States across the country passed historic measures during the November 6 election on legal issues that likely will play out soon in the Justice Department and the Supreme Court, including the first time voters approved recreational marijuana use and same-sex marriages. 

Colorado and Washington state passed initiatives that legalize small amounts of marijuana, which will test how kind the Justice Department will be on enforcing federal laws that still maintain the drug is dangerous and illegal to possess. The vote sets up a quandary for federal drug enforcement agencies, as Colorado Governor John Hickenlooper pointed out in a statement late Tuesday: “So don’t break out the Cheetos or goldfish too quickly.”

The DOJ did not address Tuesday whether it will intervene and stop those states from taxing and regulating sales of marijuana in special stores. A DOJ spokeswoman said early Wednesday that the enforcement of the Controlled Substances Act remains unchanged, and DOJ officials “are reviewing the ballot initiatives and have no additional comment at this time.”

President Barack Obama’s administration and campaign officials have not said much on the legalization of recreational marijuana this year. But their past comments show little softening of how the agency plans to treat the issue.

In October, Deputy Attorney General James Cole told “60 Minutes” that: “We’re going to take a look at whether or not there are dangers to the community from the sale of marijuana and we’re going to go after those dangers.” The comment did not make the main version of the television news outlet’s story on marijuana legalization.

In September, nine former heads of the U.S. Drug Enforcement Administration wrote a letter to Attorney General Eric Holder Jr. asking him to oppose legalization of recreational marijuana, according to Reuters. In 2010, Holder opposed legalization of recreational marijuana in California.  

DOJ is also currently fighting an effort to get marijuana’s federal classification as a dangerous drug with no accepted medical use lowered. In the U.S. Court of Appeals for the D.C. Circuit, justice lawyers argued just this month that the plaintiffs, Americans for Safe Access, including a disabled veteran, lack legal standing to pursue the case.  

Same-sex marriage, an issue Supreme Court justices are expected to review this term, also had a breakthrough night. Maryland, Maine and Washington approved same-sex marriage for the first time by popular vote, and voters in Minnesota rejected an effort to ban same-sex marriage.

Previously, voters in different states had banned same-sex marriage or declined to legalize it all 32 times it had been on a ballot.

The justices will take their first look at several petitions involving the constitutionality of same-sex marriage at a November 20 conference committee, including petitions about the federal Defense of Marriage Act and the Proposition 8 ban of same-sex marriage in California.

Those ballot results will almost certainly be incorporated by attorneys representing groups who support same-sex marriage as evidence of a growi ng consensus in the country of support for the issue.

Contact Todd Ruger at truger@alm.com.