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OCTOBER TERM, 1976
Syllabus 429 U.^ S.
CRAIG ET AL. v. BOREN, GOVERNOR OF
OKLAHOMA, ET^ AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR^ THE WESTERN DISTRICT OF OKLAHOMA
No. 75-628. Argued^ October^ 5,^ 1976-Decided^ December^ 20,^1976
Appellant Craig, a male then between 18 and 21 years old, and appellant Whitener, a licensed vendor of 32% beer, brought this action for declaratory and injunctive relief, claiming^ that^ an^ Oklahoma^ statutory scheme prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of^21 and^ to^ females^ under^ the^ age^ of^^18 constituted^ a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws. Recognizing that Reed v. Reed, 404 U. S. 71, and later cases establish that classification by gender must^ substan- tially further important governmental objectives, a three-judge District Court held that appellees' statistical evidence regarding young males' drunk-driving arrests and traffic injuries^ demonstrated^ that^ the^ gender- based discrimination^ was^ substantially^ related^ to^ the^ achievement^ of traffic safety on Oklahoma roads. Held:
1. Since only declaratory and injunctive^ relief^ against^ enforcement^ of the gender-based differential was sought, the controversy has^ been mooted as to Craig, who^ became^21 after this^ Court had^ noted^ prob- able jurisdiction. See, e. g., DeFunis v. Odegaard,^^416 U.^ S.^ 312.^ P. 192.
- Whitener has^ standing^ to^ make^ the^ equal^ protection^ challenge. Pp. 192-197. (a) No prudential objective^ thought^ to^ be^ served^ by^ limitations^ of jus tertii standing can^ be^ furthered^ here,^ where^ the^ lower^ court^ already has entertained the constitutional^ challenge^ and^ the^ parties^ have^ sought resolution of the constitutional issue. Pp. 193-194. (b) Whitener in any event independently has established third- party standing. She suffers "injury in fact" since the challenged^ stat- utory provisions are addressed to vendors like her, who either^ must obey the statutory provisions and incur^ economic^ injury^ or^ disobey the statute and suffer sanctions.^ In^ such circumstances,^ vendors^ may resist efforts to restrict their operations^ by^ advocating^ the^ rights^ of third parties seeking access to^ their^ market.^ See,^ e.^ g.,^ Eisenstadt^ v. Baird, 405 U. S. 438.^ Pp.^ 194-197. 3. Oklahoma's gender-based differential constitutes an invidious^ dis- crimination against males 18-20 years of age in violation of the Equal Protection Clause. Appellees' statistics (the most relevant of^ which
CRAIG v. BOREN
190 Opinion of the Court
show only that .18% of females and 2% of males in the 18-20-year-old age group were arrested for driving while under the influence of liquor) do not warrant the conclusion that sex represents an accurate proxy for the regulation of drinking and driving. Pp. 199-204.
- The operation of the Twenty-first Amendment does not alter the application of (^) equal protection standards that otherwise govern this case. The Court has never recognized that application of that Amend- ment can defeat an otherwise (^) established claim under the Equal Pro- tection Clause, the principles (^) of which cannot be rendered inapplicable here by reliance upon statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. Pp. 204-210. 399 F. Supp. (^) 1304, reversed.
BRENNAN, (^) J., delivered the opinion of the Court, in which WHITE, MAR sHALL, PoWELL, and STEVENS, JJ., (^) joined, and in all but Part II-D of which BLACKAUN, J., joined. POWELL, J., post, (^) p. 210, and STEVENS, J., post, p. 211, filed concurring opinions. BLACKMUN, J., filed a statement concurring (^) in part, post, p. 214. "STEWART, J., filed an opinion concurring in the judgment, post, p. 214. BURGER, (^) C. J., post, p. 215, and REHNQUIST, J., post, p. 217, filed dissenting opinions.
Frederick P. Gilbert argued the cause and filed briefs for appellants. James H. Gray, Assistant Attorney General of Oklahoma, argued the cause for appellees. With him on the brief was Larry Derryberry, Attorney General.*
MR. JUsTIcE BRENN"N delivered (^) the opinion of the Court. The interaction (^) of two sections of an Oklahoma statute, Okla. Stat., Tit. 37, §§ 241 and 245 (1958 and Supp. 1976),'
*Ruth Bader Ginsburg and Melvin L. Wulf filed a brief for (^) the American Civil Liberties Union as amicus curiae urging (^) reversal. I Sections 241 and 245 provide in (^) pertinent part: § 241. "It shall be unlawful for any person who holds a license to sell and dispense beer... to sell, barter or give to any minor any beverage con- taining more than one-half of one per cent of alcohol measured by volume and not more than three and two-tenths (32) per cent of alcohol (^) measured by weight. § 245. "A 'minor,' for the (^) purposes of Section... 241 ... is defined as a
CRAIG v. BOREN
190 Opinion of the Court
unconstitutionality of the (^) age-sex differential. We conclude that she may. Initially, it should be noted that, despite having had the opportunity to do so, 3 appellees never raised before the District Court any objection to Whitener's reliance upon the claimed unequal treatment (^) of 18-20-year-old males as the premise of her equal protection challenge (^) to Oklahoma's 3.2% beer law. See 399 F. Supp., at 1306 n. 1. Indeed, at oral argument Oklahoma acknowledged that appellees always "presumed" (^) that the vendor, (^) subject to (^) sanctions and (^) loss of license for violation of the statute, was a proper party in interest to object to the enforcement of the sex-based regu- latory provision. Tr. of Oral Arg. 41. While such a concession certainly (^) would not be controlling upon the reach of this Court's constitutional (^) authority to exercise jurisdiction under Art. III, see, e. g., Sierra Club v. Morton, 405 U. S. (^) 727, 732 n. 3 (1972); cf. Data (^) ProcessingService v. Camp, 397 U. S. 150, 151 (1970), our decisions have settled that (^) limitations on a litigant's assertion of jus tertii are not (^) constitutionally man- dated, but rather stem from a salutary (^) "rule of self-restraint" designed (^) to minimize unwarranted intervention into contro- versies where the applicable constitutional questions are ill- defined and speculative. See, e. g., Barrows v. Jackson, 346 U. S. 249, 255, 257 (1953); see also Singleton v. Wulif, 428 U. S. 106, 123-124 (1976) (POWELL, J., dissenting). These prudential objectives, (^) thought to be enhanced by restrictions on third-party standing, cannot be furthered here, where the lower court already has entertained the relevant constitu- tional challenge and the parties (^) have sought-or at least have never resisted-an authoritative constitutional determi- nation. In such circumstances, a decision by us to forgo
3 The District Court's opinion (^) confirms that Whitener from (^) the outset has based her constitutional (^) challenge on gender-discrimination grounds, 399 F. Supp., at 1306, and "[n]o challenge is made to [her] standing and requisite interest (^) in the controversy... ." Id., at 1306 n. 1.
OCTOBER TERM, 1976
Opinion of the Court (^429) U. S.
consideration of the constitutional merits in order to await
the initiation of a new challenge to the statute by injured
third parties would be impermissibly to foster repetitive and
time-consuming litigation under the guise of caution and
prudence. Moreover, insofar as the applicable constitutional
questions have been and continue to be presented vigorously
and "cogently," Holden v. Hardy, 169 U. S. 366, 397 (1898),
the denial of jus tertii standing in deference to a direct
class suit can serve no functional purpose. Our Brother
BLACKMUN'S comment is pertinent: "[I]t may be that
a class could be assembled, whose fluid membership always
included some [males] with live claims. But if the assertion
of the right is to be 'representative' to such an extent anyway,
there seems little loss in terms of effective advocacy from
allowing its assertion by" the present jus tertii champion.
Singleton v. Wulff, supra, at 117-118.
In any event, we conclude that appellant Whitener has
established independently her claim to assert jus tertii stand-
ing. The operation of §§ 241 and 245 plainly has inflicted
"injury in fact" upon appellant sufficient to guarantee her
"concrete adverseness," Baker v. Carr, 369 U. S. 186, 204
(1962), and to satisfy the constitutionally based standing re-
quirements imposed by Art. III. The legal duties created by
the statutory sections under challenge are addressed directly
to vendors such as appellant. She is obliged either to heed
the statutory discrimination, thereby incurring a direct eco-
nomic injury through the constriction of her buyers' market,
or to disobey the statutory command and suffer, in the words
of Oklahoma's Assistant Attorney General, "sanctions and per-
haps loss of license." Tr. of Oral Arg. 41. This Court repeat-
edly has recognized that such injuries establish the threshold
requirements of a "case or controversy" mandated by Art.
III. See, e. g., Singleton v. Wulif, supra, at 113 (doctors who
receive payments for their abortion services are "classically
adverse" to government as payer); Sullivan v. Little Hunting
OCTOBER TERM, 1976
Opinion of the Court 429 U. S.
Indeed, the jus tertii question raised here is answered by our disposition of a like argument in Eisenstadt v. Baird, supra. (^) There, as here, a state statute imposed legal duties and (^) disabilities upon the claimant, who was convicted of distributing a package of contraceptive foam to a third party.' Since the statute was directed at Baird and penalized his conduct, the Court did not hesitate-again as here-to con- clude that the "case or controversy" (^) requirement of Art. III was satisfied. 405 U. S., at (^) 443. In considering Baird's constitutional objections, the Court fully recognized his stand- ing to defend (^) the privacy interests of third parties. Deemed crucial to the decision to permit jus tertii standing was the (^) recognition of "the impact of the litigation on the third- party interests." Id., at 445. Just as the defeat of Baird's suit and the "[e]nforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives," id., at 446, so too the failure of Whitener to prevail in this suit and the continued enforcement of §§ 241 and 245 will "materially impair the ability of" males 18-20 years of age to purchase 3.2% beer despite their classification by an overt gender-based criterion. Similarly, just as the Massachusetts law in Eisenstadt "prohibit[ed],
against the claimant threatens to "chill" the First Amendment rights of third parties. See, e. g., Lewis v. New Orleans, 415 U. S. 130 (1974). 5 The fact that Baird chose to disobey the legal duty imposed upon him by the Massachusetts anticontraception statute, resulting in his criminal conviction, 405 U. S., at 440, does not distinguish the standing inquiry from that pertaining to the anticipatory attack in this case. In both Eisenstadt and here, the challenged statutes compel jus tertii claimants either to cease their proscribed activities or to suffer appropriate sanctions. The existence of Art.. III "injury in fact" and the structure of the claimant's relationship to the (^) third parties are not altered by the liti- gative posture of (^) the suit. And, certainly, no suggestion will be heard that Whitener's anticipatory challenge offends the normal requirements governing such actions. See generally Steffel v. Thompson, 415 U. S. 452 (1974); Samuels v. Mackell, 401 U. 5. 66 (1971); Younger (^) v. Harris, 401 U. S. 37 (1971).
CRAIG v. BOREN
(^190) Opinion of the Court
not use, but distribution," 405 U. S., at 446, and consequently the least awkward challenger was one in Baird's position who was subject to that proscription, the law challenged here ex- plicitly regulates the sale rather than use of 3.2% beer, thus leaving a vendor as the obvious claimant. We therefore hold that Whitener has standing to raise relevant equal protection challenges to Oklahoma's gender- based law. We now consider those arguments.
II A Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. Okla. Stat., Tit. 15, § 13 (1972 and Supp. 1976). In contrast, females were held criminally responsible as adults at age 18 and males at age 16. Okla. Stat., Tit. 10, § (^1101) (a) (Supp. 1976). After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed, 404 U. S. 71 (1971), that the age distinction was unconstitutional for purposes of establish- ing criminal responsibility as adults, Lamb v. Brown, 456 F. 2d 18, the Oklahoma Legislature fixed age 18 as applicable to both males and females. Okla. Stat., Tit. 10, § 1101 (a) (Supp. 1976). In 1972, 18 also was established as the age of majority for males and females in civil matters, Okla. Stat., Tit. 15, § 13 (1972 and Supp. 1976), except that §§ 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule. Analysis may appropriately begin with the reminder (^) that Reed emphasized that statutory classifications that distin- guish between males and females are "subject to scrutiny under the Equal Protection Clause." 404 U. S., at 75. To withstand constitutional challenge, previous cases estab- lish that classifications by gender must serve important gov- ernmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the ob-
CRAIG v. BOREN
190 Opinion of the Court
misconceptions concerning the role of females (^) in the home rather than in the "marketplace (^) and world of ideas" were rejected as loose-fitting characterizations (^) incapable of sup- porting state statutory schemes that (^) were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisi- ana, 419 U. S. (^) 522, 535 n. 17 (1975). In light of the weak congruence (^) between gender and the characteristic or trait that gender purported (^) to represent, it was necessary that the legislatures choose either to realign their substan- tive laws (^) in a gender-neutral fashion, or to adopt procedures for identifying (^) those instances where the sex-centered gen- eralization actually comported with fact. See, e. g., (^) Stanley v. Illinois, supra, at 658; (^) cf. Cleveland Board of Education v. LaFleur, 414 U. S. 632, 650 (1974).
In this case, too, "Reed, we feel, is controlling. .. ," Stanton
v. Stanton, supra, at 13. We turn then to (^) the question whether, (^) under Reed, the difference between males and fe- males with respect to the purchase of 3.2% (^) beer warrants the differential in age drawn by the Oklahoma (^) statute. We conclude that it does (^) not.
B The District Court recognized that Reed v. Reed was controlling. In (^) applying the teachings of that case, the court found the requisite important governmental (^) objective in the traffic-safety goal proffered by the Oklahoma (^) Attor- ney General. It then concluded (^) that the statistics introduced by the (^) appellees established that the gender-based distinction was substantially related to achievement of that (^) goal.
C We accept for purposes of discussion the (^) District Court's identification of (^) the objective underlying §§ 241 and 245 as the enhancement of traffic safety.' Clearly, the (^) protection
(^7) That this was the (^) true purpose is not at all self-evident. (^) The pur-
OCTOBER TERM, 1976
Opinion of the Court 429 U. S.
of public health and safety represents an important function of state and local governments However, appellees' statistics in our view cannot support the conclusion that the gender- based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge. The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for "driving under the influence" and "drunkenness" substantially exceeded female arrests for that same age period.^8 Similarly, youths aged 17-21 were found to be overrepresented among those killed
pose is not apparent from the face of the statute and the Oklahoma Leg- islature does not preserve statutory history materials capable of clari- fying the objectives served by its legislative enactments. The District Court acknowledged the nonexistence of materials necessary "to reveal what the actual purpose of the legislature was," but concluded that "we feel it apparent that a major purpose (^) of the legislature was to promote the safety of the young persons affected and the public generally." 399 F. Supp., at 1311 n. 6. Similarly, the attorney for Oklahoma, while proposing traffic safety as a legitimate rationale for the 3.2% beer law, candidly acknowledged at oral argument that he is unable to assert that traffic safety is "indeed the reason" for the gender line contained in § 245. Tr. of Oral Arg. 27. For this appeal we find adequate the appellee's representation of legislative purpose, leaving for another day consideration of whether the statement of the State's Assistant Attorney General should suffice to inform this Court of the legislature's objectives, or whether the Court must determine if the litigant simply is selecting a convenient, but false, post hoc rationalization. 8 The disparities in 18-20-year-old male-female arrests were substan- tial for both categories of offenses: 427 versus 24 for driving under the influence of alcohol, and 966 versus 102 for drunkenness. Even if we assume that a legislature may rely on such arrest data in some situa- tions, these figures do not offer support for a differential age line, for the disproportionate arrests of males persisted at older ages; indeed, in the case of arrests for drunkenness, the figures for all ages indicated "even more male involvement in such arrests at later ages." 399 F. Supp., at
- See also n. 14, infra.
OCTOBER TERM, 1976
Opinion of the Court 429 U. S.
ness is to serve as a proxy for drinking and driving, a correla- tion of 2% must be^ considered^ an^ unduly^ tenuous^ "fit."^^12 Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even^ though^ the^ statutes in question certainly rested^ on^ far^ more^ predictive^ empirical relationships than this."^3 Moreover, the statistics exhibit a variety of other short- comings that seriously impugn their value to equal protec- tion analysis. Setting aside the obvious methodological problems," the surveys do not adequately justify the salient
12 Obviously, arrest statistics do not embrace all individuals who drink and drive. But for purposes of analysis, this "underinclusiveness" must be discounted somewhat by the shortcomings inherent in this statistical sample, see n. 14, infra. In^ any^ event,^ we^ decide^ this^ case^ in^ light^ of the evidence offered by Oklahoma and know of no way of extrapolating these arrest statistics to take into account the driving and drinking popu- lation at large, including those who avoided arrest. 13For example, (^) we can conjecture that in Reed, (^) Idaho's apparent premise that women lacked^ experience^ in^ formal^ business^ matters^ (par- ticularly compared to men) would^ have proved^ to be^ accurate^ in^ sub- stantially more than 2% of all cases. And^ in^ both^ Frontiero^ and^ Wiesen- feld, we expressly found appellees' empirical defense of mandatory depend- ency tests for men but not women to be unsatisfactory, even though we recognized that husbands are still far less likely to be dependent on their wives than vice versa.. See, e. g., 411 U. S., at 688-690. 34 The very social stereotypes that find (^) reflection in age-differential laws, see Stanton v. Stanton, 421 U. S., 7, 14-15 (1975), are likely substantially to distort the accuracy of these comparative statistics. Hence "reckless" young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are^ chivalrously^ escorted^ home.^ See, e. g., W. Reckless & B. Kay, The Female Offender 4, 7, 13, 16-17 (Report to Presidential Commission on Law Enforcement and Administration of Justice, 1967). Moreover, the Oklahoma surveys, gathered under a regime where^ the^ age-differential law in question^ has^ been^ in^ effect,^ are lacking in controls necessary for appraisal of the actual effectiveness of the male 3.2% beer prohibition. In^ this^ regard,^ the^ disproportionately high arrest statistics for young males-and, indeed, the growing alcohol- related arrest figures for all ages and sexes-simply may be taken to docu- ment the relative futility of controlling driving behavior by the 32% beer
CRAIG v. BOREN
190 Opinion of the Court
features of Oklahoma's gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol level, Oklahoma apparently considers the 3.2% beverage to be "nonintoxicat- ing." Okla. Stat., Tit. 37, § 163.1 (1958); see State ex rel. Springer v. Bliss, 199 Okla. 198, 185 P. 2d 220 (1947). More- over, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findigs to age-sex differentials as involved here.1 5^ Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer-albeit apparently not of the diluted 3.2% variety-reached results that hardly can be viewed as im- pressive in justifying^ either^ a^ gender or^ age^ classification.^16
statute and like legislation, although we obviously have no means of estimating how many individuals, if any, actually were prevented from drinking by these laws. 15 See, e. g., nn. 9 and 11, supra. See also n. 16, infra. 16 The random roadside survey of drivers conducted in Oklahoma City during August 1972 found that 78% of drivers under 20 were male. Turning to an evaluation of their drinking habits and factoring out non- drinkers, 84% of the males versus 77% of the females expressed a prefer- ence for beer. Further 16.5% of the men and 11A% of the women had consumed some alcoholic beverage within two hours of the interview. Finally, a blood alcohol concentration greater than .01% was discovered in 14.6% of the males compared to 11.5% of the females. "The 1973 figures, although they contain some variations, reflect essentially the same pattern." 399 F. Supp., at 1309. Plainly these statistical disparities between the sexes are not substantial. Moreover, when the 18-20 age boundaries are lifted and all drivers analyzed, the 1972 roadside survey indicates that male drinking rose slightly whereas female exposure to alcohol remained relatively constant. Again, in 1973, the survey estab- lished that "compared to all drivers interviewed,... the under-20 age group generally showed a lower involvement with alcohol in terms of having drunk within the past two hours or having a significant BAC (blood alcohol content)." Ibid. In sum, this survey provides little sup- port for a gender line among teenagers and actually runs counter to the imposition of drinking restrictions based upon age.
CRAIG v. BOREN
190 Opinion of the Court
invidious gender-based discrimination from invalidation as a denial of equal protection of the laws in violation of the Fourteenth Amendment. The history of state regulation of alcoholic beverages dates from long before adoption of the Eighteenth Amendment. In the License Cases, 5 How. 504, 579 (1847), the Court recognized a broad authority in state governments to regu- late the trade of alcoholic beverages within their borders free from implied restrictions under the Commerce Clause. Later in the century, however, Leisy v. Hardin, 135 U. S. 100 (1890), undercut the theoretical underpinnings of the License Cases. This led Congress, acting pursuant to its powers under the Commerce Clause, to reinvigorate the State's regulatory role through the passage of the Wil- son' 8 and Webb-Kenyon Acts.' 9 See, e. g., Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311 (1917) (up-
holding Webb-Kenyon Act); In re Rahrer, 140 U. S. 545
(1891) (upholding Wilson Act). With passage of the Eight- eenth Amendment, the uneasy tension between the Com- merce Clause and state police power temporarily subsided. The Twenty-first Amendment repealed the Eighteenth Amendment in 1933. The wording of § 2 of the Twenty- first Amendment 20 closely follows the Webb-Kenyon and Wil- l" The Wilson Act, enacted in 1890, reads in pertinent part: "All ... intoxicating liquors or liquids transported into any State or Territory... shall upon arrival in such State or Territory be subject to the opera- tion and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory .... ." 27 U. S. C. § 121. 10 The Webb-Kenyon Act of 1913 prohibits "[t]he shipment or trans- portation... of any... intoxicating liquor of any kind, from one State, Territory, or District... into any other State, Territory, or District... [for the purpose of being] received, possessed, sold, or in any manner used. .. in violation of any law of such State, Territory, or District... "' 27 U. S. C. § 122. 20 "The transportation or importation into any State, Territory, or
OCTOBER TERM, 1976
Opinion of the Court 429 U. S.
son Acts, expressing the framers' clear intention of con- stitutionalizing the Commerce Clause^ framework established under those statutes. This Court's decisions since have confirmed that the Amendment primarily created an excep- tion to the normal operation of the Commerce Clause. (^) See, e. g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324, 330 (1964); Carter v. Virginia, 321 U. S. 131, 139-140 (1944) (Frankfurter, J., concurring); Finch & Co. v. McKittrick, 305 U. S. 395, 398 (1939). Even here, how- ever, the Twenty-first Amendment does not pro tanto repeal the Commerce Clause, but merely requires that each provi- sion "be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, at 332; cf. Department of Revenue v. James Beam Dis- tilling Co., 377 U. S. 341 (1964); Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938). Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: "Neither the text nor the history of the Twenty-first Amendment suggests that it quali- fies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned." P. Brest, Processes of Constitutional Decision- making, Cases and Materials, 258 (1975). Any departures from this historical view have been limited and sporadic. Two States successfully relied upon the Twenty-first Amend- ment to respond to challenges of major liquor importers to state authority to regulate the importation and manufacture of alcoholic beverages on Commerce Clause and Fourteenth Amendment grounds. See Mahoney v. Joseph Triner Corp., 304 U. S. 401 (1938); State Board v. Young's Market Co.,
possession of the United States for delivery or use therein of intoicating liquors, in violation of the laws thereof, is hereby prohibited."
OCTOBER (^) TERM, 1976
Opinion of the Court (^429) U. S.
Rather, Moose Lodge No. 107 v. Irvis, 407 U. S. 163, (^) 178- 179 (1972), establishes that state liquor regulatory (^) schemes cannot work invidious discriminations that violate (^) the Equal Protection Clause. Following this approach, both (^) federal and state courts uniformly have (^) declared the unconstitutionality of gender lines that restrain the activities (^) of customers of state-regu- lated liquor establishments irrespective of the (^) operation of the Twenty-first Amendment. See, e. g., (^) White v. Fleming, (^522) F. 2d 730 (CA7 1975); Women's Liberation Union (^) of R. I. v. Israel, 512 F. (^) 2d 106 (CAl 1975); Daugherty v. Daley, 370 F. Supp. 338 (ND Ill. 1974) (^) (three-judge court); Seidenberg v. McSorleys' (^) Old Ale House, Inc., 317 F. Supp. 593 (SDNY 1970); Commonwealth Alcoholic Beverage (^) Con- trol Bd. v. Burke, 481 S. W. 2d 52 (Ky. 1972); cf. (^) Sailer Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P. 2d 529 (1971); (^) Paterson Tavern & G. 0. A. v. Hawthorne, 57 N. J. (^) 180, 270 A. 2d 628 (1970). Even (^) when state officials have posited sociologi- cal or empirical justifications for these gender-based (^) differ- entiations, the courts have struck down discriminations (^) aimed at an entire class under the guise of alcohol regulation. (^) In fact, social (^) science studies that have uncovered quantifiable differences (^) in drinking tendencies dividing along both racial and ethnic lines strongly (^) suggest the need for application of the Equal Protection Clause in preventing (^) discriminatory treatment (^) that almost certainly would be perceived as (^) in- vidious.^2 2 In sum, the principles embodied (^) in the Equal (^22) Thus, if statistics were to govern the permissibility of state alcohol
regulation without regard to the Equal Protection Clause (^) as a limiting principle, (^) it might follow that States could freely favor Jews and Italian Catholics at the expense of all (^) other Americans, since available studies regularly demonstrate that the (^) former two groups exhibit the lowest rates of problem drinking. See, (^) e. g., Haberman & Sheinberg, Implicative Drinking Reported in a Household Survey: (^) A Corroborative Note on Subgroup Differences, 28 Q. J. Studies (^) on Alcohol 538 (1967); Wechsler, Thum, Demone, & Dwinnell, Social Characteristics (^) and Blood Alcohol Level, (^) 33 Q. J. Studies on Alcohol 132, 141-142 (1972); Wechsler,
CRAIG v. BOREN
190 Opinion of the (^) Court
Protection Clause are not to be rendered inapplicable by
statistically measured but loose-fitting generalities concerning
the drinking tendencies of aggregate groups. We thus hold
that the operation of the Twenty-first Amendment does not
alter the application of equal protection standards that other-
wise govern this case.
Demone, Thum, & Kasey, Religious-Ethnic Differences In Alcohol Con- sumption, 11 J. Health & Soc. Behavior 21, 28 (1970); Schmidt & Popham, Impressions of Jewish Alcoholics, 37 J. Studies on Alcohol (^) 931 (1976). Similarly, if a State were allowed simply to depend upon demo- graphic characteristics of adolescents in identifying problem drinkers, sta- tistics might support the conclusion that only (^) black teenagers should be permitted to drink, followed by Asian-Americans and Spanish-Americans. "Whites and American Indians have the lowest proportions of abstainers and the highest proportions (^) of moderate/heavy and heavy drinkers." Summary of Final Report of a National Study of Adolescent (^) Drinking Be- havior, Attitudes and Correlates 147-148 (Center for (^) the Study of Social Behavior, Research Triangle Inst., Apr. 1975) (^) (percentage of moderate/ heavy and heavy adolescent drinkers by race: black 15.2%; Asian- American 18.3%; Spanish-American (^) 22.7%; white 25.3%; American Indian 28.1%). In the past, some States have acted upon (^) their notions of the drinking propensities (^) of entire groups in fashioning their.alcohol policies. The most typical recipient of this treatment has been (^) the American Indian; indeed, several States established criminal sanctions for the sale of alco- hol to an Indian or "half or quarter breed Indian." See, e. g., Fla. Stat. Ann. § 569.07 (1962 and 1976 Supp.) (repealed in 1972); Iowa Code Ann. § 732.5 (1950 and 1976 Supp.) (repealed in 1967); Minn. Stat. Ann. § 340.82 (1957) (repealed in 1969); Neb. Rev. Stat. 53-181 (1944) (re- pealed in 1955); Utah Code Ann. § 76-34-1 (1953 and 1975 Supp.) (re- pealed in 1955). Other statutes and constitutional provisions proscribed the introduction of alcoholic beverages onto Indian reservations. See, e. g., Act of June 10, 1910, § 2, 36 Stat. 558; Ariz. Const., Art. XX, § 3; N. M. Const., Art. XXI, § 8; Okla. Const., Art. (^) 1, § 7. While Indian- oriented provisions were the most common, state alcohol beverage pro- hibitions also have been directed at other groups, notably German, Italian, and Catholic immigrants. See, e. g., J. Higham, Strangers (^) in the Land 25, 267-268, 295 (1975). The repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation.
