Craig v. Boren – Oral Argument – October 05, 1976

Media for Craig v. Boren

Audio Transcription for Opinion Announcement – December 20, 1976 in Craig v. Boren

del

Warren E. Burger:

We will hear arguments next in 75-628, Craig v. Boren.

Mr. Gilbert, you may proceed whenever you are ready.

Frederick P. Gilbert:

Mr. Chief Justice and may it please the Court.

This Appeal directly challenges the constitutionality of the Oklahoma Beer Law which says that females may buy beer at 18, 3.2% beer at 18, but males must wait until they are 21 years of age.

This is an age-sex discrimination for persons 18, 19, and 20 years of age.

The law is broad and all encompassing in its suite.

It says that all females even those that are the most drunk, most alcoholic, most immature, and most irresponsible, may purchase 3.2% beer at age 18 at absolutely unlimited point.

The law does not say it in quite those words, does it?

Frederick P. Gilbert:

No Your Honor.

The law does not say it quite the words that all males 18 to 21, even though they are the most mature, most sober, more self-restrained cannot purchase a drop of it, at least directly until they are 21.

But that is what the law does.

And I gather there is no question in the case that drinking 3.2% beer may make one intoxicated.

Frederick P. Gilbert:

I think there is a question Your Honor.

The legislatures concluded that beverages in concentrations of 3.2% alcohol or less is non-intoxicating.

In fact, not only the legislature or popular referendum that said that and the State?s Supreme Court has upheld both of them.

Well then, what is the relevance of the suggestion that women can get drunk in 3.2% beer?

Frederick P. Gilbert:

I believe the relevance comes from the State?s assertion of what the purpose for the statute it is.

I think the State asserts that this could contribute to the overall drunkenness problem among young adults.

Even though one, can?t get drunk?

Frederick P. Gilbert:

Well, Your Honor I am perhaps exaggerating the point there.

It would be difficult; I would hesitate to say it is absolutely impossible.

Warren E. Burger:

When do we could take judicial notice of some of these facts and you will not have to exaggerate the counsel?

Frederick P. Gilbert:

Very well Your Honor.

I guess some of us do remember 3.2% there.

Frederick P. Gilbert:

Yes Your Honor.

Alright, now the real legislative purpose for this discrimination, we do not know.

It has been lost in the mists of antiquity.

The beer law that we challenge today was originally enacted in 1890 by the First Territorial Legislature as part of a generalized civil majority statute of 18 for females and 21 for males for virtually all purposes of almost exactly the same type of statute that was held unconstitutional by this Court last year in Stanton v. Stanton.

William H. Rehnquist:

Because Stanton v. Stanton did not involve intoxicating beverages or the Twenty-First Amendment, did it?

Frederick P. Gilbert:

No Your Honor.

Frederick P. Gilbert:

It was a generalized statute.

The particular issue was the question of child support I believe.

William H. Rehnquist:

And when you say ?we?, you are referring to your client who is the tavern keeper?

Frederick P. Gilbert:

Yes Your Honor and the —

William H. Rehnquist:

There are no potential purchases that are left in the case, is there?

Frederick P. Gilbert:

Well, technically he turned 21 about two weeks ago Your Honor.

William H. Rehnquist:

Well, isn?t that he technically turned 21 or I take it I mean he had a birthday?

Frederick P. Gilbert:

Yes Your Honor.

William H. Rehnquist:

I presume he no longer is barred by Oklahoma Law from buying 3.2% beer?

Frederick P. Gilbert:

That is correct Your Honor.

However, I believe, under some of your abortion cases I believe that the mootness would not be a bar to his consideration or his assertion of the same interest which has been asserting throughout the litigation.

How do you say that this is not a class action, is it?

Frederick P. Gilbert:

No Your Honor.

Then why is it not a class action?

Frederick P. Gilbert:

The reason it was not is because the class would be composed of all males 18 to 21 in Oklahoma, a constantly changing class and the cause —

And isn?t that true the class in the abortion cases?

It was only a nine month run there.

Frederick P. Gilbert:

Yes Your Honor.

But the reason was that because it is a limited period of time — the normal flow of litigation is such that if you are going to be really strict about the mootness point, you can never raise the question and the protracted litigation of this Court is further example of exactly the same thing.

Well you have three years here.

Frederick P. Gilbert:

Yes Your Honor, and this case is now into its fourth year.

How do you avoid the precedent of the DeFunis?

Frederick P. Gilbert:

Your Honor, DeFunis was more or less individualized.

The degree to which that person was claiming reversed discrimination with some extent depends on his score on the LSAT, the favorite class score in the LSAT, and all various numbers things, but in this case, every single male, 18 to 21 would have identical standard, because there is no differentiation under the standard between mature young man and immature young man.

William H. Rehnquist:

Well, doesn?t our decision in Sosna say in that case you bring your class action and you have this constantly changing spectrum of class members?

And if the one that is the name plaintiff no longer meets the standards, someone can succeed in the class remain.

But it does not say that if you do not bring a class action, you can just avoid normal mootness doctrine.

Frederick P. Gilbert:

Your Honor, I would invite attention to the fact that the statute actually runs against the vendor.

She is the one who is subject to penal sanctions and administrative sanctions and she is still very definitely in the case.

William H. Rehnquist:

Well that is quite a different point though.

William H. Rehnquist:

If you are arguing behalf of the vendor then you have a question of standing that if that does not support your argument that the potential purchaser is still in the case.

Frederick P. Gilbert:

Well, potential purchaser is in fact 21 but I believe under the one line of authority, the abortion cases that there is no real problem.

Thurgood Marshall:

He is entitled to an injunction saying that you have got to serve me beer because I am below 21.

How in the world he’s going to get that, he is over 21.

Frederick P. Gilbert:

Well, I see — at least there we could —

Thurgood Marshall:

You need that for damages.

Frederick P. Gilbert:

No Your Honor, we cannot in the 1983 action.

Thurgood Marshall:

That is right.

Frederick P. Gilbert:

Alright, so we are asking for declaratory relief, we can still ask for that and —

Thurgood Marshall:

Before you are 21, you could have had a drink.

Frederick P. Gilbert:

Your Honor, the vendor is still had —

Thurgood Marshall:

The only way he can get the liquor is to move his age back and drink.

Frederick P. Gilbert:

Your Honor it is not really so much the vendee who needs the injunction, it is the vendor who is trying to sell because the vendee, the young man, he can drive up to the store and have his girlfriend run in and gets the beer.

That is legal.

What is needed is really the injunction for the vendor because she is the one who is in danger of losing her liquor license for selling the stuff.

Thurgood Marshall:

Well, don?t we have to rule that the young man is no longer in this lawsuit?

Frederick P. Gilbert:

In a technical sense like women who had actually —

Thurgood Marshall:

Well, I want technical or what.

Frederick P. Gilbert:

Yes Your Honor.

That is technical.

Thurgood Marshall:

That is all I want.

Counsel, if you prevail here, what is the result of the Oklahoma Law?

Does it mean that all people under 21 or all people under 18th are forbidden?

Frederick P. Gilbert:

Well, it would mean — the portion of the statute which is challenged is not the entire discrimination.

It is that portion of the statute which purports to exclude males from the class of persons 18 to 21 from purchasing alcohol.

That is the way the complaint was drafted and that is the basis on which the State is seemed to defend the action throughout this four years.

Are you positive about this?

Frederick P. Gilbert:

Yes Your Honor.

You might win a (Inaudible) victory.

Frederick P. Gilbert:

Well, the only thing before the Court is the unconstitutionality of the exclusion of the males.

Will you explain a little bit for me how the vendor here has standing?

Frederick P. Gilbert:

Yes Your Honor.

It would be like the doctors to some extent in the abortion cases or the vendor of contraceptive articles in the Eisenstadt v. Baird case.

In fact, I believe in your recent Singleton v. Wulff case last year, I believe went into this standing question quite to some extent.

Yes, but in the Singleton though I think we relied somewhat on the fact that the patient would be reluctant to bring the lawsuit.

Here, your vendees were not reluctant at all.

Your single vendee was not reluctant at all.

And hence, I wonder about the soundness of you are equating the relationship between the bar and its customer, with that, between the doctor and his patient.

Frederick P. Gilbert:

I do not think that desire of privacy (Inaudible). We still have the legal problem.

If the vendor sells to the male 18 to 21 she loses her license and she is subjected to possible criminal action.

I think that standing enough right there certainly under the Eisenstadt v. Baird, the contraceptive cases.

That is where the penal sanction actually runs.

And of anything, I think Mrs. Whitener has far more standing even if we did have a class section of young men, Mrs. Whitener would really be the party on this case.

Of course, you have to say the same thing about persons 8 to 17.

Frederick P. Gilbert:

No Your Honor.

There is no sex discrimination of the vendor could vicariously assert in that case.

She is injured just as much as —

Frederick P. Gilbert:

Alright.

Your Honor if there were some theory of law supporting an argument that young men or persons down to 17 should buy beer, the vendor would have standing to assert that in addition to the 17 year olds.

William H. Rehnquist:

But analytically speaking, can we really give your vendor client any relief?

If we decide that this is an unconstitutional discrimination, don?t we have to leave it up to the State of Oklahoma to decide whether all minors up to 21 will be barred or all minors up to 18 will be barred? So that in effect to your client?s position may be worsened if you win the laws.

Frederick P. Gilbert:

No Your Honor that I do not — let me say the first thing, if the legislature wants to raise the age, they can do that in a prospective manner.

Now, in judicial action, first of all, the way the complaint disrupted and what is before the Court is only the exclusion of the males.

William H. Rehnquist:

Well, but you say, ?What is before of the Court??

What is before the Court is your complaint that it is an unconstitutional discrimination to treat, say women can buy at one age and men at another?

Now, I do not know that the parties are free under our decided cases to say you may only decide this case in a particular way.

I mean, I think that depends on the trusted argument.

Frederick P. Gilbert:

Alright, let me explain this.

First of all, as I have mentioned, the way the complaint has been drafted.

Second, the State has not urged this alternative argument as a basis for supporting the denial of beer to young men 18 to 21 and I happen to know that that was a deliberate decisions, so it has been raised by either side.

Frederick P. Gilbert:

Third point, this is due process question which was not touched on in Stanton v. Stanton.

Let me point it out, if the legislature wants to raise the age or take away a vested statutory right, the legislature does not have to give notice.

But if the Court wants to take away a vested statutory right, such as the vested statutory right of females 18 to 21 to purchase beer, it cannot be done in a judicial action without giving notice and opportunity to be heard, which means to take away the young women?s right by judicial actions, I suppose the legislative action, you have to turn this case into kind of a third party cross-claim class action and serve notice on all females 18 to 21 to give them an opportunity to argue to the Court, why that should not be done?

William H. Rehnquist:

Perhaps you should have joined them as indispensable party.

Frederick P. Gilbert:

Well, Your Honor if we would have the money to have a class action, we would have spent it on getting a class action for the young males.

But that is why the State incidentally did not make the third party with just the expense of impleading an entire class.

Now that is why to resolve an inequality by taking away the benefit to the favorite class, I submit can not be done on the basis of judicial action without impleading the favorite class to come in and be heard for whatever their arguments may be worth.

The legislature can do it but the Court cannot.

Furthermore, in Stanton, I believe there was a question of remanding to the State Courts.

In this case, we have a direct appeal from a Three-Judge Federal Court.

There is no State Court to remand to.

As I believe, there is some general rule also that to some extent, the Court may try and second guess a legislature since 18 seems to be almost the universal age for adulthood now.

I think 18 would be the age.

I do not think there is any question about it.

The legislature has gone through and said 18 for just about everything in Oklahoma except despair discrimination.

Warren E. Burger:

Are you going to mention Mr. Justice Douglas opinion in Kahn v. Shevin sometime in your argument?

Frederick P. Gilbert:

Your honor, Kahn was a question I believe of compensatory discrimination for the effects of past discrimination for the unfavored sex.

I think it is clearly inapplicable in this case.

I mean, if the compensation is access to 3.2% beer, the only way that could be compensation for anything would be to say is giving young women an opportunity to drown their sorrows in 3.2% beer for the effects of past discrimination which I feel —

Warren E. Burger:

Perhaps you state as the position of Kahn v. Shevin and rather as too narrow a way.

Didn?t the Court rule that there are differences which can be recognized by the legislative bodies and isn?t that what the legislature of state here that —

Frederick P. Gilbert:

Your Honor, that is correct.

Warren E. Burger:

— the piece of that record and on the vulnerability record may also against females?

Frederick P. Gilbert:

Your Honor the facts which the legislature took judicial notice or reacted to in Kahn was the facts that the past discrimination.

It was not really based upon any innate difference between male and female, and there is no base as in this record to say that the legislature even remotely thought of compensating for past discrimination.

Now, the difference between male and female in Kahn was that the female was the victim of discrimination but that would not a point in —

Warren E. Burger:

There is a passing reference to that, but that is not the heart of that decision.

Frederick P. Gilbert:

Well, it is —

Warren E. Burger:

In terms on the unemployability in large part that happened to come from some past discrimination that the relative difference in employability of women and men at the age of the people involved there.

Well, you go on with your argument.

Frederick P. Gilbert:

Now, as I was saying, the statute derived in its origin from the 1890 legislature and there are many theories as to why it happened.

I think the theory that there was maybe a legislative intent that little boys were little devils (ph) and little girls or little angels it is as good as anything I have heard, state has never come up with what the real reason was.

In 1890 I guess, the prohibition against sell to minors and there was another statute that defined some purposes of civil part —

Frederick P. Gilbert:

Yes Your Honor —

— tells that were minors onto what?

Frederick P. Gilbert:

Minors were females until 18 and males to 21.

But that is how you got the distinction 18 to 21 in the 1890 or something.

Frederick P. Gilbert:

Yes Your Honor.

And that was retained in Oklahoma until 1972.

Now, in 1972, there were two judicial decisions that told the legislature, this could not survive.

One was this Court?s decision in Reed v. Reed and the other was a Tenth Circuit decision which held Oklahoma?s criminal age-sex discrimination unconstitutional.

So in 1972, the legislature set 18 as the age for criminal and civil majority for both females and males but retained it for this one purpose.

And the legislature to tell us why they would think —

Frederick P. Gilbert:

No Your Honor, nor has the Attorney General ever told us why there is no real —

Didn?t you have a lot of religious groups?

Frederick P. Gilbert:

Yes Your Honor.

I can make a statement of counsel that I think it was strictly sectarian impression.

Were they not in fact questions of that kind in the Oklahoma?

Frederick P. Gilbert:

Yes Your Honor.

There is no question about it.

And that is why it was distinguished.

Frederick P. Gilbert:

Yes Your Honor.

It was to save the souls of young men 18 to 21 from exposure to cool beer, and girls.

That was what was quoted in the Legislative Committee.

Alright now —

Counsel, may I ask this question before you go on?

Assume for the moment that the legislature and appropriate committee had conducted hearings and come up with findings that legislation of this character was required in the public interest about safety.

Would that affect your position in this case?

Frederick P. Gilbert:

No Your Honor, but that does get us into the next question, the statistics which the State has elected to rely upon.

If it was perfectly clear, that the legislative purpose was safety on the highways primarily, would that change your position?

Frederick P. Gilbert:

Well, it is a kind of a moot question because we know what the real reason was.

Well, I am not suggesting what the real reason was.

I have no idea what it was.

I was asking you a hypothetical question.

Frederick P. Gilbert:

Alright, the hypothetical answer would be if they are concerned about safety from irresponsible young adults, they are going to have to say all irresponsible young adults regardless of race, breed, color, sex, and whatever.

They cannot single out one particular group of teenagers just on the accident of their birth and say, we are going to say that these people are just congenitally dangerous and deny them the right to buy non-intoxicating beer.

William H. Rehnquist:

Were they — just a minute — even though the legislature had statistics that may have shown that when men and women went out together, men were more often drivers than women were.

Frederick P. Gilbert:

Alright, first of all, there were not any statistics.

William H. Rehnquist:

Well, what if there were statistics?

Frederick P. Gilbert:

Alright, Your Honor, the mere fact that there are more men on the road does not mean that the individual male is any more dangerous.

Now may be since there are more men on the road, there may be more men just by the flaws, natural statistics getting involved in collisions that in fact would be almost inevitable.

But that does not mean that the individual male is any more dangerous just because he is a member of a class or has been —

William H. Rehnquist:

No, but that means that the law of that Justice Powell was talking about would be arguably in improvement and safety.

Frederick P. Gilbert:

Your Honor, I would say anything could be — you could pass a law saying, ?No Negro will drive while intoxicated.?

Now this relates to the public thing that the thing is you cannot discriminate even for something like public safety on the basis of certain criteria.

William H. Rehnquist:

Well, did the Court ever hold that discrimination of this sort is of the same class as discrimination the basis of race?

Frederick P. Gilbert:

Your Honor, this Court has come very, very —

William H. Rehnquist:

Well, I asked you a question, has it ever held?

Frederick P. Gilbert:

No, it is never held but it is just totally to be treated the same as race Your Honor.

William H. Rehnquist:

Is it your position that Cronin v. Adams has to be overruled if you were to prevail here?

Frederick P. Gilbert:

Yes Your Honor.

William H. Rehnquist:

And are you asking that it would be overruled?

Frederick P. Gilbert:

Yes Your Honor, or it could be tactfully ignored.

There is another candidate in that same category.

I would submit for Your Honors, the consideration is Goesaert v. Cleary.

I feel that Goesaert is to sex as Plessy v. Ferguson was to race and should be treated accordingly.

In fact, as I read the Goesaert decision, it was considerably worst than Plessy in the race because Plessy, while saying that the un-favored race would have to have its education and facilities and so forth separately, Plessy never went so far to say the un-favored sex could be denied these things all together.

But Goesaert went so far to say the un-favored sex could be denied these things all together.

So that is one way I view Goesaert is being considerably worst than Plessy v. Ferguson.

Thurgood Marshall:

Plessy v. Ferguson was directly overruled.

Frederick P. Gilbert:

It was not directly overruled, as Your Honor Knows.

It was quietly put to rest.

As an example of the mentality of the age which gave it birth.

I would actually ask no more than for Cronin and for Goesaert.

First Harlan and Mr. Justice Holmes was participated in Cronin v. Adams case.

Frederick P. Gilbert:

Yes Your Honor.

Well, the founding fathers we might say really did not do away with slavery either but we do not look it that way.

Well, as I gather, Mr. Justice Bradley wrote —

Frederick P. Gilbert:

I cannot remember who wrote — Goesaert Your Honor.

Justice Frankfurter.

Frederick P. Gilbert:

Mr. Bradley or Justice Frankfurter?

Mr. Frankfurter.

May I ask that if there are any state laws still testing that to prohibit are limit to the sale of intoxicants to Indians.

Frederick P. Gilbert:

No Your Honor.

To my knowledge, there are no such laws anymore.

I think they derived from the time when certain Indians under the wording of the Fourteenth Amendment were not US citizens of the time, the so-called wild Indians.

To my knowledge, there are no such laws that stand at the present time.

Thurgood Marshall:

(Inaudible)

Frederick P. Gilbert:

Your Honor?

Thurgood Marshall:

They have County Laws in Oklahoma, with complete prohibitions don?t they?

Frederick P. Gilbert:

I do not believe it is a complete provision for intoxicants.

According to the state constitution —

Thurgood Marshall:

But Choctaw County recently was.

Frederick P. Gilbert:

Well, I am unfamiliar with that Your Honor.

Now, there are certain restrictions to restricted Indians that they have to do with conveyance of land and so forth.

I am not familiar with any —

Thurgood Marshall:

Choctaw County restricted liquor to anybody.

Frederick P. Gilbert:

But it is not that way now.

That was back in territorial days.

Thurgood Marshall:

Yes, 1940.

Frederick P. Gilbert:

All right, Your Honor we have some statistics in this case and this is what the court claims separate this case from everything else.

I have examined the statistics in detail in my proposition too.

I would point out one very salient thing and I think that sets the tone for all the other defects.

The statistics are arrest statistics.

They are not conviction statistics.

All the statistics show is that young men are suspected by the police more often or are accused by the police more often for alcohol related offenses than young women.

That is it.

And the statistics go downhill right from there.

I do not have time for detailed discussion of them but we do have this.

Now, I have another thought on these statistics.

When you look at the non-arrest rates, the sobriety rates, it is something like 98% of the males and 99% of the females, plus or minus 1% or 2% differential.

But counsel, for that argument do you not necessarily assume that everyone who was never been arrested has never been drunk?

Frederick P. Gilbert:

Well, I think the law presumes that, Your Honor.

There is a presumption of innocence and anyway, if it is the state statute and they are trying to defend a suspect type for scrutinize classification, I think the burden of proof is on them to come in for something more than we suspect that young males are guilty more often that girls.

Well, is it your position that a legislature may never rely on statistical evidence based on the numbers of arrests?

Frederick P. Gilbert:

Not for proving that some group is inherently irresponsible or criminal or deleterious and something.

What percentage was the total 18 to 21 male population as represented by the rest of the statistics?

Frederick P. Gilbert:

I believe 2% Your Honor.

Well, are you arguing that at the very least it is over inclusive?

98% of them be denied 3.2 beer because 2% might —

Frederick P. Gilbert:

Yes Your Honor, I am saying that is irrational in a sense of it.

Over inclusive.

Frederick P. Gilbert:

Right, yes Your Honor.

The point I am trying to make on these statistics.

All we have got and what I called the sobriety, I take the liberty of calling the sobriety ratio, is if it is only a 1% or 2% difference that is the way you juggle the statistics depending on which acts you have got deprived.

I leave the Court with a thought before I sit down for rebuttal.

That if that is all it takes to get around the Equal Protection Clause.

Let us forget equal protection.

There will always be a couple of percentage difference between any two groups you separate.

Black versus White, male versus female, Catholic versus Protestant, whichever group the legislature is out to get if all they have to do is relying on statistics like what happened below, then I think, it will be the beginning of the end of equal protection.

Frederick P. Gilbert:

Furthermore, just to run into my rebuttal time just a moment.

A discrimination based on sex is like race because it is an accident of birth which cannot be changed and for at least 99% of human activity.

It has absolutely no relationship to one?s character, ability, confidence, sobriety, or anything else.

Now, if race is going to be treated differently from sex, it can only be because in sex, there are some organic differences which for limited purposes might be relevant, and we have no analogy between the races.

But for a non-organic discriminations like this I think it is indistinguishable for race and I ask this Court, although it is not necessary to this case because the statistics really would not pass even rational relationship muster, to maybe clear the air say that sex discrimination is not based on organic differences and can?t be treated the same as racial differences.

Thank you.

Warren E. Burger:

Mr. Gray.

James H. Gray:

Mr. Chief Justice and may it please the Court.

I am James Gray and I am here representing the State of Oklahoma.

I feel that the State can summarize this position rather briefly.

The Trial Court was presented with a attack on a State Statute which as counsel for the appellants has indicated limits the purchase of 3.2 beer by weight to boys until they are 21 and girls until they are 18.

Counsel for the appellants presumes to know the exact reasons for this legislation, I will make no assertion.

The citation and authority that I recall was a newspaper article in his brief.

But evidence was put on by the State, statistical in nature which we believe shows a differences in this limited age group of 18 and 20-year-olds involving primarily traffic, involving I think in terms of the State interest a desire to reduce and to —

Was it running legislative hearing?

James H. Gray:

Your Honor, I am not able to say.

Oklahoma does not key committee records legislative history as does Congress and I do not know.

Well then, is it your submission that we simply have no evidence, whatever?

Why the legislature of Oklahoma retained this distinction?

In this law, when it abolished it for a lot of purposes.

James H. Gray:

We have nothing in the form of legislative documentation of committee reports etcetera, etcetera.

The State is offered what it believes to be a very reasonable basis for the law and for which the legislature undoubtedly passed it but we cannot, now we are not —

For which the legislature undoubtedly passed it.

Where do you get the basis for that?

James H. Gray:

That is for the judgment, Your Honor of our office in ? well that is on our history.

But that is really conjectures, isn?t it?

James H. Gray:

Yes it is.

Yes.

What about — I understand that it was considerable pressure by sectarian groups of that time upon the legislature to retain this distinction.

Is that so or not?

James H. Gray:

I do not know.

Mr. Gilbert says it so.

I am unable to refute his statement but I have no assurance of my own if this was the case.

I think Oklahoma was traditional in its treatment of the age of majority since it is stated within 1907 being 18 for girls and 21 for boys.

It is significant I think —

Am I correct that that was certainly true indeed that was since 1890s, isn?t it?

James H. Gray:

Yes.

And it was a general statute which for civil and criminal purposes made this distinction.

James H. Gray:

Yes.

But that was all erased, wasn?t it, in 1971 or ?72 with the exception of the statute?

James H. Gray:

Yes.

In 1972, the legislature amended this statute which defined minors for most of all purposes and changed it to 18 for boys and girls.

But retained it for this statute?

James H. Gray:

But retained it for this statute by enacting a new statute.

Yes.

James H. Gray:

Defining minors for purposes of selling 3.2 beer.

This is why I think that is there intent in ?72 which is critical here and not necessarily the intent they may have had years ago.

The purpose that the Trial Court found is one of which we have asserted which we think, though we cannot document it with committee reports or this sort of material which would be the best of course, is to reduce the traffic, reduce death, the injury, and property damages.

The Court applied —

Really what you arguing is that might have been a very legitimate reason.

James H. Gray:

Yes.

But you cannot say that that was indeed the reason they retained.

James H. Gray:

No, I cannot, Your Honor.

Thurgood Marshall:

(Inaudible)

James H. Gray:

No Your Honor.

I cannot think of better ones for purposes of sale of beer other than traffic for you distinguished between the sexes.

I could think of reasons that was —

Thurgood Marshall:

Are there some people in Oklahoma who do not drive?

James H. Gray:

Certainly.

Thurgood Marshall:

Who do drink?

James H. Gray:

Yes.

Thurgood Marshall:

What do you do with that?

James H. Gray:

I do not think the legislature was concerned with that aspect evident in this legislation because the same statute also eliminates from consideration a parent who may wish to give his child beer.

This is not prohibited specifically by the statute.

And indeed —

Thurgood Marshall:

Do you think that helps?

James H. Gray:

Well, I think it only eliminates the non-driving members of the class as a reason for the legislation.

Thurgood Marshall:

Well, are there some non-drivers who do not have parents to give them liquor or drink liquor?

James H. Gray:

I am sure there is.

Thurgood Marshall:

Is there anybody else?

James H. Gray:

Well, I am sure there are many who drink beer who do not drive with all licenses.

General Gray, does this statute prohibit an 18-year-old male from drinking 3.2 beer?

James H. Gray:

No sir.

Then, how can it be related to the objective you described?

James H. Gray:

I think it can because of the nature of the establishments that sell beer, many of them are package stores, 7/11, convenience stores, grocery stores, where you — in our society today, mostly drive to get to.

It is the legislature we are concerned with your objective, don?t you think they would have made it unlawful for an 18-year-old to drink this dangerous product?

James H. Gray:

No sir, because drinking it without driving —

If a boy and a girl of the same age go out together, the girl can go and invite her and they can drink it together?

James H. Gray:

Yes.

But the legislature just did not think of that eventually, is that your assumption?

James H. Gray:

No sir, I am not saying it did not think it but I am saying that the statute and I would have to be a candid to say it is not perfect.

It is true that does not solve all of the problems even if our offered reasons are true.

Thurgood Marshall:

What problems did it solve?

James H. Gray:

I think it does reduce the amount of traffic involved accidents in this age group which will affect the general population.

Thurgood Marshall:

Did the figures show that?

James H. Gray:

A reduction, no sir.

The figures we have submitted to the Court did not show reductions but show percentages of involvement.

Thurgood Marshall:

But it did not show it drunk.

James H. Gray:

No sir.

On the contrary, the FBI statistics show that the —

Thurgood Marshall:

(Inaudible) amended influence statute, don’t you?

James H. Gray:

Yes sir.

Do you think you would show anything at all about 3.2 beer?

James H. Gray:

Not specifically other than the preference for beer in the statistics on the roadside survey Exhibit 3, I would recall.

(Inaudible)

James H. Gray:

The statistics do not.

I gathered, the premise has been that 3.2 beer is not intoxicating.

James H. Gray:

Yes sir, this has been submitted by the appellants and I think it is simply not true.

Counsel relies on Oklahoma case which he says and means that 3.2% alcohol by weight in beer is non-intoxicating when in fact it is intoxicating.

Didn’t the Congress found that it was in fact at about 1933 or 1934 under Volstead Act.

James H. Gray:

No sir I am not sure; I am not that familiar with it.

I thought you did?

Some of us were around when the Volstead Act came.

James H. Gray:

The case I have cited in our brief is Douglas v. State and it went into an effort at that time to avoid a conviction on DUI charge but I wanted to cross-examine the officer about what kind of beverage he had been drinking.

The effort being there to require the state to prove that 3.2 beer was intoxicating because I think the record was to show that it is all he had to drink.

Our Court said that was not necessary, it was not an error because our penal statutes, the act to the fact statute, the DUI, reckless driving so forth and so on which could be involved in alcohol problem.

It does not matter, the Court says.

What kind of alcoholic beverage you drink as long as you are intoxicated?

So, I do not think this premise is correct.

General Gray, may I ask one other thing while you are interrupted?

To the extent that the evidence does shed any light on the difference if any and in fact on males and females of the consumption of alcohol, it tends to indicate that males because they are larger can absorb alcohol better than females.

Isn?t that correct?

James H. Gray:

I believe that is true.

When you consider the exact amount of alcohol intake, the average male with myself an exception being larger than females would be able to assimilate more alcohol without being any break than the corresponding females.

Assuming that is a fact just for the purposes of my hypothetical question, do you think that evidence would be sufficient to support the opposite discrimination from the one that the State elected to have; in other words would that evidence have been sufficient to provide an adequate constitutional basis for discriminating against females but in favor of males.

James H. Gray:

I think I would have to say yes to the extent that it would at least be a concrete physiological difference which would not be won based on old notions and stereotyping and so forth.

But I think —

But your theory then is that any rational basis is sufficient to sustain this discrimination?

James H. Gray:

Yes, if it is not based on a ground of difference which has no relation to the objective of the statute.

And I think we have —

But how do we know what the objective of the statute was?

James H. Gray:

Well, the Court has nothing but what the State Attorney General?s office presented as evidence is its best judgment on the legislative purpose.

In other words, if it is related to what the litigant says, he believes is a reasonable assumption as to the objective of the statute.

James H. Gray:

Yes sir, I have to be candid with the Court.

Sir, I have nothing to offer of a concrete nature as to the actual reasons.

The legislature chose to change this statute, not change it but to add a definition to this statute.

Oklahoma just does not keep that record ordinarily and I am not personally aware of it.

By the same token, I cannot assume that Mr. Gilbert?s comment was necessarily correct and that sectarian influence was the real reason.

I am not aware of that either.

Warren E. Burger:

I do not find McGowan v. Maryland in your citation of authorities.

Is it in your brief somewhere?

James H. Gray:

Your Honor, I do not believe I put McGowan in the brief.

We had tried to adapt the Trial Court?s determination that Reed v. Reed was the test and I do not disagree with that.

I think the Trial Court was correct in requiring this classification to be subject to close judicial scrutiny and I think it was —

Warren E. Burger:

Don?t you think that McGowan against Maryland gives you a little bit of support?

James H. Gray:

Yes sir, I think it does, and we have cited a number of cases.

Some of which that the counsel asked that this Court reversed.

You have cited the early cases decided in awake of the adoption of the Twenty-First Amendment, those opinions written by this, Mr. Justice Brandeis must have — the State v. Young?s Market (ph) and those cases?

James H. Gray:

Yes sir.

We have stated there some before and some after, we have stated Crowley and Christensen in 1890, and go through with such decisions as the Goesaert decision which was after the 1948 law.

I think what the Justice Stewart was talking about with the Twenty-First Amendment which was adapted somewhere in the 30s.

So a case in 1890 would have been before that rather than after.

James H. Gray:

Yes Your Honor, the reason outside of those earlier cases is to show primarily a history of this Court supporting, under the Tenth Amendment, the State?s power to regulate intoxicating beverages.

This power is crystallized in the Twenty-First Amendment.

Each of those cases I think without exception that I have cited both from 1890 and through Goesaert in 1948, all involved and an attack on equal protection basis.

None of them involved a sexual classification except for Goesaert.

William H. Rehnquist:

Well one of Justice Brandeis? opinion contains a statement, doesn?t it, that what is the proper classification under the — what is permitted by the Twenty-First Amendment cannot be forbidden by the Fourteenth Amendment?

James H. Gray:

Yes Your Honor, and we have cited that statement in our brief.

I do not know quite frankly I cannot evaluate that now in light of Reed v. Reed and California v. LaRue.

I am not sure.

William H. Rehnquist:

Reed v. Reed did not involve anything to do with the alcoholic beverage.

James H. Gray:

No, it did not.

It was an administrative appointment situation.

But we do think that California v. LaRue is close to this case.

It did not involve a sexual classification but in its own way I think it was a more difficult decision and more difficult problem than the case of Boren.

And the reason I say that is because the activity sought to be curtailed by California was to prohibit live sexual entertainment in those establishments which it licensed to sell liquor by the drink.

Some of those activities were I think admitted by this Court to or would have been ordinarily protected by the First Amendment.

In our case, the activity which is being restricted that is the ability to purchase beer is not we think and we have cited authorities, a constitutionally protected right.

Certainly, equal protection is the question here.

We are not minimizing that but even with First Amendment rights at stake, the Court are feeling California v. LaRue still recognized the presumption in favor of regulations authorized by the Twenty-First Amendment.

May I ask, does the record show whether the 3.2 beer in this case was imported into the State or manufactured in the State?

James H. Gray:

No, it does not and it would be all inclusive.

The statute would be all inclusive.

The Second Clause of the Twenty-First Amendment is very specific.

It was pointed out by Mr. Justice Brandies in the State Board v. Young?s Market Co. back in 1936, and refers to importation or transportation into the State.

William H. Rehnquist:

Yes sir.

So that would be a very — it might be a dispositive fact in this case, might it not, under the Twenty-First Amendment?

William H. Rehnquist:

Your Honor, although I am not going and pretend to be the scholar I perhaps should be in the history of the interpretation of the Twenty-First Amendment.

I can say only that it was my impression that it was not that strictly limited in its application in terms of regulatory authority over those kinds of beverages.

But even if that is true, surely under the Tenth Amendment, the police powers of the State, that the State has the authority to regulate this industry, as long as it does so in a reasonable manner.

This is always a standard test.

The specific authority under the Twenty-First Amendment, that was the condition upon its recommendation by the Congress to the States for adoption.

It is a great deal of history behind it and you have a specific provision in the Second Clause of the Twenty-First Amendment.

William H. Rehnquist:

Yes sir, and it refers to importing or in —

Warren E. Burger:

And Mr. Justice Brandies said for a unanimous Court to accept that Mr. Justice Butler concurred on end result and Mr. Justice Stone took part that the classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth.

You do not rely on that at all?

James H. Gray:

We do rely on that, Your Honor.

Perhaps, I misunderstood you.

If I am correct in assuming that importation of intoxicating liquors is not the only intoxicating liquors that may be controlled on the Twenty-First Amendment.

Then that authority is clear that equal protection attacks as cited in the 1890 case and through Goesaert in 1948 have all rejected equal protection attacks against regulations whether it was requiring a bond, requiring an importer?s license.

James H. Gray:

All of these things which were asserted to be a denial of equal protection were not accepted on that basis because of the broad authority whether they went from the 10th or through the Twenty-First in deciding in my opinion.

But I am wondering and I am wondering if though ostensively in my class favor, the strong language about the Twenty-First Amendment cannot be struck down by the Fourteenth and so I wonder if it is that strong.

I wonder if Reed and Reed and even California v. LaRue would still allow such quite a strong statement today.

But I think irregardless, the Trial Court in our case, found from evidence which you concede it was not open and shut, not altogether without some objections.

Yet I think, if we consider that legislatures in terms of what is admissible as evidence, what the Court could have considered?

I do not think legislators are bound to consider only evidence which would be admissible in the Court in reaching decision as to legislation.

But, ruled on the police file as ?strengthened? by the Twenty-First Amendment.

James H. Gray:

Yes.

This is used to strengthen, is it not?

James H. Gray:

Yes sir.

We think this is a minimum result based on the decision in California v. LaRue, it may be the Twenty-First amendment, should be even more influenced on this case.

On the Fourteenth Amendment, Oklahoma could pass laws and no Negro can have a drink of beer.

James H. Gray:

Your honor I would not pertain and I think the State has already confessed to this (Inaudible).

I personally hope you do not go that far?

James H. Gray:

No sir.

And I do not believe we will and we have tried to say and I think we have to say it again before this Court that we would not think that this evidence would justify a racial discrimination on the purchase of beer or alcoholic beverages of any kind.

But we do not think we are in the inherent suspect there yet either.

We do not think this Court has told us that yet and we think that under the retest that we have met the burden to show our rational relationship.

Then where could you go, do you lose?

James H. Gray:

Well, I think unless the presumption of the Twenty-First Amendment is stronger than I feel it is that if the Court rejects the evidence, then yes, we would probably lose.

Okay, rejected, it is said it is not sufficient to show them, it meets the reasonableness test, you lose?

James H. Gray:

I think so.

I cannot personally feel that the Twenty-First Amendment would save it all together if it did not pass the other test.

Did Oklahoma ever have laws prohibiting or limiting the sale of beer or other beverages to Indians?

James H. Gray:

I think so.

Yes sir, I think it was an absolute prohibition and I do not know — I cannot recall when it changed, but I believe that is right especially in territorial days.

I think this was so — but that was federal —

No special laws in the books down there.

James H. Gray:

None to my knowledge.

In Oklahoma?

Or any other states you know of?

James H. Gray:

None that I know of.

I do not know what federal regulations there might be — reservations but I do not know of anything about that stuff.

To the State Law as it could not apply to judges on the Court of Criminal Appeals, could it?

But Judge Befort (ph) was the Chief Judge, I am sure it did not apply to him.

James H. Gray:

No sir, I think all of those laws had a way of bending at the appropriate time.

Your Honor, I would disclose I think by — perhaps referring to one other case, the Oklahoma Supreme Court to my knowledge has not had an opportunity to rule on this issue directly.

The Council does cite Basset v. Basset which was decided after 1972 which was a Court of Appeals decision of Oklahoma.

The issue before the Court was whether a parent could sue an emancipated minor for a tort, the minor being between 18 and 21 and thus subject to the old statutes.

The cause of action having a reason before 1972.

The Court of Appeals concluded without having to change the legal theory that this kind of an action should not be allowed anymore or this rule should not bar the action anymore.

Chose instead to declare all 18-21-year-old minority distinctions prior 1972 as unconstitutional in latter Reed v. Reed.

The Court did not deal with this statute.

The Court did not deal with the Twenty-First Amendment, and we feel the Court went much beyond what was at stake in that particular case in reaching that conclusion.

The Supreme Court of Oklahoma?s rules governing that case indicate that being a Court of Appeals decision not specifically approved by the Oklahoma Supreme Court is persuasive to the Oklahoma courts only but it is not precedent.

And we think the approved precedent for this case is the decision below.

First time it has come to (Inaudible).

I think it would be difficult for you to object to the seller of beer asserting his own rights in this case, but do you or have you ever in this case argued that he has no right to assert the rights of the young men under 21?

James H. Gray:

No, Your Honor.

We have not proposed that argument and we have presumed perhaps the rules that the sale of 3.2 beer to the restricted minority in this case would subject that seller to sanctions, and perhaps —

Well, the basis for the claim that there is an escalated standard in this case is that it?s a sex discrimination.

James H. Gray:

Yes.

And your position is that the seller may make that sort of a claim.

James H. Gray:

I am not sure the seller can step-in the shoes of the minority.

I would have to say that we have considered at least that his own situation was sufficient to making a real part of interest, but he is certainly not a minor.

I do not think they can get a beer a license until they are 21.

So we know that the vendor is not involved in this statute.

And in the District Court, you had to defend claims by both, didn?t you?

James H. Gray:

Yes, we did.

Mr. Gray.

James H. Gray:

Yes, sir.

The record show whether or not there is any distinction made in the insurance rates charged for public liability insurance, young women as against young men?

James H. Gray:

No, the record does not reflect information.

I know that in Oklahoma at least until you are 25, you are rated pretty heavily in terms of Liability Insurance, but whether or not they distinguished between men and women, I do not know, and the record would not show.

General Gray, your statistical evidence, I believe contending substance shows that there are more male drivers than females in this age bracket and be that they do more drinking than the females do.

James H. Gray:

Yes, Your Honor.

That is basically which boils down and therefore there is a greater hazard.

James H. Gray:

Yes.

Would you consider it is sufficient as sustained statute if you had merely shown that males are more frequently drivers than females?

You have to have —

James H. Gray:

No, because that would not have made an alcohol related problem at all.

It would not have been then within the objective.

But is it enough? You have not proven that it is a 3.2 beer related problem.

I try to figure out just exactly what your syllogism is.

James H. Gray:

Your Honor we did not feel that it would have to be limited, the 3.2 beer or itemize this 3.2 beer for this purpose because it will be illegal for boys or girls, either one, to drink an alcoholic beverage in excess of 3.2 beer until they are 21.

So if the statistics shows that there is an alcohol involvement in under 21 years of age group, then it is illegal purchase automatically for boys.

It might have been for girls.

If it was hard liquor but would have not been if it was 3.2 beer.

So we think if the fact that there is alcohol involvement in the statistics, some of them is sufficient, not that it has to be related to just the one beverage 3.2 beer.

The hazard is the same and they are both (Inaudible) 21.

To me that the statistics relate entirely to the law violators, don?t they?

James H. Gray:

Except for the roadside surveys.

You are assuming that these law violators would obey this law but not those other ones, that is what your statistics relate to.

James H. Gray:

I am not sure I understand that question.

And I would like to try to answer that I am not sure —

Well, your statistical evidence is based primarily at least on arrests.

You are presuming, I know you first of course presumed innocent but for statistical purposes and legislative purposes, you are assuming those are people who have in fact violated the law.

James H. Gray:

Yes.

They violated laws now on the books.

But you are presuming they will all obey this law in order for this law to accomplish its objective.

James H. Gray:

Yes, I am afraid, yes.

Kind of an anomalies method of proving this legislative purpose.

James H. Gray:

Well, with the minority is not the only one.

These boys and girls in this restricted class of course are only part of that restriction.

Vendors cannot sell it to them either.

These people, we can expect to obey the law.

They are threatened under penalty of losing their license if they do not.

This does not mean the law is perfect, it does not mean that these boys cannot get it by having the girlfriends just go and get it.

This counsel quoted out it is not a perfect solution.

We do not think it is unconstitutional.

Warren E. Burger:

All right, thank you, Mr. Gray.

Do you have anything further?

Frederick P. Gilbert:

Yes, very brief.

Your Honor, may it please the Court.

On this question of standing my distinguished co-counsels offered me to invite your attention to two cases, Barrows v. Jackson in 346 U.S. and Sullivan v. Little Hunting Park in 396 U.S. that a white owner of real estate wishing to sell to Negroes does have standing to assert the equal protection rights of Negro vendees.

And I think that is relevant to the question here.

Warren E. Burger:

Hardly because that widens his market does it not?

He has an economic interest.

Frederick P. Gilbert:

Yes, Your Honor.

Well, precisely here, it is the same thing.

Also on this question about the boys being able to get their liquors somehow, this is just part of the old thing in Oklahoma that dries have had their law and the wets have had their liquor kind of the gentleman?s agreement.

But I will tell you who really is the loser in this game is the vendor who around election time can always expect to be rated by the local law.

That goes to the Stanton.

Now, getting intoxicated on 3.2, let me just say something factually from my own experience.

3.2 is so diluted that the normal man will get extremely bloated on the stuff before he can get drunk.

It is possible to get drunk but you have to force it down.

It is difficult to get drunk on 3.2.

The question was made about sex in the LaRue case.

That is a different kind of sex and what we have got involved in that case.

That sex is activity.

Frederick P. Gilbert:

This sex is a biological grouping.

If this Court would have pulled the rule saying, you do not have to serve or you cannot serve liquor at a horse race, you would not say that the State under the Twenty-First Amendment can regulate the alcoholic race relationship because that is using race in a different sense than the normal sense.

So that is why I am trying to explain the difference between sex in LaRue and sex here.

It is the same word that they mean two different things.

These statistics — I want to mention one thing, they all date from 1973.

There are some dates from 1972 but they were not published until 1973.

So this Court has liberated to take whatever inference it wants to what was or what was not before the legislature when this statute was passed.

Okay, I just have one other thought, I leave you with the thought that sobriety differential of 1 or 2% in this case was far less than the business experience differential in Reed v. Reed or the dependent differential between husbands and wives and Frontiero at first and so forth, Frontiero v. Richardson.

We are really dealing with something almost de minimis in the sobriety ratio.

To get the seeming imbalance, you have to juggle the statistics and try to discuss in my brief.

Well, I do not have time for parting thought I thank you for your time.

Warren E. Burger:

Thank you gentleman.

The case is submitted.