Beer and equality

Beer and equality

1. The law sorts people into groups all the time: by age, by income, by place of residence. Sometimes it sorts them by gender, and then the question is how weighty a reason the state must give for doing so. The US Supreme Court answered it in 1976 in a case about low-alcohol beer from Oklahoma. The case shows how a court tests a rule that treats men and women differently.

2. Oklahoma law called beer of up to 3.2 % “nonintoxicating” and allowed it to be sold to women from the age of eighteen, but to men only from twenty-one. In 1972 the state set the age of majority at eighteen for both sexes but kept the exception for this beer. For three years a young woman could buy it and a young man her age could not.

3. On 20 December 1972 two people sued in federal court in Oklahoma: a young man named Craig, who was not yet twenty-one, and Ms. Whitener, who held a license to sell this beer. The defendant was the state’s governor, Boren, hence the name of the case. The plaintiffs asked the court to declare the age difference discrimination against men and to bar its enforcement. In 1975 a three-judge court ruled against them.

4. By the time the case reached the Supreme Court, Craig had turned twenty-one. The ban no longer applied to him, so the Court did not consider his claim. The seller kept the case alive. The Court held that she had standing, the right to ask for a ruling in this particular dispute: the law was addressed to sellers, and she had either to lose customers or risk sanctions and her license. So she was allowed to assert her customers’ rights as well.

5. The suit relied on the Fourteenth Amendment to the US Constitution: its Equal Protection Clause forbids a state to deny anyone the equal protection of the laws. Every law singles someone out, so courts weigh the reason, and the level of scrutiny is how closely they do it. At the time there were two levels: for most laws a rational basis was enough, and classifications by race got the strictest scrutiny. Where gender belonged was disputed.

6. Oklahoma justified the difference by traffic safety and submitted statistics. Its 1973 arrest figures for driving under the influence showed 427 young men aged eighteen to twenty and only 24 young women, almost eighteen times fewer. A roadside survey of drivers in Oklahoma City showed that young men more often drove after drinking beer. The trial court found this enough for such a law.

7. The Supreme Court read the same data differently. Those arrested were 2 % of young men that age and 0.18 % of young women, so the law restricted all hundred because of two in a hundred. No study dealt with 3.2 % beer itself, which the state called nonintoxicating. And the law banned selling the beer, not drinking it: an eighteen-year-old girlfriend could buy it for a young man. Gender proved too imprecise a marker.

8. On 20 December 1976 the Court reversed the lower court by seven votes to two; Justice Brennan wrote the opinion of the Court. It stated the test for such laws: classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. The Court accepted traffic safety as an important objective. The link failed: banning sales of weak beer to young men did little for safety.

9. This test is stricter than a rational basis and milder than the scrutiny of racial classifications. Justice Rehnquist, who dissented, called it “intermediate”, and the name stuck: by 1988 the Court itself wrote of three levels of scrutiny. In 1996 it used the same formula to hold that Virginia violated the Constitution by excluding women from its military institute. The burden of justification rests on the state.

10. The judgment is narrower than it is often retold. The Court did not equate gender with race, and the justices said so explicitly. It did not set an age for buying beer: the state could choose any age as long as it was the same for everyone. And Ruth Bader Ginsburg was neither a judge in this case nor counsel at the hearing: the report names her as co-author of the American Civil Liberties Union’s amicus brief supporting the plaintiffs.

11. The beer case leaves two questions you can ask of any rule that sorts people into groups: what purpose it serves, and whether the sorting actually leads there. Figures about a group do not answer the second question on their own: two percent say nothing about the other ninety-eight. This is how both a statute and a rule in your own organization are tested.