The Ohio Legislature is dazed and confused about equal protection

Earlier this month, Ohio Governor John Kasich signed Ohio HB523, a bill legalizing medical uses of cannabis in the state. Like every other state to liberalize its regulation of marijuana, Ohio will strictly regulate all new businesses participating in the industry, whether they grow, test, or sell cannabis products at retail. Getting a license to engage in these businesses is expected to be expensive and highly competitive, but potentially lucrative. Like in other states, applicants will likely put up hundreds or thousands of dollars in nonrefundable application fees alongside extensive application packets demonstrating their qualification and fitness to run a cannabis business. Unlike other states though, getting a business license under Ohio’s law will depend on the color of your skin.

The new law requires the state to allocate fifteen percent of new cannabis business licenses to black, Asian, Hispanic, or Native American applicants. The racial quota provision was an addition requested by a group of Democratic lawmakers whose votes were necessary to keep the bill fast-tracked through Ohio’s Republican-controlled legislature. However, Republicans and Democrats from Ohio’s legislative chambers said the constitutionality of the measure never even came up.

The Equal Protection Clause of the Fourteenth Amendment, of course, forbids Ohio from discriminating based on skin color absent a compelling reason. For example, Government entities have justified treating individuals as mere members of a racial category in the past by claiming it necessary to remedy the effects of past discrimination. But here, where the relevant industry has never previously existed, that’s going to be a hard sell. However the state tries to justify its race-based distribution of business licenses, and whatever reasons lawmakers had for inserting the quota in the first place, the law’s racial quota is almost certain to be held unconstitutional.