit clause of the Controlled Substances Act, passed by Congress in 1970, holds that preemption of state drug laws is limited to a narrow set of circumstances where there is a “positive conflict” between state and federal law “so that the two cannot consistently stand together.”

The ACLU's letter also highlights the fact that African Americans and Latinos are disproportionately arrested for low-level marijuana possession in California and across the nation even though their usage rates are the same as or lower than those of whites.

“The ACLU took heart from Director Kerlikowske's acknowledgement that the „war on drugs - has failed,” states the ACLU's letter. “But instead of scaling back the rhetoric associated with that ineffective and out-of-date campaign, it appears the administration would resist California's modest attempt to begin dismantling one of the defining injustices of our failed drug policies: that the war on drugs has become a war on minorities.”

A new report released last week shows that from 2006 to 2008, police in 25 of California's major cities arrested blacks at four to 12 times the rate of whites.

“The historical and racially disparate enforcement of marijuana laws is a primary reason why [the ACLU of Northern California, the ACLU of Southern California and the ACLU of San Diego and Imperial Counties] have endorsed Proposition 19,” the ACLU's letter reads.

The ACLU's letter to Holder also questions why the federal government's response to the enactment of Proposition 19 should be any different than its approach to the existence in California and 13 other states of laws allowing the use of marijuana for medicinal purposes.

“We commend DOJ's instruction last year to U.S. attorneys that prosecuting medical marijuana patients who comply with state laws should not be a federal law enforcement priority,” the ACLU's letter reads. “The very same standards should apply if Proposition 19 is enacted. Regardless of the federal government's disagreement with California's choice to amend state criminal law, it makes no more sense for the federal government to waste scarce resources policing low-level, non-violent marijuana offenses after Proposition 19 passes, than before.”

Californians have every right to enact Proposition 19, the ACLU's letter asserts, in an effort to curtail the wasting of criminal justice resources on the policing of low-level adult marijuana offenses and to help end the selective enforcement of drug laws.

“This is about priorities,” the ACLU's letter reads. “Given the state of the economy, record unemployment and foreclosure rates, and thousands of troops deployed abroad, should voters enact Proposition 19, we hope the federal government will re-evaluate its priorities and use scarce federal enforcement resources wisely.”

We should all thank Christine O'Donnell for asking the innocent question – “That’s in the First Amendment?” – because it provides us an opportunity to review and discuss first principles in our constitutional democracy.

During a debate, which turned to the issue whether creationism should be taught in public schools, O'Donnell questioned her opponent’s assertion that the First Amendment calls for the separation of church and state.  "The First Amendment does?" O'Donnell asked.  "Let me just clarify: You're telling me that the separation of church and state is found in the First Amendment?"

Her opponent, Chris Coon, responded by quoting the First Amendment’s prohibition that “Congress shall make no law respecting an establishment of religion."  "That's in the First Amendment?" O'Donnell again asked. Yes. Yes, it is.  The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment thus sets forth a dual guarantee of religious liberty through what’s known as the Establishment Clause and the Free Exercise Clause.

Together, they operate to protect the religious liberty and freedom of conscience of all Americans. While the First Amendment does not explicitly refer to the separation of church and state, the framers designed the Establishment Clause, in the words of Thomas Jefferson, whose bill in the Virginia legislature later became the foundation for the First Amendment, to “erect a wall between church and state” –  a wall that “must be kept high and impregnable.”  The Supreme Court has long recognized Jefferson’s metaphor as the guiding principle for understanding the Establishment Clause. The Establishment Clause does not reflect hostility to religion.

To the contrary, “The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.” Sch. Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 226 (1963). In our democracy, then, government “must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and nonreligion.”  Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968). The framers prohibited government support or endorsement of religion out of a conviction that the best way to ensure religious freedom was to separate the church from the state so that government could not interfere with or suppress religious views and practices.  Religious conflict and persecution pervaded early America, even though most settlers fled England to escape religious intolerance. For example, the Puritans established the Massachusetts Bay Colony as a theocratic state in which Catholics, Quakers and others regarded as heretics were subject to the death penalty. The Catholics who founded Maryland persecuted Protestants and even some Catholics who professed their faith in what were deemed unconventional ways

Gradually, though, church-state separation came to be seen as the key to ending the destructive religious warfare and ensuring religious freedom for all. The framers, moreover, intended the Establishment Clause not only to protect members of minority faiths from government action that is contrary to their religious beliefs, but also to protect members of majority faiths from government action that supports their religious beliefs. Indeed, the record of the adoption of the Establishment Clause reflects a strong concern that government favoritism of a particular religious sect actually would harm that sect, not benefit it.

In commenting on that history, the Supreme Court repeatedly has stated that the Establishment Clause’s “first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. . . .” Engel v.Vitale, 370 U.S. 421, 431-32 (1962) (citing James Madison, Memorial and Remonstrance against Religious Assessments (1785)). We urge everyone to read the rule prohibiting the establishment of religion that is neatly stated in the words of the First Amendment.