In the Nation, Isabel Macdonald has an excellent long read on the history of U.S. drug testing, beginning with a government program to test returning Vietnam War veterans and the drug-testing provisions in President Ronald Reagan’s Drug Free Workplace Act as part of the misdirected War on Drugs. Even then, the medical community dismissed the Act’s provisions requiring all federal grantees to test employees as “chemical McCarthyism,” as well as unscientific and discriminatory, since it was more likely to capture days-old marijuana use than frequent consumption of cocaine or alcohol. But the movement nonetheless grew from an anti-drug campaign into an industry with its own trade association, after several moneyed interests like Hoffman-La Roche, the maker of Valium and sleeping pills, got into the business:

The company established one of the first major drug-testing labs in America and won an early urine-testing contract with the Pentagon, leading to $300 million in annual sales by 1987. The following year, Hoffmann-La Roche stepped up its sales efforts with the launch of a major PR and lobbying campaign to “mobilize corporate America to confront the illicit drug problem in their workplaces.” The drug manufacturer called its new campaign “Corporate Initiatives for a Drug-Free Workplace.”

Before long, with the help of a New Jersey–based lawyer named David Evans, Hoffmann-La Roche was organizing workshops around the country to convince employers to set up drug-testing programs. In an interview with The Nation, Evans likened his role to that of “a doctor coming in to talk about how to set up a medical device.” During that first campaign, 1,000 employers signed up.[…]

The drug-testing industry took aim at lawmakers as much as employers. Hoffmann-La Roche, for instance, worked “with federal and state government officials,” according to a press release issued by the PR company hired to market the campaign. Lerner told the press that the drug company also envisioned a “grassroots strategy” to prevent states from passing laws to decriminalize marijuana.

By 2006, 84 percent of American employers were reporting that they drug-tested their workers. Today, drug testing is a multi-billion-dollar-a-year industry. DATIA [Drug & Alcohol Testing Industry Association] represents more than 1,200 companies and employs a DC-based lobbying firm, Washington Policy Associates. Hoffmann-La Roche’s former consultant, David Evans, now runs his own lobbying firm and has ghostwritten several state laws to expand drug testing. Most significant, in the 1990s Evans crafted the Workplace Drug Testing Act for the American Legislative Exchange Council (ALEC), of which Hoffmann-La Roche was a paying member. Laying out protocols for workplace drug testing, the bill—which has been enacted into law in several states—upheld the rights of employers to fire employees who do not comply with their companies’ drug-free workplace program.

Over the past decade, lobbyists like Evans have focused on what a DATIA newsletter recently dubbed “the next frontier”—schoolchildren. In 2002, a representative from the influential drug-testing management firm Besinger, DuPont & Associates heralded schools as “potentially a much bigger market than the workplace.”

Because this drug testing tends to capture marijuana more than other drugs, proponents of the movement have increasingly demonized marijuana use most of all. Robert Dupont, who served as drug policy director under Presidents Richard Nixon and Gerald Ford, had advocated decriminalizing marijuana and its use a “minor problem” before he became a “drug-testing management” consultant. Then in 1978, he declared marijuana “in many ways” the “worst drug of all the illegal drugs,” later explaining in a PBS special that, “I realized that these public policies were symbolic—all that really mattered was you were for [the decriminalization of marijuana] or you were against it…. I think about it as a litmus test.”

Now, with fewer and fewer employers implementing drug tests because they have shown “no demonstrable return on investment,” the industry has turned to another lucrative market: those receiving public assistance and unemployment benefits. Several recently passed state laws that require public benefits applicants to take drug tests have been struck down by courts, but that hasn’t stopped other states from moving forward with random drug-testing provisions. In South Carolina in 2012, with unemployment still above 9 percent, state legislators pushed three different bills to drug-test the unemployed. And several other states have done the same in the wake of a federal provision that authorizes the tests. Of course, these laws propose testing for drugs consumed illegally without a prescription. So if those consuming marijuana for stress or trouble sleeping happen to turn instead to prescription use of another federally legal drug, such as Valium or sleeping pills, Hoffman-La Roche just happens to have profited twice over from the process.

Systematic and widespread monitoring of Muslims’ everyday life by undercover informants, brought to light by an Associated Press investigative series last year, has had a severe chilling effect on speech, religious activity and community life, according to a new report by several civil rights organizations. Muslims fear speaking out even about the New York Police Department surveillance itself, and even youths described the fear of being arrested as “very real,” deterring them from activity that ranges from community involvement and speaking in class, to posting expressive messages on Facebook. “[W]hen your speech is limited, you can’t really do much: you can’t write on the internet, you can’t talk on the phone because they’re tapped, you can’t speak in public,” said one 22-year-old Sunday School teacher.

In interviews with 57 students, business owners, community leaders and educators, many recount having been asked to spy on their peers. One student recalled having been called into the principal’s office at age 16 and asked by the NYPD about her online activity. Several individuals described being questioned as suspects, and then later offered bribes to serve as informants when police realized they were not suspicious – told in moments of financial weakness that the police could “give them their freedom” by paying them for spying or providing them with a place to live. “These incidents – not infrequent in certain communities – have led many to realize that others, possibly their own peers, may not be as able to resist the pressures of working as informants,” the report said. This has bred mistrust both within the Muslim community and of law enforcement officers, prompting individuals and even businesses to accuse one another of being informants.

One of the most widespread and alarming elements of this NYPD surveillance was the recruitment of young people to infiltrate college groups. AP reports revealed that informants even accompanied students on a whitewater rafting trip, leading to fear that informants could be anyone and infiltrate anywhere. The report explains the impact on college campuses:

For college students, typically aged between 17 and 22, the prospect of dealing with surveillance by a police department, infiltration of events and extracurricular activities by informants, and the potentially devastating academic, professional, and personal repercussions can be overwhelming. … We found that the NYPD’s surveillance of students chilled First Amendment activity in what is perhaps the single most important formative and expressive space for any American youth: the college campus. […]

[W]ith a general understanding that dealing with “politics” is controversial, Muslim students find themselves steering away from those majors, classes, or extracurricular activities. Two students, both active members of their MSAs, reported switching their majors from political science to more conventional majors after becoming concerned about law enforcement scrutiny of “political” young Muslim males. […]

The isolationism that comes with being a member of a “spied on” community means that Muslim students are getting a fundamentally different, and less rewarding college experience compared to their non-Muslim peers.

As the report explains, these impacts suggest both First Amendment (free speech and religious suppression) and Fourteenth Amendment (discriminatory practices) implications, in a program that that may have broken the law and yielded no leads or cases.

Kody Brown and his four wives, the stars of TLC’s reality TV show Sister Wives have sued the state of Utah and the county they fled from in an attempt to overturn the state’s ban on polygamy. For tens of thousands of Mormon fundamentalists practicing polygamy the case could eliminate the specter of criminal penalties. In Utah, bigamy is a third-degree felony punishable by up to five years in prison.

Utah has publicly announced that the state will not prosecute consenting adult polygamy unless there are other crimes involved, but argues that the law against polygamy is constitutional.

“It is not protected under religious freedom because states have the right to regulate marriage,” said Paul Murphy, spokesman for Utah Attorney General Mark Shurtleff (R).

Utah County Attorney Jeff Buhman (R) in May announced he closed his criminal investigation into the Browns and simultaneously adopted the same state policy. The county then moved to have the lawsuit dismissed, claiming the Browns no longer have standing since they aren’t subject to prosecution.

But the judge in the Browns case appeared reluctant to drop the case, worrying that the state was trying to avoid the constitutional issue.

U.S. District Judge Clark Waddoups said it appeared as if the state policy and the ensuing declaration by Utah County was “simply a ruse to avoid having the issue reviewed.”

“What’s the policy reason behind this … that would give assurances that similar prosecutions will not be pursued in the future?” Waddoups asked. “What about the next couple?”

The lawsuit by the Browns does not challenge Utah’s authority to refuse to grant or recognize multiple marriage licenses, only the part of the law that makes it illegal to even purport to be married to multiple partners. The Browns argue that private intimate relationships between consenting adults are constitutionally protected, and they may have a point.

In Lawrence v. Texas the Supreme Court struck down Texas’s sodomy ban, reasoning that intimate sexual relationships are protected by the liberty interest guaranteed by the 14th Amendment. Justice Anthony Kennedy, writing for the majority, ruled that “the State cannot demean [Lawrence and Garner's] existence or control their destiny by making their private sexual conduct a crime.” Kennedy continued “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Kennedy also rejected the idea that a history of moral condemnation of homosexual conduct could overcome the constitutional protection, ruling that the majority can not use the state to impose its moral views on sexuality on society as a whole through the operation of criminal law.

As long as polygamous couples aren’t asking for legal recognition of multiple marriage licenses, the same reasoning applied in Lawrence appears to extend to consensual adult polygamous relationships. If same sex couples’ freedom to define personal relationships in the privacy of their homes is constitutionally protected, there is no reason that polygamous couples who also wish to privately define their relationships to each other should not be. And if society’s views on the immorality of homosexual conduct cannot support a ban on sodomy, there is no reason for society’s views on the immorality of polygamy to support a ban on purporting to be married to more than one person.

–Alex Brown