# Appellants Brief — Craig v. Boren > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1248%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1976 - **Citation:** 429 U.S. 190 ## Text Buprome Court, U. & is lire >) +4 jn The neu MAR 1 1976 Supreme Court of the Unite States LC HAEL 80: a aK | October Term, 1975 . No. 75-628 CURTIS CRAIG, and CAROLYN WHITENER, d/b/a ‘‘The Honk and Holler,’’ Appellants, Vs. Hon. DAVID BOREN, Governor, State of Oklahoma, Hon. LARRY DERRYBERRY, Attorney General, State of Oklahoma, Hon. D. M. BERRY, Chairman, Hon. LAWTON L. LEININGER, Vice-Chairman, Hon. J. L. MERRILL, Secretary-Member, Oklahoma Tax Commission, Hon. RAY WALL, Presiding Judge, Ninth Judicial District Court, State of Oklahoma, lion. CHARLES H. HEADRICK, District Attorney, Ninth Judicial District, State of Oklahoma, Hon. ROSE JARVIS, District Court Clerk, Payne County, State of Oklahoma, Hon. FRANK PHILLIPS, Sheriff, Payne County, State of Oklahoma, and Hon. HILARY DRIGGS, Chief of Police, , Stillwater, Oklahoma, Appellees. BRIEF OF APPELLANTS FREDERICK P. GILBERT 1401 National Bank of Tulsa Building Tulsa, Oklahoma 74103 Attorney for Appellants WAYNE R. SCOTT CO., S07 S. QUAKER, TULSA, OK 74120 - (918) $87-2052 ———————— SC re eee TABLE OF CONTENTS es ee 8 sn noo oes e 55 aN es vee eee ine ii 1 5 a PR tas Same oer og ares l aT rin s cae k nae eee ak Keene ee ae 2 Constitutional Provisions and Statutes Involved ...... 2 ED GI yo noone ccensccbacsnsnsoudeees 3 Db .. ss cece ceneesueeuaerueee 3 I Gr MID 5 ene v ecu cancesecounsocctas 13 Proposition I: The decision below is so totally contrary to all the modern rulings on the subject, to include the authoritative pronouncements of this Honorable Court, that it safely may and should be simply re- versed, without any need for a detailed and exhaus- tive review of its belabored reasoning and tenuous rrr pen err ae net mG 14-15 Proposition II: The “‘statistics’’ adduced by the State are totally incompetent, under all theories of mathe- matics and law, to reliably tell us anything about the behaviour patterns of any sex or age group in- volved herein, with respect to 3.2% alcohol, or any- CR e Pegs eae Per ee Mel oem” 20 Proposition III: The discrimination at bar absolutely fails to satisfy even the minimal criteria of the tra- ditional test for mere rationality. ................. 43 Proposition IV: The juridical equality of male and fe- male American citizens is a positive rule of law; the District Court therefore erred in even entertain- ing the State's offer to “‘disprove’ this juridical equality as though it were a mere question of fact subject to an “evidentiary” attack. ............... 47 SEE EOE E OLE PN PE BUTI Be 54 ee eu cueduvnccs (bade diawal 55 INDEX TO CITATIONS Declaration of Independence ............... United States Constitution Amendment. XIV ....................... re cil cavescacidevsnes Dt Serta Clseaah shadees tans coed ee siies Ber ree rere Statutes Federal a a tl a a nn a State Statutes of Oklahoma, 1890 BRL LE Se yet eh SEE AR SE SR ea a i i weed Oklahoma Session Laws, 1933 an tot ildeeues re REE atl ey or Sa, ALOR ac ee Oklahoma Statutes, 1971 ee URN RE ea on SRE er arte oy har eg te sgt 9 ee ype rated et tase Oe Seager 9 EE i 9 65s anand Keka Coes eee 9 sks sion kDa er eee wate 9 I EI ORI 9 EE Sib dg 0 an khnda awe kina edenae ce 9 EE Tks deb 54s ees hes bebe dks eae 7, 11 EE Saws cchsanwesdeencacnendcacee eee 8 BPP err ropes rr re rere aie -S 8 Es ous kad esc an es eebaadelcneeseceeas 9 EE had avs son dueaaseunveenene cee 9 EE SE, shah Sa bela a eee dane wade cere 9 EE Si oil's Sin Catia oo Gedloe weaae a eekaas 8 4 re er ns err meee yer 9 3. 2S rrr re rere 8 I 6 oc va div wiedivess cases chee Reka 8 5 ES Te ee Me rN 9 PEE 69.649 54540kdSKdaee eee cues nae 9 ED hss kin gue an ees ceeen meadwun 46 a re yee eee 46 gL rer 2, 3, 7, 46, 55 Ff rrr herrea 46 aL ROS Nearer ee nee 2, 29 PE 4505s ca Gweie oda ckoedameawe teas 46 a rere reo rer reer er reese. 2,3 EE Ais 'b.viaruDa-cae aah ae awataada cea elae 25 RIED dices 00546 bs SeasOeuaaes ookenek wa tull 9 errs Cees eS. 8 EE 0k iis aN siete ao muce eee ce aces 8 EES ok caves cegha sud neeabaunntocui lt 33 RE S20. \a5Sc chat ee ud nbeius Gone om kada 9 63 OS. 2 401(B)(2) ........................... 9 Oklahoma Statutes, 1975 Supplement 10 O.S. 1975 Supp., Sec. 1101(a) ................. ll 15 O.S. 1975 Supp., Sec. 13 ..............000 0. ll — ili — 37 O.S. 1975 Supp., Sec. 245 ................. 11,55 47 O.S. 1975 Supp., Sec. 756(c) .................. 34 CASES Patricia A v. City of New York (1972) 31 N.Y.2d 83, 286 N.E.2d 432 ............. 15 Adkins v. Children’s Hospital ee i cae euncases daeuces 49 Argersinger v. Hamlin Teen ou hwcuwuusckeus 23 Ashcraft v. State (1940) 68 Okla.Cr. 308, 98 P.2d60............... 7 Bassett v. Bassett (Okla.App., 1974) 521 P.2d 434 ............ 13, 16, 17 Berry v. Cincinnati i ck linaetewenadtuwe. 23 Bradwell v. Illinois Ey vc sell Sele Ooewdbes 26, 48 Brown v. Baord of Education (1954) 347 U.S. 483 ...................... 18, 47,48 Brown v. Foley (1947) 158 Fla. 734, 29 So. 2d 870 ............... 16 Burgett v. Texas SUD MP I, MD wc ccc ciuuctcuccccdevecesses 23 Carnley v. Cochran (1962) 369 U.S. 506 ... 0... eee. 23 Chapman v. California (1967) 386 U.S. 18 ... 2.0... e cece eee e eee. 29 Cleveland Board of Education v. LaFleur (1974) 414 U.S. 632 ...................... 18, 23, 39 Commonwealth v. Burke 2 Ss MU GD GP OD oo kc se cccce de cudduece 16 Cronin v. Adams See nce ceckvenceces 14, 17, 48 Dancy v. Owens (1927) 126 Okla. 37, 258 Pac. 879 ................ 7 Daugherty v. Daley (N.D. Ill, 1974) 370 F.Supp. 338 ................ 16 Dunn v. Blumstein Re «re A Se 41 Ex Parte Matthews (Tex. Cr., 1972) 488 S.W.2d 434 ........... 0. ce eens 15 Fahy v. Connecticut (1963) 375 U.S. 85.6... ee eee. 29 Frontiero v. Richardson (1973) 411 U.S. 677 .......... 13, 15, 16, 23, 39, 50, 51 Goesaert v. Cleary (1948) 335 U.S. 464 ................... 14, 17, 49, 53 Harrigfeld v. District Court (1973) 95 Idaho 540, 511 P.2d 822 ............ 13, 15 Hayes v. Municipal Court (Okla.Cr., 1971) 487 P.2d 974 ................ 32, 33 Jackson Mun. Sep. Sch. Dist. v. Evers (5th Cir., 1966) 357 F.2d 653 ..... 2... 19 Jacobsen v. Lenhart (1964) 30 Ill.2d 225, 195 N.E.2d 6388 ............. 6 Jones v. Alfred H. Mayer Co. (1968) 392 U.S. 409 ... 0 eee. 47 Lamb v. Brown (10th Cir., 1972) 456 F.2d 18 . .11, 12, 13, 15, 17, 31,50 Leary v. United States (1969) 395 U.S.6 ....0000000000 0000000000... 18, 39 Linkletter v. Walker (2008) 300 UB. GOB .... 00s cevsuscesusneee eee 23 Loper v. Beto (2 Sf & See 23 Loving v. Virginia 4 9h LS & Sp 48 Muller v. Oregon 4. 2 303 8 Sees CCC 48 Ohio Bell Telephone Co. v. Public Utilities Comm. (1007) 304 UB. GOB... vc csccccssueeee eee 23 Papachristou v. Jacksonville tC , £ {© See CC 32 Peterson Tavern & Grill Owners’ Assn. v. Borough of Hawthorne (1970) 47 N.J. 180, 270 A.2d 628 ................. 16 Phelps v. Bing (1974) 58 Ill.2d 32, 316 ' ft £, See 15 Plessy v. Ferguson ( - {SS Swe CU 48 Radcliff v. Anderson 4 c(h Js 5 16 Reed v. Reed (1971) Ge Wak OE ob cceucececue 13, 15, 23, 39, 43, 49, 50, 51 Roberts v. Stell t (R £3 9 soe 19 Sai ler’s Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 485 P.2d 529 ............... 14, 16 Schware v. Board of Bar Examiners ( 9F lS eee UC 22 Scott v. Sandford 2 ) eS — 48 in Oia Seidenberg v. McSorley’s Old Ale House (SDNY, 1970) 317 F.Supp. 593 .................. 16 Shelley v. Kraemer Ek eccceceee 48 Stanley v. Illinois (1972) 405 U.S. 645 ...................... 18, 23, 39 Stanton v. Stanton (1975) ees 12, 13, 15, 16, 17, 19, 50 Stanton v. Stanton (1974) 30 Utah 2d 315,517 P.2d 1010 .................. 6 State v. Chambers (1973) 63 N.J. 287, 307 A.2d 78 .................. 54 State v. Manard (1947) 85 Okla.Cr. 105, 185 P.2d 483 ................... 7 State ex rel. Springer v. Bliss (1947) 199 Okla. 198, 185 P.2d 220............. 7,25 Stell v. Savannah-County Board of Education (S.D. Ga., 1963) 220 F.Supp. 667 ....... 19, 41, 48, 51 Tang v. Ping (N.D., 1973) 209 N.W.2d 624 .................. 13, 15 Taylor v. Louisiana LEE 15 Turner v. Dept. of Employment Ce ccc ccccoces 18, 39 United States v. Tucker (1972) 404 U.S. 443 ............................ 23 Walker v. Hall (W.D. Okla., 1975) ee cscs be cccccvccccccccses: l Weinberger v. Wiesenfeld cece eccecces 15 — oo White v. Fleming (7th Cir., 1075) 5438 FSa T30 ................. 13, 16 Women’s Liberation Union v. Israel (Ist Cir., 1975) 512 F.2d 106 ................. 14, 16 Yick Wo v. Hopkins PU ea Sa ace ene a a 19, 53 MISCELLANEOUS Challenge to the Court: Social Scientists and the Defense of Segregation, 1954-1966, I. A. Newby, L.S.U. Press, Baton Rouge, 1969 ................. 18 How to Lie with Statistics, Darrell Huff, W. W. Norton & Co., IRA ee 36 —_— 3u The Supreme Court of the United States October Term, 1975 No. 75-628 CURTIS CRAIG, and CAROLYN WHITENER, d/b/a ‘‘The Honk and Holler,’’ Appellants, VS. Hon. DAVID BOREN, Governor, State of Oklahoma, et al., Appellees. BRIEF OF APPELLANTS . COME NOW APPELLANTS, and for their Brief here- in, respectfully argue and urge as follows: THE DECISION HEREIN APPEALED The decision whose reversal is sought herein is (or was) styled Mark Walker, and Carolyn Whitener d/bla “The Honk and Holler,” v. Hon. David Hall, Governor, State of Oklahoma, et al., United States District Court for the Western District of Oklahoma (three-judge panel), No. CIV-72-867, Memorandum Opinion and Judgement filed May 17, 1975, Motion for New Trial overruled July 14, 1975. The decision (“Memorandum Opinion’’) is reported at 399 F. Supp 1304. The decision, and the formal Judgement (not reported) are also reproduced as Appendices A and B, respectively, to the Jurisdictional Statement herein. JURISDICTION Jurisdiction to review the three-judge District Court decision below by direct appeal is conferred upon the Supreme Court by 28 U.S.C. 1253. Notice of Appeal was filed on August 11, 1975, and pursuant to extension of time allowed by Mr. Justice White, the Appeal herein was docketed on October 28, 1975. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The statutes in issue in this Appeal are 37 Okla.Stat., 1971, Sec. 241, in conjunction with 37 Okla.Stat., 1975 Supp., Sec. 245. These statutory sections read as follows: MINORS §241. Sale, barter or gift to minor unlawful. — It shall be unlawful for any person who holds a license to sell and dispense beer and/or any agent, servant, or employee of said license holder to sell, barter or give to any minor any beverage containing more than one-half of one per cent of alcohol measured by volume and not more than three and two-tenths (3.2) per cent of alcohol measured by weight. Provided, a parent as regards his own child or children, is excepted from the provisions of this Act. §245. “Minor” defined. — A ‘‘minor’’, for the purposes of Sections 241 and 243 of Title 37 of the Oklahoma Statutes, is defined as a female under the age of eighteen (18) years, and a male under the age of twenty-one (21) years. It is contended that the foregoing statutory scheme, insofar as it purports to forbid the sale of 3.2% beer to or the purchase thereof by male persons 18 to 21 years of age, is void and unconstitutional as repugnant — to and violative of the Equal Protection of the Laws and the Due Process of Law Clauses of the Fourteenth Amendment to the Constitution of the United States, which read, in relevant part, as follows: “‘[NJor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its juris- diction the equal protection of the laws.” QUESTIONS PRESENTED FOR REVIEW The ultimate question herein is simply whether 37 Okla.Stat. 241, 245, is constitutional. Posed in the framework of this case, however, the included questions relate to the evidentiary aspects of the sex-discrimination/civil-rights problem, chiefly: to what extent, if any, is “evidence’’ purporting to “prove” one sex’s or the other's “‘inferiority’’ (or ‘‘difference,’’ or whatever else we may want to call it) even judicially cognizable at all in Federal Equal Protection litigation; if such evidence is indeed cognizable at all, and is statistical in nature, what safeguards must be erected to protect against the obvious abuses inherent in and the inevitable misuses of such data; and finally, how much of a “‘statistical”’ inequality between males and females must be proven before a statutory inequality can claim an immunity to the obvious meaning and mandate of the Equal Protection guarantee? STATEMENT OF THE CASE: BACKGROUND, HISTORY, FACTS The history of this litigation in the Courts below, with the chief developments and chronology thereof, is already detailed in the Jurisdictional Statement, Part E, =~ oe ‘Statement of the Case,” pp. 7-10, and need not be reproduced here. See also the District Court docket sheets (App., pp. 1-5), and the rest of the Appendix herein. To understand the particular age-sex discrimination at bar, and the mentality and motives which led to the enactment thereof, some review of its legislative history is helpful. The original predecessor of the discrimina- tion at bar appears to date from Oklahoma's very first Territorial Legislature, in 1890. Curiously, the “‘liquor”’ provisions thereof did not contain the discrimination. Section 3258 of the Statutes of Oklahoma, 1890 (Chapter 48, Liquors, Art. 1, Sec. 8), p. 655, prohibited the sale of liquor to “any minor, apprentice or servant under twenty-one years of age,’ and Section 2544 of the said 1890 Statutes (Chapter 25, Crimes and Punishment, Art. 57, Offenses Pertaining to Sale of Intoxicating Liquors, Sec. 4), p. 513, forbad the sale of liquor to “minors. Attention is invited to the seeming contrast between “any minor, apprentice or servant under twenty -one years of age’ of Section 3258, supra, and simply “‘minors of Section 2544. This contrast was more apparent than real, however, for it was Section 3966 of the 1890 Statutes (Chapter 64, Persons, Sec. 1), p. 752, which alone contained the [generalized] Territorial definition of “‘minors,’’ to wit: “Minors are: First. Males under twenty-ones years of age. Second. Females under eighteen years of age.” Thus, since a female at 18 might be “under twenty- one years of age, she was not a “minor. . . under twenty-one years of age, and the sale of any liquor was therefore legal to a female upon the attainment of her 18th birthday, since, per Section 3966 quoted above, —_ females were fully adult at that point for virtually all civil majority purposes in general. But why, then, was this generalized discrimination itself adopted? We may never know exactly the reason- ing relied upon, as no “‘legislative history’ materials on the background of Oklahoma’s Territorial laws have been discovered to exist by either side to this lawsuit. [In fact, even today, the Oklahoma Legislature does not report and publish floor debates, committee and sub- committee hearings, and the like, as does the Congress. ] However, it is doubtless fair to say that the Oklahoma Territory simply adopted the 18/21 female/male dif- ferentiation for the same reason or reasons that many States, especially in the Mid-West and the West, had adopted same in the Nineteenth Century (and in fact were retaining .it until just the very past couple of years or so). So far as can now be determined, we can only say that this archaic, Nineteenth Century scheme of 18 for women and 21 for men for civil majority, and whose last, dying vestiges are attacked herein, probably derived from Victorian and Frontier notions of “‘naturally”’ and/or ‘‘divinely’’ mandated and stereotyped sex roles in life and society for males, and females, ‘respectively.’ Pos- sibly this discriminatory scheme reflected some sort of a “folk myth’’ that girls “‘matured’’ more rapidly than boys; and possibly again, it reflected a prejudice that ys were somehow deemed “‘entitled’’ to several more years of parent-supported and -financed education and training, whether formal or otherwise, than were girls. Perhaps also the intent was not as discriminatory as the actuality of these laws: maybe it simply reflected a senti- ment that the male ought to be the breadwinner of the family, a responsibility then conceivably thought to = require at least 21 years of education, experience and maturity before the successful discharge thereof could reasonably be expected, whereas ine female was thought of as ‘merely’ the cook, housekeeper and bearer of children, which “‘lesser’’ obligations were arguably thought of as more easily dischargeable at a somewhat earlier age. Such, anyway, appear to be the “‘old notions” upon which the generalized age-sex discrimination un- derlying this case was founded see Stanton v. Stanton (1974) 30 Utah 2d 315, 517 P.2d 1010, 1012, and Jacobsen v. Lenhart (1964) 30 Ill.2d 225, 195 N.E.2d 638, 640. At any rate, by the time of Oklahoma’s first major post-Statehood recodification in 1910, only one minor variation on the Territorial scheme had occurred. There was now just one sale-of-liquor-to-minors provision, to wit, Section 3607, Revised Laws of Oklahoma, Annotated, 1910 (Vol. I, Ch. 39, Intoxicating Liquors, Art. 3), p. 930, and it only referred to ‘‘minors,” not to “‘minors . . . under the age of twenty-one.”’ As before, this ““Intoxicat- ing Liquors’ chapter itself still did not define “‘minors,”’ but rather, it merely continued to adopt the generalized “minors” definition, of Section 879, R.L., 1910 (Vol. I, Ch. 12, Contracts, Art. 1), p. 238, which retained 18 for women and 21 for men as the ages for their civil majority in general. The curiosity of the “‘non-intoxicating’’ alcoholic beverage in issue in this case was added to Oklahoma's laws shortly after Repeal (U.S. Const., Amend. XXI). House Bill 647, Fourteenth Legislature, Oklahoma Ses- sion Laws, 1933, Ch. 153 (enacted by popular referen- dum, Id., Ch. 70, pp. 124-126), defined as ‘‘non-intoxi- cating’ any beverage (usually beer) whose alcohol con- tent was 3.2% or less. Id., Sec. 1, p. 338. This statu- wiiwn tory designation of beverages containing 3.2% alcohol or less as ‘‘non-intoxicating’§ was to some extent nec- essary because the State Constitution, Art. 1, Sec. 7, and the “Prohibition Ordinance’’ thereto (1907), pro- hibited the sale of “‘intoxicating’’ liquors, but without defining the quantum of alcohol needed for a beverage to be deemed “‘intoxicating.’’ [The 3.2% designation as the boundary of alcohol’s “‘intoxicability’’ was upheld by the Oklahoma Supreme Court in State ex rel. Springer v. Bliss (1947) 199 Okla. 198, 185 P.2d 220."] In the current decennial revision of the Oklahoma code, the Oklahoma Statutes, 1971, non-intoxicating beverages are governed in Chapter 2 to Title 37 thereof. It is interesting to note that as late as this most recent, i.e., 1971, recodification, the “‘sale-to-minors’’ sections, 37 OS. 1971, Sec. 241 (et seq), still did not them- selves define ‘“‘minors,’’ but instead, as before, continued simply to employ Oklahoma's generalized “‘minors’’ defi- nition, contained in Section 13 to Title 15 (Contracts) of the Oklahoma Statutes, 1971, and which was, also as ‘Just where the figure “3.2” came from is not entirely clear, but it probably reflected medical opinion that the average human body could metabolize alcohol in concentrations of 3.2% or less as fast as the normal rate of ingestion in conventional usage, and thereby forestall that accumulation of alcohol in the body that actually leads to intoxication. Language suggesting that 3.2% beer can in- toxicate appears in the Oklahoma Criminal Court of Appeals decision of Ashcraft v. State (1940) 68 Okla.Cr. 308, 98 P.2d 60, but that is not strictly holding since the appellant therein had obviously been imbibing something considerably stronger than the proverbial “only two beers.” In Oklahoma, the Supreme Court is the State’s highest tribunal, Dancy v. Owens (1927) 126 Okla. 37, 258 Pac. 879, Okla.Const., Art. VII, Sec. 4, and the Criminal Court thereafter accepted the authoritativeness of the Supreme Court’s pronouncement in Springer-Bliss, supra, see State v. Manard (1947) 85 Okla.Cr. 105, 185 P.2d 483. before, the same 18 for women and 2] for men for civil majority in general. But 18 for women and 21 for men was only the 1971 (and preceding) Statutes’ civil adulthood age-sex discrimination in Oklahoma. Contrary thereto, however, for criminal purposes a male became an “‘adult’’ and hence prosecutable as a felon at 16, but a girl not until 18 (remaining till then only “‘civilly’’ processable as a mere juvenile or delinquent). 10 Okla.Stat., 1971, Sec. 1101(a). So, what we had as late as 1971 in Oklahoma were absolutely conflicting “permanent irrebutable pre- sumptions of fact’’ that the young female was, for civil purposes, deemed to be three years more mature than the male, yet for criminal purposes, the young male was deemed to be two years more mature than the female. Thus, as a “‘civil’’ adult and hence “competent” to run her own life under 15 OS., 1971, 13, the female at 18 could, in addition to buying all the 3.2% beer her car would carry, also legally marry (43 OS. 3), enter contracts (15 OS. 14), convey land (16 OS. 1), grant deeds of trust (46 O.S. 31), buy, possess, and smoke cigarettes (21 O.S. 1241-1244), enter and loiter in pool halls (21 O.S. 1103(2)), purchase concealable weaponry in unlimited amounts (21 O.S. 1273), and Heaven knows what else; yet the young man, suffering under the tutelage of infancy, couid do none of these things until three years later. In fact, about the only thing the young man 18-21 could do legally on his own was to enlist (or be drafted) into the Armed Forces (which in those days carried a risk far disproportionate to the degree of maturity which Oklahoma was willing to concede he had, but which was freely acknowledged as possessed by his like-aged sister or girlfriend). However, to back up several years in age, the young boy of 16 or 17, as a “criminal’’ adult and hence = we fully “‘accountable’’ for his misconduct “‘like a man,” 10 O.S. 1971, 1101(a), could easily get ten years in the Penitentiary for sharing his marijuana cigarettes with his like-aged (but criminally “‘immature’’) girlfriend (63 O.S. 2-401(B)(2)), ten years for getting caught in a penny- aule poker game with her (21 O.S. 941), five years for making “‘orthodox’’ love to her (21 O.S. 1120), ten years for ‘“‘unorthodox”’ love with her, (21 O.S. 886), another ten for asking her in writing about it (21 O.S. 1021), and so on — yet the like-aged female, though doing the identical (or even worse) acts, nevertheless enjoyed a relative immunity under a presumption she was still “incapable of knowing right from wrong,’ 10 OS. 1112(b), and could get at most up to only two years in a home for wayward and fallen girls. Nor does the difference in ‘time’ tell the whole story: The 16-18 year old boy, as an “‘adult felon,” also lost his right to vote (Okla.Const., Art. III, Sec. 1), to bear arms (21 O.S. 1283), to run for public office (26 O.S. 162), enjoy other State employment (51 O.S. 24.1), or sit on a jury (38 O.S. 28); he also became excluded for life from numerous commercial endeavors and ‘careers, and he even suffered certain Federal disabilities, such as enlist- ment into the Armed Forces, 10 U.S.C. 504 — all of which the criminally “‘immature’’ and hence non-felon girl was exempt from, 10 O.S. 1127(b), along with (to protect her “‘innocence’’) a right to privacy in the proceedings against her, 10 O.S. 1111, 1125, 1127(a), 1506. And then, as the ultimate absurdity, once the 17 year old girl would be caught, say, selling heroin to a 15 year old boy (so that both were juveniles), the criminal age- sex discrimination lapsed, whereupon our familiar 18/21 civil discriminatiou came back into play as the release ages for females and males, respectively, 10 O.S. 1139(b), meaning, in effect, that our 17-year-old female dope -_ pusher would get one year in reform school (to 18), but the 15-year-old male dope possessor (actually her victim) six years (to 21)! One truly wonders just where in this age-sex madhouse Oklahoma might have tried to pigeonhole the young transexual, hermaphrodite, or con- genitally nonsexed person (and indeed, at what age such unfortunates might even today be allowed to purchase their 3.2% beer). But to re-emphasize the point of reviewing the Oklahoma's various and conflicting age-sex discrimina- tions existing as late as 1971: (1) they were all general- ized discriminations, broken down only as far as the broad categories of ‘‘civil’’ and criminal,”’ but not other- wise directed towards any specific problem in particular, such as alcohol; (2) they had already existed in Okla- homa for decades, and, in the case of the civil dis- crimination, even before the very invention of the auto- mobile; (3) the very contradiction between the civil and the criminal discriminations’ order of the two sexes’ attainment of “‘adulthood’’ belies any assertion that the Legislature even could have ‘‘found’’ that one sex ‘matures’ earlier or more rapidly than the other; or (4) if it should be claimed that the Legislature did make such a “‘finding,” it would inescapably have to appear that the Legislature had done so on the basis of evi- dence and data which were available to it long before 1971. Such, anyway, was the status of Oklahoma's varying age-sex irrationalities as late as 1971, and of which the instant discrimination is about the last survivor. How- ever, several juridical events occurred in later 1971 and early 1972 which shook this incoherent scheme to its foundations, namely, the Supreme Court’s decision in Reed v. Reed, 404 U.S. 71 (November, 1971), the ratifica- tion of the Twenty-Sixth Amendment (July, 1971), and — ve most directly in point, the Tenth Circuit's decision in Lamb vy. Brown, 456 F.2d 18 (March 16, 1972), which held Oklahoma's criminal age-sex discrimination, 10 O.S. 1971, Sec. 1101(a), supra, unconstitutional as violative of Equal Protection. Within a matter of about two weeks from the Lamb decision the Oklahoma Legislature had amended 10 O.S. 1971, Sec. 1101(a), supra, to make 18 the juvenile/adult cut-off age for both sexes for criminal purposes. House Bill 1705, Oklahoma Session Laws, Ch. 122, p. 143, April 4, 1972 (codified as the present 10 O.S. 1975 Supp., Sec. 1101(a)); and almost contemporaneously therewith the Legislature, which logically had also been deliberating the unquestioned unconstitutionality of Okla- homa’s civil age-sex discrimination too, 15 O.S. 1971, Sec. 13, supra, adopted this same age of 18 for Okla- homa’s civil majority (for both sexes) as well. Senate Bill 515, Oklahoma Session Laws, 1972, Ch. 221, pp. 332 et seq (April 7, 1972), now codified primarily as 15 OS. 1975 Supp., Sec. 13. However, due to Fundamentalist opposition to any legislative action combining the twin anathemas of “‘sex equality’ with “‘beer,’’ a specific exception in Senate Bill 515, supra, had to be made to preserve the 18/21 female/male discrimination for non-intoxicating liquors. This reservation is codified as 37 Okla.Stat., [1972, 1973, 1974, and} 1975 Supp., Sec. 245, which is precisely the statute squarely challenged in this instant Appeal.” 2A 1973 legislative attempt to equalize the age-sex reservation for beer also failed because of sectarian opposition. The principal preacher appearing to oppose age-sex equalization for beer testified that its retention was necessary to preserve young men from the “pool, beer, and girls” syndrome. See article, “Committee Votes to Adjust Legal Beer-Buying to Age 19,” Tulsa Tribune, Tuesday, February 13, 1973, page one (although the exposure of young women to pool, beer and men did not appear to pose any theo- logical problems.) os oe The discrimination obviously could not and cannot be defended on these bases, but the succession of the asserted and ostensible “‘legislative policies’ that were claimed for it throughout this litigation is instructive. The original policy claimed was the “‘earlier female maturation’ theory, see the Motion to Dismiss, App., 19. In the Appellees’ (hereinafter “‘the State’’) brief to the Tenth Circuit, App., 22, the sole purpose advanced was asserted conclusorily to relate “to the health, safety, and welfare of all the citizens of Oklahoma.’ App., 23. Orally, however, the State urged the ‘‘must have been’ argument (that surely there ‘‘must have been” some legitimate purpose for it, or surely the Legislature wouldn't have enacted it), although when pressed the State finally conceded that it simply ‘‘didn’t know’ its original purpose as the relevant historical materials had unfortunately been lost. The Answer urged a “greater potential for causing harm’”’ since young males “consume 3.2% beer in a greater quantity than females,’ App., 32, although in the Pre-Trial Order the State claimed no more than “‘that the rationale for the sexual differentiation at bar appears to be that youthful males present a graver driving-while-intoxicated problem than do youthful females,” App., 35 (emphasis added). Finally, at trial, the asserted justification was declared to be that young males ‘‘drive more, drink more and commit more alcohol-related offenses,’ App., 43, whereupon the State proceeded to put on a case which expanded the issues considerably beyond the driving-while-intoxicated limi- tation of the Pre-Trial Order, App., 52. So, in the final analysis, we see that our lingering, moribund discrimination at bar was in its inception based precisely on the very “‘old notions’’ and “‘demon- strated facts of life’’ condemned in Stanton v. Stanton, 421 U.S. at 10, 14, and Lamb v. Brown, 456 F.2d at 20. otite The discrimination never related directly to 3.2% beer at all until 1972, and it was retained with that specific orientation then only because of blatantly sectarian in- fluences in the Legislature. The Appellants’ evidence consisted essentially of expert testimony which clearly established that there is absolutely no scientific (including psychiatric and socio- logical as well as physiological) justification for the dis- crimination in question; and the State relied exclusively on statistical data (published after the statute's 1972 reenactment) which it claims is relevant to justifying the instant age-sex discrimination as indicating that the ‘average’ young male's sobriety rate may be as much as one or two percent less than the “average” young female’s — but which data the State expressly confessed would be insufficient to justify a like age-racial discrimi- nation, App., 97-98. A detailed examination of the evidence upon which the District Court sustained the instant discrimination is offered in Proposition II to this Brief. SUMMARY OF ARGUMENT 1. The instant age-sex discrimination is squarely contra to this Court's authoritative pronouncement there- on in Stanton v. Stanton, 421 U.S. 7, and to every other extant ruling on the subject, Bassett v. Bassett (Okla. App., 1974) 521 Pod 434, Harrigfeld v. District Court (1973) 95 Idaho 540, 511 P.2d 822, Tang v. Ping (N.D., 1973) 209 N.W. 2d 624, and Lamb v. Brown (10th Cir., 1972) 456 F.2d 18. See also Frontiero v. Richardson (1973) 411 U.S. 677, and Reed v. Reed (1971) 404 US. 71. 2. The sex-equality principle is in no sense ‘‘di- luted”’ in the context of alcohol. White v. Fleming (7th = Cir., 1975) 522 F.2d 730; Women’s Liberation Union v. Israel (1st Cir., 1975) 512 F.2d 106; Sai'ler’s Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 485 P.2d 529. Goesaert v. Cleary (1948) 335 U.S. 464, and Cronin v. Adams (1904) 192 U.S. 108, are presented for overruling. 3. The State's statistics prove nothing: they are mere arrest, not conviction, statistics; they do not reveal the actual number of respective young adults involved with alcohol; they do not appear to relate to the 3.2% alcohol in issue herein; their averages are unweighted and “‘stacked”; but even accepting them they “‘prove”’ nothing more than a de minimis difference in the male- female sobriety rates, suggesting “‘experimental error” or ‘‘random deviation” rather than any innate or organic difference. 4. The discrimination is wholly irrational with respect to its asserted purpose of restricting 3.2% alcohol to responsible young adults, in that it bars the soberest of the males therefrom, while allowing access thereto to the drunkennest of the females. In any event it accomplishes nothing more than requiring a male to purchase his beer in a two-step transaction, while allow- ing the female to buy hers in a one-step transaction. 5. Since the full equality between the sexes has become a positive rule of law, and is no longer a ques- tion of controvertible fact, it was erroneous for the District Court even to have entertained an attempt to ‘disprove’ the said equality. PROPOSITION I THE DECISION BELOW IS SO TOTALLY CON- TRARY TO ALL THE MODERN RULINGS ON THE SUBJECT, TO INCLUDE THE AUTHORITATIVE PRONOUNCEMENTS OF THIS HONORABLE COURT, THAT IT SAFELY MAY AND SHOULD BE SIMPLY REVERSED, WITHOUT ANY NEED FOR A DETAILED AND EXHAUSTIVE REVIEW OF ITS BELABORED REASONING AND TENUOUS EVI- DENCE. All the modem authorities (or at least those still extant) fully support the Appellants’ prayer for reversal. Most in point, of course, is this Honorable Court's pro- nouncement in Stanton v. Stanton (1975) 421 U.S. 7, that statutory schemes allowing the rights of adulthood to females at 18 while withholding same from males to 21 are in obvious contravention of Fourteenth Amendment Equal Protection. And Stanton v. Stanton was, of course, but a corollary of this Court's previous pronouncements that statutory discriminations based on the mere sex of the citizens are, with but rare exceptions, categorically unconstitutional. Frontiero v. Richardson (1973) 411 U.S. 677, Reed v. Reed (1971) 404 U.S. 71; see also Wein- berger v. Wiesenfeld (1975) 420 U.S. 636, and compare Taylor v. Louisiana (1975) 419 U.S. 522. So well established has this principle become in recent years, in fact, that it would be next to impossible even to cite, let alone discuss, the expanding plethora of lower-court decisions reciting the same obvious prin- ciples. Appellants will therefore content themselves with the mere enumeration of some of those voiding age-sex discriminations in particular, not only the ‘conventional’ ones of 18 for women and 21 for men, Harrigfeld v. District Court (1973) 95 Idaho 540, 511 P.2d 822, Tang v. Ping (N.D., 1973) 209 N.W.2d 624, Phelps v. Bing (1974) 58 Ill2d 32, 316 N.E.2d 775, but also several variations thereon, Lamb v. Brown (10th Cir., 1972) 456 F.2d 18, Patricia A. v. City of New York (1972) 31 N.Y.2d 83, 286 N.E.2d 432, and Ex Parte Matthews — = (Tex.Cr., 1973) 488 S.W.2d 434; see also Radcliff v. Anderson (10th Cir., 1975) 509 F.2d 1093 (en banc), cert. den. _ U.S. ___, 44 L. Ed.2d 95, 95 S. Ct. 1667 (holding Lamb v. Bre: »n, supra, retroactive). One particular irony of the instant Appeal is that even Oklahoma itself has now held the pre-1972 version of the instant discrimination unconstitutional! Bassett v. Bassett (Okla. App., 1974) 521 P.2d 434, paraphrasing, at 436, almost verbatim the Supreme Court’s epochal language in Frontiero v. Richardson, supra, 411 U.S. at 686-7 — and in a way that implies a retroactive voiding of Oklahoma’s mostly-repealed 18/21 female/male dis- crimination. Thus, but for the fortuitous circumstance of their having elected the Federal forum below, the Appellants would by now have won their case a year or so ago! Nor can the fact that the instant discrimination in- volves alcohol be a basis for “‘distinguishing’’ Stanton v. Stanton and Bassett v. Bassett. The modern cases have all reached the contrary conclusion, even in the State courts, Sailer’s Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 485 P.2d 529, Peterson Tavern & Grill Owners’ Assn. v. Borough of Hawthorne (1970) 47 N.J. 180, 270 A.2d 628, Cammonwealth v. Burke (Ky., 1972) 481 S.W.2d 52, cf. Brown v. Foley (1947) 158 Fla. 734, 29 So.2d 870, as well as in the Federal, White v. Fleming (7th Cir., 1975) 522 F.2d 730, affirming 374 F.Supp. 267 (E.D. Wisc., 1974), Women’s Liberation Union v. Israel (Ist Cir., 1975) 512 F.2d 106, affirming 379 F. Supp. 44 (D.R.I., 1974), Daugherty v. Daley (N. D. Ill, 1974) 370 F. Supp. 338 (three-judge court), and see also Mc- Crimmon vy. Daley (7th Cir., 1969) 418 F.2d 366, and Seidenberg v. McSorley’s Old Ale House (SDNY, 1970) 317 F.Supp. 593. In fact, the District Court's tone was = = so uncertain on this “‘alcohol’’ point that it is not entirely clear that Stanton, Lamb, Bassett and the others were distinguished on the Twenty-First Amendment basis. Significantly, the District Court avoided even the cita- tion of such seemingly relevant decisions (at least from the inequality standpoint) as Goesaert v. Cleary (1948) 335 U.S. 464, and Cronin v. Adams (1904) 192 U.S. 108. What the District Court did do, however, was to “distinguish Stanton v. Stanton, Lamb v. Brown and similar cases on the asserted basis that those decisions were decided as abstract questions of pure law, whereas this case turned on the facts — that is, that while Stanton, Lamb, et al. had voided age-sex discriminations which depended on no more that factually-unsupported “old notions” and “‘facts of life,’’ 421 U.S. at 10, 14, and 456 F.2d at 20, in this case the State officials actually “proved” the unfavored sex’s “‘inferiority’’ with respect to the subject-matter of the discrimination (or “‘demon- strated a difference,’ or whatever we may want to call it). And just what was this male “‘inferiority’’ that was “proven” by the “‘factual evidence?’’ Essentially, the District Court “‘found”’ that whereas some 99+% of the female young adult population presently appears to be free from socially-objectionable involvement with alcohol, nevertheless, by “‘contrast,’’ it is “only” 98% of the youthful male population that appears free therefrom; and after ten belabored, tortured pages of printed opinion text in the Federal Supplement, plus eight pages of a veritable telephone-book of statistical appendices, the District Court concluded that this less than two percent ‘proven’ difference suffices to avoid the “pure law” decisions in Stanton, Lamb, etc., and to uphold the dis- crimination at bar on the basis of the “factual” stereo- type of the entirety of the male sex as set and depicted = by the offending two percent thereof. Contra, Stanley v. Illinois (1972) 405 U.S. 645, Cleveland Board of Edu- cation v. LaFleur (1974) 414 U.S. 632, Turner v. Dept. of Employment (1975) US. , 46 L.Ed. 2d 181, 96 S.Ct. 249, and see Leary v. United States (1969) 395 U.S. 6, 32-54. The only historical example Appellants can offer that parallels the situation at bar is that of the racial equality decisions of the Ninteen-Fifties, chiefly Brown v. Board of Education (1954) 347 U.S. 483, and the “massive resistance’ that followed, both in as well as out of the courts. For a long time the legal theory per- sisted in the South that Brown had been rendered on the basis of a “‘pure”’ or an “‘abstract’’ question of law (or mostly “law” with ‘‘inadequately-developed facts’’). Therefore, the segregationist forces concentrated inter alia on an effort to “educate’’ the Federal Judiciary, and even, it was hoped, the Supreme Court itself, pur- suant to an evidentiary demonstration to develop a “record” of “‘scientific facts,’’ “expert testimony,” and “social data and statistics,’’ upon which a lower Federal court could make a segregation-favoring “‘finding of fact”’ that would either be “‘binding’’ on the Supreme Court under some rule relating to limitations on the appellate review of judically-found facts, or which might even convince the Court that its Brown v. Board of Education decision had been based on misconceptions of biological truth, and was therefore more dictum than holding. 5 The most celebrated of these “‘factual’’ or “‘statisti- cal’’ attempts to overcome (or “‘distinguish’’) Brown was 25See Challenge to the Court, Social Scientists and the Defense of Segregation, 1954-1966, by I. A. Newby (Revised Edition, 1969, Louisiana State University Press, Baton Rouge, La.), esp. Ch. 8, “Efforts to Reverse the Brown Decision,” pp. 185-212. = Stell v. Savannah-Chatham County Board of Education (S.D.Ga., 1963) 220 F.Supp. 667. An examination of that decision reveals an astonishingly close parallel to exactly how the District Court in this case has purported to avoid the unmistakable mandate of Stanton v. Stanton and related pronouncements. The short shrift given to Stell® should likewise dictate the outcome to this vir- tually identical case. The time has passed for avoiding on such bases the Supreme Court's most solemn pro- nouncements on fundamental guarantees of justice and equality in the racial, the sexual and related contexts. American men and women can no longer accept for their Equality guarantee anything less than “‘the pledge of the protection of equal laws,’’ Yick Wo v. Hopkins (1886) 118 U.S. 356, 369, and certainly not when the very ‘statistics’ being relied on to “‘nullify’’ the Equal Pro- tection Clause “‘prove’ no more than the mere _per- certage or two differentiation which the instant “‘data”’ are said to disclose. , In fact, not only is the flat rejection of the “‘stat- istics’ approach to “factually demonstrate’’ some group's ‘inferiority’ (however expressed) now constitutionally mandated as a matter of law, such rejection is also 3After a couple of mesne reversals, 318 F.2d 425 and 333 F.2d 55 (5th Cir., 1963-64), certiorari was denied, sub nom. Roberts v. Stell, 379 US. 933, 13 L.Ed.2d 344, 85 S.Ct. 322 (1964), despite the fervent urgings of a number of Southern attorneys general to accept Stell as a vehicle for reexamining Brown. An attempt to evade the appellate mandate, 255 F.Supp. 83, 255 F Supp. 88 (S.D.Ga. 1966), was again reversed, 387 F.2d 486 (Sth Cir., 1967), and so ended the chief effort to “relitigate” Brown from an “evidentiary” standpoint. A similar celebrated “evidentiary” attempt to “disprove” Brown’s factual premises was buried in Jackson Municipal Separate School District v. Evers (5th Cir., 1966) 357 F.2d 653, and finally abandoned upon the denial of certiorari, 384 U.S. 961, twelve years after Brown. =_ — necessary as a sound judicial pre-emptive measure to preserve our courts from evermore getting drawn into the ‘statistics’ quagmire that has engulfed this litigation, as will be amply depicted in the Appellants’ next and regrettably but unavoidably exhaustive Proposition. PROPOSITION Il THE “STATISTICS” ADDUCED BY THE STATE ARE TOTALLY INCOMPETENT, UNDER ALL THEORIES OF MATHEMATICS AND LAW, TO RELIABLY TELL US ANYTHING ABOUT THE BEHAVIOUR PATTERNS OF ANY SEX OR AGE GROUP INVOLVED HEREIN, WITH RESPECT TO 3.24 ALCOHOL, OR ANYTHING ELSE. Turning now to the Record, we see little or no dispute over the authenticity of the items. adduced, the chief controversy being essentially as to whether any of these items are judicially cognizable, and if so which ones, and then, of course, the interpretation placed thereon. The Appellants’ evidence consisted chiefly of the expert testimony of a practicing psychiatrist holding a baccaleaureate in biology and chemistry as well as an M.D. degree, App. 73-74, and a professor of biological psychology at the Oklahoma University Medical School’s Center for Alcohol-Related Studies, App., 112-113. They testified in essence that there is absolutely no scientific basis whatsoever for the discrimination in question, whether viewed from the standpoints of structural ana- tomy, biology, chemistry, endocrinology, neurology, medi- cine, psychology, psychiatry, sociology, or whatever, App., 85-86; that the effect of alcohol upon the human species is independent of the sex of the individual and = that there are absolutely no differences in particular between males and females 18 to 21 years of age with regard to either maturity, intelligence, or any related quality (with particular reference to alcohol). App., 75- 86, 121. The only caveats expressed were that males, being more muscular, could for that reason be viewed in a general sense as more “‘active’ than females, App., 92, 94-96; that females, being somewhat smaller and having somewhat lesser body fluid than males, could for that reason be viewed in a general sense as possibly more affectable by equivalent amounts of alcohol than males, App., 83, 85, 107, 114-121, 151-174; that young men might possibly have a greater socially-induced but not innate, App., 108-109, “‘interest’’ and “‘curiosity’’ in alcohol (as well as a number of other things) than young women, App., 93-94; that in later life (from about the fifth decade on) App., 106 there appear to be more males than females who seek clinical help for alcohol- related problems; but that in any event the actual pro- portions of either sex having any real problems with alcohol are extremely minimal, App., 100-101; and that the view of modern science is that there is no essential difference between the sexes with respect to the intake and handling of alcohol, App., 142-147, 150. The State stipulated to the expert qualifications of the Appellants’ expert witnesses, App., 75, 113-4, and offered no experts of its own. Except for the caveats above enumerated, the cross-examination of the expert witnesses elicited nothing to impeach their testimony-in-chief that the discrimination in issue is totally devoid of any basis in scientific fact. So, the discrimination before us must stand, if at all, solely on the strength of the State's “‘statistics,’’ and on the validity of the inferences which the District = Fo Court drew therefrom; and, until sexual Equal Protec- tion litigants can be authoritively assured of the impro- priety of even the offer of “‘statistical’’ data to ‘‘prove’’ one sex’s or the other’s “inferiority,” the instant Ap- pellants will have no alternative but to urge a detailed scrutiny of precisely those “‘statistics’’ in this case. Let us begin with State’s Exhibit 1, summarized in relevant part in the appendix to the District Court's decision, 399 F.Supp. at 1314, and Jurisdictional State- ment at A22. This was an extract of State-wide arrest data in Oklahoma in 1973, and is selected for the focal point of our study as the exhibit purporting to be the most in point, and also because the State's other exhibits were merely cumulative thereto. The first reason why the District Court should have rejected the offer of this Exhibit outright, or certainly declined to be swayed thereby, is, as stated, that the Exhibit only discloses arrest, not conviction, data.* That is, since arrests are nothing more than glorified accusa- tions or allegations, and since under American law an individual man (or woman) cannot be deemed guilty of anything until convicted thereof, it is likewise imper- missible for a court of law even to speculate, let alone conclude anything about some group’s collective guilt from ‘‘data’’ merely reflecting a number of arrests for some offense or another within that group. What could have been relevant in this case might have been the conviction data for the sex(es) in question, assuming, of ‘In fact, the State’s Exhibit 2 even bears the legend, “Includes those released without having been formally charged.” App., 60; 399 F.Supp. at 1315, J.S. at A23. 5See Schware v. Board of Bar Examiners (1957) 353 US. 232, 241-243. course, that the convictions were duly shown to have been counselled, Argersinger v. Hamlin (1972) 407 U.S. 25, Berry v. Cincinnati (1973) 414 U.S. 29, for it is well-established law that the absence of counsel so vitiates “the very integrity of the fact-finding process,’ Linkletter v. Walker (1965) 381 U.S. 618, 639, that con- victions not affirmatively shown to have been counselled, Carnley v. Cochran (1962) 369 U.S. 506, 516, cannot be tolerated as evidence of actual guilt, even for collateral purposes, see Loper v. Beto (1972) 405 U.S. 473, cf. United States v. Tucker (1972) 404 U.S. 443, and Burgett v. Texas (1967) 389 U.S. 109. Nor can the State's plaintive plea about the “administrative inconvenience” involved in sifting the actual convictions from its arrest tabulations, App., 46-47, 59, any longer pass Federal muster in Equal Protection litigation, Reed v. Reed, 404 U.S. at 76, Stanley v. Illinois 405 U.S. at 656, Frontiero v. Richardson, 411 U.S. at 688-691, and Cleve- land Board of Education v.: LaFleur, 414 U.S. at 646- 648. Neither may a court of law take the raw arrest data and by some sort of a “judicial notice’ approach simply guess at a magic percentage and suppose that the convictions are equal to the product of arrests times this ‘‘judicially-noticed” magic percentage, Ohio Bell Tele- phone Co. v. Public Utilities Comm. (1937) 301 US. 292. In short, absent some tenuous type of ‘‘judicial notice, speculation, or outright guesswork, there was (and is) absolutely no basis in the instant Record (or more precisely, Exhibit 1) for any court to reach a quantitative conclusion as to the number of young males who actually committed some type of alcohol-related offense in Oklahoma in 1973. Nor any basis for deter- mining the number of such females. Therefore, under any theory of the law of evidence or of judicial review, — 3 — ail it was absolutely erroneous for the District Court even to have admitted the State’s Exhibit 1 into evidence, let alone to have concluded therefrom, even in part, that young males are more objectionable in their re- sponse to alcohol than young females. Let us now move to the next fatal defect in these “statistics,” again using Exhibit 1 as our base example. Even assuming that the male arrests reflected therein were convictions, we still can’t tell whether they depict a greater male than female malinvolvement with alcohol for the simple reason there is absolutely no elucidation in this (or any other) Exhibit that the arrests even necessarily relate to different individuals. That is, adding up (from 399 F.Supp. at 1314, J.S. A22) the figures of 152 + 107 + 168 = 427 (18-21 year old male DWI's), and maybe adding thereto 340 + 321 + 305= 966 (18-21 year old male Public Drunks), for a total of 1,393 male alco- hol-related arrests in Oklahoma in 1973, does this latter “datum” mean that 1,393 young men got arrested one time apiece in 1973? Or that 139.3 young men got ar- rested ten times apiece? Or simply that one male on a perpetual drunk throughout 1973 got himself arrested therefor 1,393 times? Since the Exhibit doesn’t enlighten us, we can either just take a wild guess, as apparently the District Court did, or, we can simply admit that we just don't know and can't determine the crucial datum of how many individual young males (or females) actually were arrested in 1973. Failing that, there is likewise no basis, other than by rank supposition, for concluding that there were necessarily even more indi- vidual males at all than individual females so arrested that year. But passing over these threshold problems, the next pitfall in considering the materiality of these ‘data’ = is that they do not even disclose whether the arrests in question derive from consumption of the precise beverage actually in issue herein, to wit: 3.2% beer (as opposed to the stronger liquors). That is, since Okla- homa’s age-sex discrimination relates only to alcohol in concentrations of 3.2% or less, with no sexual dis- criminations regarding alcohol in higher concentrations,>5 the “‘factual’’ justification for such a scheme must neces- sarily be that there indeed do exist data which factually demonstrate (1) a different male-female response to alco- hol in concentrations of 3.2% or less, and (2) an identical male-female response to alcohol in concentrations greater than 3.2%. So, the question is, is there anything in Exhibit 1 (or elsewhere herein) that indicates that the arrest data relied on derive exclusively (or even primarily) from the assertedly sexually-differentiable 3.2% beverages, and do not derive from the assertedly sexually-neutral stronger ones? No. So far as Exhibit 1 and the others disclose, all the arrests might just as easily derive from the “‘hard’’ liquor as from the 3.2% variety. In fact, the legal presumption must be that the arrests disclosed in the State’s Exhibits 1 et al. do relate exclusively to “hard” liquor, for only those actually intoxicate, the lesser 3.2% variety having been found by both Legislature and People of Oklahoma to be non-intoxicating, 37 O.S. 1971, Sec. 163.1, and judicially determined to mean just exactly that in State ex rel. Springer v. Bliss (1947) 199 Okla. 198, 185 P.2d 220.° If, indeed, any of these arrests do derive from 3.2% beer, it is most probably the 55For “intoxicating” liquors, i.e., those with more than 3.2% alcohol, the age is 21 for both sexes. Okla. Const., Art. XXVII, Sec. 5 (1959); 37 O.S. 1971, Sec. 537(a)\ 1). *See fn. 1, supra, p. 7. female arrests depicted that do so, since, due to the “natural and proper timidity and delicacy’’ of their sex, see Bradwell v. Illinois (1873) 16 Wall. 130, 141 (con- curring opinion), it is the girls who would be the ones most likely to opt for the softer refreshment. [Nor does the reference to “‘beer’’ in the State’s Exhibit 3 disturb the foregoing analysis, as that Exhibit likewise makes no indication whether the “‘beer’’ referred to therein is the 3.2% variety, or the stronger type.] But assuming the initial difficulties, that arrests equal convictions, that each conviction was of a different male, and that all these 1,393 instances of demonstrated drunkenness derived exclusively from 3.2% beer, let us now move into an area where ‘“‘statistics” can start proving truly insidious. Let us concentrate on the DWI statistics’ of our Exhibit 1: 427 for the young men, versus only 14+2+8=24 for the young women. By ignoring all the previous difficulties, do we not then “show” that young males are clearly more dangerous in their DWI propensities than young women? Not necessarily. We can’t be sure, because we don’t know and haven't been told, how much actual driving young men do in comparison to young women. The seeming driving-while-intoxicated “‘imbalance’’ might very well be in direct proportion to the basic male-female driving imbalance. For example, if some statute allowed females to get hunting licenses at age 18, but prohibited males therefrom till 21, and the basis asserted therefor was a greater male “‘recklessness’’ surfacing in the gun-and- outdoors environment, certainly we would not be satisfied as to the factual existence of such a greater male “‘reck- lessness’”’ merely by having our attention invited to data "The Record herein is devoid of any indication whether Curtis Craig is possessed or either automobile or driver's license. — 296 — ee disclosing that an infinitely greater number of 18-21 year old male infantrymen suffered gunshot wounds in Viet- nam than such 18-21 year old female infantrymen, since an equally logical explanation of such a statistical im- balance might be that there were just more young male infantrymen in Vietnam to get injured than like-aged female ones. Or, to take an example somewhat closer to the evidence herein, say, regarding the mere traffic injury data of the State’s Exhibits 4 and 5 (399 F.Supp. 1320-1, J.S. A30-31), let us assume that men are involved in ten times as many accidents as women, but do twenty times as much driving as women. It might be technically accurate, then, to say that men cause ten times as many accidents as women (assuming “‘are involved in’ means ‘‘cause’’), but a more truthful analysis would obviously be that men as drivers are only half as reckless women. So to get back to the seeming male-female DWI “imbalance” of Exhibit 1, does that ‘‘imbalance’’ show that the “‘average’ young man is any greater a DWI risk than the young woman? The answer is, we simply can't tell from the Exhibit, since the underlying male- female driving (whether intoxicated or not) proportion is not stated. Some indication of this latter datum however, might be indirectly gleaned from the State's Exhibits 3 and 8. In Exhibit 3, the “‘Omec”’ study, which purports to be the tabulated result of a random roadside survey conducted in Oklahoma City in 1972 and 1973, as part of Table 3 thereof, 399 F.Supp. at 1316, J.S. A25, we see, under “Number of Participants,” 243 + 238 = 481 males under 20 polled during 1972 and ‘73, respectively, as against only 70+68= 138 like-aged young women in the same years. So, if this assertedly random roadside sampling is an indication of the sexual proportions of drivers actually on the road, it would appear that about 78% of the drivers under 20 are male. And in Exhibit 8, _—_ the Federal study, App., 209-210, it appears that the percentage of female-driven vehicles drops from around 26% during daylight to a minuscule 6 percent at night. But this does not tell the whole story, for the individual (or ‘‘average’’) male driver appears to drive considerably more each year than the female, as tabulated in the just- cited Table 1 to the Omec study, 399 F.Supp. at 1316, ].S. A25, where we see, under “Average Miles Driven,” 15,670 + 16,794 = 32,464 miles for males under 20 in 1972-3, as opposed to 10,471 + 10,456= 20,927 miles for females under 20 in the same years, or a ratio of more than one and a half times as much driving per individual (or “‘average’’) male than female. And the text of these studies, see paragraph 1, 399 F Supp at 1315, J.S. A24, it would also appear that these data do not include commercial and industrial vehicles, which certainly con- stitute a significant percentage of the total, have greater annual mileages, and which are almost totally male- driven. Thus, while it is impossible to derive a precise figure from the State’s vague data herein, it would appear fair to say that men do at least 90 per cent of the overall driving in this Country, or at any rate, so much as to render the seeming DWI “imbalance” of Exhibit 1 totally unreliable as a basis for sustaining a legal inference that the average male driver presents any especially graver DWI threat than the average female driver. So much, then, for the slippery questions subsumed usually under the heading of “weighted” versus “un- weighted’’ averages. Let us now move from the insidious to the truly treacherous, and take a cold, hard look at the basic integrity and even honesty of these statistics, and ask ourselves whether they were even gathered in a fair manner. Let us take the example of the third category of the “‘statistics’’ in Exhibit 1 (and 2), which after due reflection the District Court deemed it more prudent not to reproduce in its opinion, namely, ‘Liquor Laws’’ (contained on Exhibits 1 and 2, and testified to at App., 52-53, 59-60). This “Liquor Laws’ heading was a “catch-all,” App., 53, 59, that included everything that was neither Public Drunk nor DWI, and specifically included the “‘working-in-a-beer-joint-by-a-minor”’ law, 37 O.S. 1971, Sec. 243, and assorted municipal “‘possession- of-beer-by-a-minor’’ ordinances — wherein “‘minors’’ are defined as males under 21 and females under 18, so that when females 18, 19 and 20 possessed beer or worked in bars, such occurrences did not end up in the tabula- tions as violations, but when males 18, 19 and 20 pos- sessed beer or worked in bars, they did. App., 54-55, 60-61. Naturally there would be more “‘violations’’ under “Liquor Laws’ for the young men than young women in such circumstances. And incredibly, the District Court below ruled this only went to the “weakening’’ of those lines of Exhibits 1 and 2, but not to their admissibility! App., 55. Appellants strenuously urge that the admission of such an exhibit was constitutional as well as legal error of the highest order, error so gross, Appellants urge again, as to cast the gravest doubt on the validity of all the District Court's rulings on and treatment of the State’s exhibits. And, while the District Court later did omit any reference to these ““Liquor Laws’ items in its published opinion, the fact that though “‘weakened”’ they were still admitted constitutes per se a “reasonable possibility that the evidence complained of might have contributed” to the decision, Fahy v. Connecticut (1963) 375 U.S. 85, 86-7, cf. Chapman v. California (1967) 386 U.S. 18, 22-24. Mathematically speaking, the error (‘‘fallacy’’) of the “Liquor Laws’ exhibits is known as “‘assuming that = = which was to be proven.’’ Thus, let us say, we are to prove that discriminating between males and females 18-21 for liquor is constitutional. To establish that (ac- cording to the District Court's reasoning), we need only prove factually that males and females 18-21 react dif- ferently to alcohol. The specific basis selected to prove this is to show that more males than females 18-21 commit alcohol-related offenses. Chosen to prove that are the two specific offenses of “‘possession of beer by a minor’ and “working in a bar by a minor,’ and sure enough, we find lots more males 18-21 committing these two particular offenses than females 18-21. Therefore, Q.E.D., the statutory discrimination is valid? Wrong. The fallacy occurs when the specific offenses of “‘pos- session by a minor’ and “‘working by a minor’ are selected as representative of showing more 18-21 male violations of general liquor offenses than female, because the statistics reflecting the arrests for these “minor” offenses are “‘stacked’’ against the male 18-21 by those offenses’ very definition of “minors,” although it was the validity of precisely that definition of ‘‘minors’’ that was thereafter to be proven from the initial raw data. As stated, to “‘prove’’ the validity of a questioned statute by evidence generated (or ‘‘stacked’’) by the very pre- existence of the statute which in contemplation of the Constitution could not pre-exist without some contempo- raneously pre-existing factual basis as well, is precisely to “‘prove’’ the statute's validity through the fruits of a pre-assumption of its validity. A racial analogy might be to enact a law denying some ethnic group meaningful educational opportunities, thereby blighting the group’s children’s intellectual and academic development, then compiling “‘statistics’’ showing the group’s “deficit” in scholastic achievement, and then using that deficit as a basis for perpetuating the statute. One truly wonders — 90 — how far the State might have gotten in defending, with the District Court’s rationale, Oklahoma's former criminal age-sex discrimination, 10 O.S. 1971, Sec. 1101(a), dis- cussed supra, pp. 8-10, 11, and later voided in Lamb v. Brown (10th Cir., 1972) 456 F.2d 18, if instead of urging ‘‘the demonstrated facts of life,’ the State would have adduced “‘statistics” showing that within the 16 and 17 year old age group, the boys were committing “crimes,” but girls were only committing mere “‘acts of delinquency.”’ Surely the Tenth Circuit would not have overruled an objection to such “data” as going merely to the “‘weakening’’ but not the admissibility thereof to show a greater teenaged male than female “crime” rate sufficient to retain the antecedent scheme of prose- cuting boys as felons at 16, while continuing to process girls as mere delinquents till 18. Let us next consider the “‘stacking’ of the data herein by means a little more subtle or covert than by an express statutory mandate. Take, for example, the typical police attitude of “‘selectively’’ singling out the youthful male for disproportionately closer scrutiny and harsher enforcement of various laws. This very prejudice itself (in the original sense ov. “‘praejudicium’’) inevitably leads to a self-perpetuating vicious cycle based on “assuming that which was to be proven,’ as follows: the police [first] assume that young males as a class are “rowdy” and deserving therefor of a little extra surveillance and strictness — which is naturally inter- preted by the youths as harrassment — which leads to confrontations — then arrests — which then provide the “statistics” which reinforce and reperpetuate the com- munity's prejudice that young males are as a class ‘naturally’ rowdy, and therefore require the imposition of specialized statutory penalties just on them. A racial —_ —— analogy might be a higher “vagrancy’’ arrest rate for Negroes than for Caucasians in some backwoods Mis- sissippi crossroads; but rather than proving an innate Negro ‘‘shiftlessness,’’ such arrest would far more likely just reflect a prejudice by the local police that since Negores are in fact already more “‘shiftless’’ than Cau- casians, they therefore just need a little more arresting for it. Or, to take an example of police prejudice reflected by the very statute at bar, let us briefly follow a couple comprised of a similarly-situated young man and young woman 18-21. The young man, thirsting for some refresh- ing 3.2% beer, invites his girlfriend out. He drives her to the Honk and Holler, where the girlfriend goes in and purchases the twain’s beer. Because of social con- vention the young man then drives himself, girlfriend and beer to some pastoral locale, where the twain then consummates its bacchic rites, to include an injudicious overindulgence in the beer (on a non-discriminatory basis). But on returning his girlfriend home, the young man somehow attracts a patrolman’s curiosity. The young man is routinely arrested, but the girl is simply told to get on home (or else is chivalrously taken there by the officer himself). Actually proving prejudice in the ‘‘stacking’’ of law- enforcement data is, of course, an imprecise science. However, Oklahoma itself has openly acknowledged the existence of “‘selective’’ law enforcement in the State, see Hayes v. Municipal Court (Okla.Cr., 1971) 487 P.2d 974, 980, and no one would dispute the fact that the “public drunk’’ and related laws are now fulfilling the same “‘catch-all’’ and ‘“‘selective enforcement” traps for- merly afforded by the “vagrancy’’ and the “‘loitering’’ laws, Papochristou v. Jacksonville (1972) 405 U.S. 156, — S 168-171, Hayes v. Municipal Court, supra. Nor can there be any doubt as to Oklahoma's past discriminatory policies of singling out youthful males for selectively oppressive punishment: these policies were institution- alized for decades in 10 O.S. 1971, Sec. 1101(a), discussed supra, pp. 8-10, 11. Given these uncontroverted facts, then, how can any credence be placed on the statistical ‘differentiation’ allegedly disclosed by the State's arrest data? They obviously reflect nothing more than local police practices in arresting young males more often than young females, for the same offenses, because of a self-perpetuating “sugar and spice’’ mythology. Before continuing with this general discussion of discriminatory statistics, let us quickly review the State's other exhibits. Exhibit 2 was the Oklahoma City version of the State-wide Exhibit 1, and need not be discussed in detail, other than to note that to some undetermined degree Exhibit 2’s data are probably included in Ex- hibit 1’s. Exhibit 3, the ““Omec’”’ study, was the road- side survey referred to supra, pp. 27-28. One initial defect of this Exhibit is its broad categories of persons ‘‘Less Than 20 Years.’’ Since both sexes can get driver's licenses at 16 in Oklahoma, 47 O.S. 1971, Sec. 6-103(1), it is evident that this “‘under 20” category must include persons 16, 17, 18 and 19 years of age, while the dis- crimination at bar relates only to persons 18, 19 and 20. For anything disclosed in Exhibit 3, all of its “‘under 20” examinees could have been only 16 and 17. Its Table 1, 399 F.Supp. at 1316, J.S. A25, curiously reflects rather similar drinking habits for young males and females, and it reveals only two young persons, male or female, that in both years together had a blood-alcohol content high enough (.10 and .11 per cent) to be deemed “under the influence’’ by Oklahoma’s standard (of .10%, 47 O.S. = 1975 Supp., Sec. 756(c)), far too slight a sampling to extrapolate any meaningful inferences therefrom. Exhibits 4 and 5 were traffic accident data for 1972 and 1973 in Oklahoma (published, respectively, the following years). A higher male than female casualty rate is disclosed for both drivers and passengers, but these data too are totally worthless for the purposes at bar since they do not disclose alcohol involvement vel non, nor even the basic fault in the accidents, which could very well have been due in most or all instances to the other drivers (e.g., the “typical woman driver,’ possibly a young one with several 3.2% beers too many?). Also inhering in these data is, again, the problem of not knowing the ratio of actual driving done by males as opposed to females, thereby leaving us wholly unable to evaluate whether or not the seeming male/female in- juries “‘imbalance’”’ actually implies any higher male pro- pensity for “recklessness” and the like. Appellants are further astonished that the District Court deemed the higher male passenger injury rate worthy of considera- tion and citation in support of the discrimination at bar. 399 F.Supp. at 1309-10, J.S., Al0-11. That statistic could very well derive from the men’s having let their wives or girlfriends do the driving. Exhibit 6, App., 182-184, contains FBI compilations of Nation-wide arrest data for 1972 and arrest trends over 1967-1972, for the categories of DWI, Liquor Laws, and Public Drunk, therefor constituting the Nationwide version of Exhibits 1 and 2 for Oklahoma and Oklahoma City, and therefore also subject to the same criticisms. Exhibit 7, App., 185-207, was a conglomeration of charts and tabulations for the DWI problem in Minnesota dur- ing 1971, offered as cumulative to the Oklahoma data, which it was, and likewise subject to essentially the same = Par ne ee objections. Exhibit 8, App., 208-227, was an HEW com- pilation of again similar data. Refocussing our attention back on Exhibit 1 now, let us at this point accept as valid the 1,393 arrests of males 18-21 versus 126 of females. This seeming 11-to-1 imbalance looks truly awesome, doesn’t it? Well, once again, not necessarily. Accepting those figures as absolute truth, and then taking the data from the 1970 Census, App., 178, of 69,688 males 18-21 year old males in Oklahoma, and 68,507 such females, we see that the young male drunkenness percentage is about 2.00% (1,393 arrests + 69,688 males 18-21), and the female figure 0.18% (126 arrests + 68,507 females 18-21), or roughly the 11-to-1 ratio previously noted — but an alternative way of expressing these identical data is that the male non-drunkenness ratio is 98.00%, versus the female non- drunkenness ratio of 99.82%, which is another way of stating, and from the State’s own evidence, that the male-female sobriety ratios differ by less than two per- cent! Indeed, with but a slight juggling of the State's figures, we see that for the offense of DWI, there were more young men non-DWI (69,688 — 427 DWI arrests= 69,261) than young women non-DWI (68,507 - 24 DWI arrests = 68,483), and likewise more non-Publicly Drunk young men (69,688 —- 966 Public Drunk arrests = 68,722) than non-Publicly-Drunk young women (68,507 — 102 Pub- lic Drunk arrests = 68,405). The superiority of the male over the female for these two activities can be expressed as ratios, of 1.01 for DWI (69,261 non-DWI males + 68,483 non-DWI females), and 1.005 for Public Drunk (68,722 non-Publicly-Drunk males + 68,405 non-Publicly- Drunk females), which when converted to percentages reveal the young male to be 101% more reliable in the =_ = DWI context than the female, and 100.5% more reliable regarding Public Drunkenness. So, from identical raw figures we have, with mini- mal juggling and manipulation, “proven” three abso- lutely contradictory revelations about young males’ and females’ response(s) to alcohol: (1) that the male gets about 11 times drunker than the female; (2) that the sobriety rate differential between the sexes is so slight as to be negligible, and (3) that the male is over 100% more reliable with alcohol than the female! This very fact, that from one set of raw data we can readily “‘prove’’ that males are inferior to females, equal to females, and superior to females in their capacity to handle alcohol, actually proves something quite different, namely, that there is absolutely nothing that cannot somehow be “proven with “‘statistics.’ Indeed, the very use of “statistics” as just demonstrated herein fully verifies the observation of Disraeli, that ““There are three kinds of lies: lies, damned lies, and statistics.”* And, if with ““statistics’’ juggled about like those at bar the District Court could accept as “‘proven’”’ the legal as well as the factual “‘inferiority’ of the White, adult, male, Protestant Anglo-Saxon Appellant Curtis Craig herein, then whose Equality can ever be safe in this Country?! But to continue with the puzzle at bar: which of the three proffered jugglings of the basic data herein reflect the “‘truth’’? Just to show we aren't cheating, let us confine our ensuing discussion to the 11-or-so-to-1 drunkenness ratio of Oklahoma’s young adulthood (of 2.00% for the males and .18% for the females), and the less-than-two-percent-differential non-drunkenness ratios ‘Quoted on the frontispiece of an enlightening little monograph entitled How to Lie with Statistics, by Darrell Huff, W. W. Norton & Co., Inc., New York, 1954. (of 98.00%, male, vs. 99.82%, female). With the one, there might appear to be some arguable difference in alcohol response; with the other, obviously not. [The racial analogy might be in a community of 100,00 Cau- casians and 100,000 Negroes, wherein no Caucasians and ten Negroes are arrested for “vagrancy”’ in some given year. Which “‘statistic’’ tells us the truth about Negro “‘shiftlessness’’ — the datum that the Negro shiftlessness rate is “infinitely” (ie., ten divided by zero) greater than the Caucasian? Or that the Black-White non- shiftlessness ‘ratios are virtually identical?) Appellants submit that choosing between “drunk vs. non-drunk, ’ or “‘shiftless vs. non-shiftless”’ is an erroneous posing of the alternative(s). The proper question, when we are considering the “‘stereotyping’’ of a certain group so as to justify a conclusive inference, from so many of the members of the group suffering some deleterious propensity, that membership in the group is per se a valid basis for the collective denial of some entitlement enjoyed by others, is simply whether the stereotype advanced is factually true, which means: is in actual fact the deleterious propensity truly so universally common among all the members of a certain group as to render rational, under the relevant constitutional standard, a conclusive presumption that any single, randomly-selected individual member of the group must surely himself exhibit his group's common failing as well?® Or, alternatively, is the deleterious propensity not so widespread among all the members of the group as to *An altemative formulation stating the same thing would be whether the deleterious propensity is in fact so widespread throughout the group that the probability of any single, randomly-selected individual member of the group not displaying the propensity would be neglible. \— 37 — render rational (in the constitutional sense) the conclu- sive presumption that any single, randomly-selected indi- vidual member of the group would necessarily exhibit the said propensity himself? Therefore, the way to answer the question of choos- ing the “deleterious’’ versus the “‘non-deleterious’’ per- centages as representative or characteristic is to determine which one of the two more fairly typifies the group as a whole, for it is the typification vel non of the group as a whole which is at issue in the stigmatiza- tion vel non of the group as a whole. Thus, if the deleterious quality can be shown by honest and com- petent statistics to be possessed by a hundred percent of the group, then the statutory categorization of the entire group would make some degree of common sense. As the percentage of group members actually suffering the deleterious propensity begins to drop below 100%, how- ever, we start getting increasingly uneasy about the en masse stigmatization, for common sense tells us we are hurting an ever-expanding proportion of innocent in- dividuals not in fact displaying the characteristic. At a point no later than when the percentage of group mem- bers displaying the characteristic in question drops below 50% the voice of conscience tells us that it is the non-deleterious percentage that must now dictate our view of the group, since as a factual matter it is the non-deleterious majority that now more truly represents the group as a whole, which “‘as a whole” characteris- tic is the sole legitimate justification for any conclusive categorization of a group. So, in determining whether it is the seeming 11-to-1 male-female drunkenness inbalance, or the + 1.82% non- drunkenness differential which more fairly reflects the alcohol response of Oklahoma’s young adulthood, we = = merely examine which datum more widely applies to the subject population was a whole. In this case, the 1l-to-l figure applies to .18% of the female and 2.00% of the male population 18-21, or about 1.09% of the total; whereas the + 1.82% figure applies to 99.82% of the fe- male and 98.00% of the male population, or about 98.91% of the total. Obviously, the + 1.82% differential figure better reflects the situation as ithe whole, just as, to re- strict our view to just the males, the 98% sobers repre- sent their sex far more accurately than do the 2% drunks. This approach of not condemning the multitude for the sins of the few is reflected in the previous “per- manent irrebutable presumption of fact’’ decisions by this Honorable Court. For instance, even though many, per- haps “most”’ (i.e., more than 2%) of unwed fathers may be unfit as parents, to condemn all unwed fathers as unfit was held irrational from the factual viewpoint in Stanley v. Illinois (1972) 405 U.S. 645, 654. The per- centage of Servicewomen not their families’ bread- winners does not appear in the Frontiero v. Richardson decision, 411 U.S. 677 (1973), but again it was surely in excess of the instant 2%. Likewise with the propor- tion of women in their last trimester of pregnancy: not all are physically incapacitated, but clearly more than 2% are. Cleveland Board of Education v. LaFleur (1974) 414 U.S. 632, Turner v. Dept. of Employment (1975) _._. U.S. ___, 46 L.Ed.2d 181, 96 S.Ct. 249. Even where it was a percentage differential between male and female (rather than a portion out of one or the other) that was in issue, Reed v. Reed (1971) 404 U.S. 71 struck down a statute premised on the fact that women may generally be somewhat less educated or experienced than men to some unstated degree (but still more than + 1.82%). Compare Leary v. United States (1969) 395 U.S. 6, Part II of which invalidated a statutorv _— ‘en presumption that all marijuana is imported in view of the “significant percentage, id., at 46, (surely > 2%) that is domestic. Clearly, therefore, our “‘statistical’’ view of the male sex's ability to handle alcohol must be governed by its 98% sobriety rate; and our view of the male-female response differential must likewise be governed by the + 1.82% datum. The essential fallacy underlying this whole “‘statisti- cal’’ approach, as a matter of fact as well as of law, lies in the illusion it creates of an “‘average’’ male or female. But human beings are not “‘continuous” or fungible; they are “quantized’’ as individuals. There is absolutely no basis for saying that any one male, or female, possesses a particular characteristic, or even it to any set degree, simply because of some percentage of other individuals that may possess that quality — at least not until the percentage approaches 100%, or what is known as a “‘direct’’ or a “‘one-to-one’ relationship.'® This point can be exemplified by the very datums we have been discussing: they do not mean that any individual male, upon drinking an equal amount of alcohol with a female, is going to end up 1.82% less sober than the female, any more than that an indi- vidual male consuming an equal amount of alcohol will end up eleven times drunker than she! But misimpres- sions just like this often get formed when one talks of the ‘average’ man or woman.!! For instance, it could be rational to presume (though certainly not irrebutably) that an individual man possesses a prostrate gland. ''The Galactic Ghoul’s report that the “average” Earthling is “half male and half female” might help illustrate the point. — wn Ultimately, the entire “‘statistics” approach to dis- crimination becomes an argument by the proponents thereof that they are not really discriminating against the target race, sex, or whatever, as such, but against some deleterious characteristic said to be possessed by the target group, and that membership in that group is merely an “index” of the individual group-member’s high probability of exhibiting that characteristic. Thus, in the Stell v. Savannah-Chatham litigation discussed ante, pp. 18-19, the segregationists made the ostensible claim that they were not segregating Negroes qua Negroes, but that “‘uneducability’’ was what actually was being segregated, with the Negroes’ race as merely the (or an) “index” thereof. Id., 220 F.Supp. at 668, But, when- ever a “less drastic alternative’ to determining “‘unedu- cability’’ is proposed, see Dunn v. Blumstein (1972) 405 U.S. 330, 343, such as the administration of say, some impartial and racially-neutral examination to deter- mine such “‘uneducability’’ of a particular, individual Negro before relegating him off the “‘slow’’ school track, the discriminators’ response invariably degenerates into some sort of an “‘administrative inconvenience’ plea, that the individualized test proposed would be “‘imprac- tical’’ to give, and that the individual's ethnicity must be retained as the criterion because of the superior bureaucratic ease and efficiency in administering same. Of course, whenever we hear that argument, we know we're listening to double-talk. So too with the situation at bar. The only conceiv- able defense to the instant discrimination at bar is that it does not discriminate against males as such, but rather it discriminates against alcoholic irresponsibility by cer- tain members of Oklahoma's young adulthood, and merely uses the individual young adult’s sex as the index —_— of that irresponsibility. But if that is the reason for the discrimination, would it not make far better sense, as well as better justice (say under the “‘less drastic alterna- tive’ doctrine) to administer some type of individualized, sexually-neutral testing to determine this alcoholic irre- sponsibility? And would not such an individualized pro- gram, in addition to lifting the unfair burden to the responsible 98% of the male sex, also enhance the as- females (who can presently purchase 3.2% beer in unre- stricted amounts) and thereby drying up that hitherto- uncontrolled female irresponsibility? Well, yes, but, no, the State tells us, because (surprise!) the inconvenience in administering such a fair, just, sensible and basic- policy-furthering program might tend to be bothersome to the bureaucracy. 399 F.Supp. at 1313, J.S. A18-19.'? The discrimination at bar therefore justifies itself in to present himself at any local law-enforcement having a “drunkometer” device ing within a fixed time a number of cans of 3.2% ing to his body weight, and then testing on the breathalyzer his result blood-alcohol concen- tration. If it's under a certain level, he passes, and the agency certifies the results to the highway department (Department of Public Safety) for placing a “3.2% endorsement” on his driver's license. The Department would be the logical agency to handle such a program, as it already has the mechanism for administer- ing large numbers of tests and license-issuances; it would also be the logical choice as driver's licenses are universally used as ID cards in Oklahoma, and also because the DWI danger is the chief asserted concem over the young drinking adult. A further advantage to doing this through the Department would be its means for handling revocations as well (as is presently done in the case of DWI's). This may not be the most accurate testing program possible, but as a “less drastic alternative” to the present discrimination it does not appear so intolerably “burden- some” as the State would have us believe. — = the final analysis not by pretending to be the accurate way to predict the young adult’s response to alcohol, but rather, just the easy way. This revelation, taken with the State's frank conces- sion that data equivalent to those adduced herein in the ethnic context would clearly not suffice to justify an age-racial discrimination like that at bar, App. 97- 98,'* adequately disposes of whatever else might remain of the “‘statistics’’ herein. THE DISCRIMINATION AT BAR ABSOLUTELY FAILS TO SATISFY EVEN THE MINIMAL CRI- TERIA OF THE TRADITIONAL TEST FOR MERE RATIONALITY. Statistics aside, the instant discrimination clearly fails to satisfy even the most minimal of traditional Equal Protection tests, namely, that of the “rational relation- Under the first criterion of this test, it is not sufficient for validity that the statute discriminate be- tween two groups that are “‘different."’ By definition, any two groups will somehow be different, and certainly males and females are ‘‘different.’’ The legal question is not, therefore, mere “difference, but whether the two groups are “‘similarly circumstanced,”” see Reed v. Reed (1971) 404 U.S. 71, 76, and by that is meant whether they are similarly circumstanced with respect to the particular legislative policy asserted to be the basis for the discrimination. '8This concession does not mean, of course, that data revealing ethnic (and religious) differentiations with respect to alcohol response do not exist. See App., 209. —~ = While the real for the discrimination at bar is theological, see ante, pp. 5-6, 11, let us posit what necessarily has to be its asserted purpose, namely, to deny access to 3.2% beer to those members of the 18-21 year old age bracket who behave irresponsibly with respect to alcohol. The means employed to achieve that end is our discrimination of allowing all females but no males in the said age bracket to purchase 3.2% beer. The factual basis underlying the choice of the sexual deter- miner as the mechanism for identifying the irresponsible members of the State’s young adulthood is declared to be that 99+% of the female members thereof appear to display the desired responsibility with respect to alcohol, as opposed to ‘‘only’’ 98% of the males. Assuming all the foregoing to be true, let us now apply the ‘similarly circumstanced”’ test with respect to the fol- lowing three pairings of young males and females. 1. Responsible males and responsible females. This cate- gory includes, as stated, 98% of the males and some 99% of the females. If the for the discrimination is declared to be to bar irresponsible young adults from 3.2% beer, then the responsible males and the responsible females are clearly “‘similarly circumstanced” with re- spect to that objective, since, by definition, the individ- ual members of both sexes in this category are re- — whereas the discrimination is declared to be a means of getting at only the irresponsible adults. Since, however, the discrimination treats dissimilarly males and females who obviously are similarly circum- stanced with to the asserted purpose for the with respect to the males in this ‘‘responsible’’ category. 2. Irresponsible males and irresponsible females. This category comprises at best but a tiny minority of either sex, but the State maintains that these minuscule minor- —_— SEE ities do exist. If, then, the p for the discrimination is again declared to be to bar irresponsible young adults from 3.2% beer, then the irresponsible males and the irresponsible females too are clearly “‘similarly circum- stanced”’ with respect to that objective, since, by defini- tion, both sexes in this category are irresponsible, and the discrimination is declared to be a means at getting at such irresponsible young adults. But again, however, the discrimination treats dissimilarly males and females who obviously are similarly circumstanced with respect to the asserted purpose for the discrimination. The dis- crimination is for this category “‘irrational’”’ also. 3. Responsible males and irresponsible females. This pairing presents the ultimate absurdity. If we indulge the fiction that the purpose of the statute is a round- about way of saying irresponsible young adults should not have access to 3.2% beer, then the responsible males and irresponsible females herein are not ‘‘similarly situ- ated’’ all right. But the statute in this circumstance yields a result just exactly the opposite to the statute's asserted purpose. It is difficult to conceive of a situation more clearly demonstrative of any statute's irrationality. Next let us consider whether the statute is even effective in relationship to its intended (or asserted) purpose, for if the statute is not serving any useful function other than to insult Oklahoma's young man- hood, its continued existence becomes irrational as a matter of law. Assuming once again the asserted syllogism that the statute is not directed at males qua males, but at youthful alcoholic irresponsibility, and that legislating against males is just a ‘‘paraphrase’’ for legislating against this target irresponsibility, assuming all that, does this statutory scheme even so much as pretend to accomplish —~ = its asserted goal? Absolutely not. The statutes, taken together (generally, 37 Okla.Stat., Ch. 2), do not prohibit the young man from acquiring or possessing 3.2% beer, or for that matter even consuming it. Indeed, by the very wording of Section 241 parents may furnish it to their young adult sons absolutely without restriction as to amount, time, or place.'* In fact, the only expressly stated prohibition in the statutes is limited solely to sales by licensed vendors. 37 O.S. 1971, Sec. 163.11(3), 217, 242, and 244. There is therefore absolutely no sanction imposed against, say, the young man’s older brother, younger sister, or anyone else (than a licensed vendor) furnishing him his beer in whatever amounts he may desire. In the campus con- text of the instant case, all our instant young Appellant needs to legally consume 3.2% in unlimited quantities is his girlfriend (to run in and get it for him)!'5 '*Which might raise an Equal Protection problem in itself, between young adult men having “strict” parents versus those with “indul- gent” parents; is there some theory for thinking that sons of “indulgent” parents are more trustworthy with 3.2% beer than sons of “strict” ones? 'SThis very fact has led to some satirical comment that the dis- crimination in question derives its continued vitality not so much from a Fundamentalist as from a matriarchist conspiracy: com- prised of middle-aged mothers with an overabundance of comely daughters of the nubile ages who would have but scanty prospects for “dates” without do dentatnstion in question, yo whose prospects therefor are being materially enhanced by their legal monopoly amongst 18-21 year olds for the purchase of beer, and because of which statutorily-vested monopoly the thirsty young men of the same age group have no choice but to invite said comely girls out, so that they (the girls) can inter alia purchase the very beer which will in tur further materially enhance their mating prospects. Thus, the statutory discrimination at bar, while a humiliating annoyance, actually achieves nothing more than requiring the young man to accomplish his beer- buying in two steps (ie., by using an intermediary), whereas the young woman is permitted to accomplish hers in one (herself). As the State’s own data herein might tend to suggest, this insulting but insubstantial alternative “‘pathway’’ to be traversed by the young man in his quest for his 3.2% beer does not appear to be enjoying any conspicuous degree of success towards its asserted goal of cutting down on youthful alcoholism, male or female. It i: in actual fact totally ineffective for any purpose, other than, of course, to stigmatize the young male with the State’s “badge of inferiority,’ cf. Jones vy. Alfred H. Mayer Co. (1968) 392 U.S. 409, 439, 431, and Brown v. Board of Education (1954) 347 US. 483, 494. The discrimination is therefore irrational in all senses, the traditional included, as it bears absolutely no true relationship towards its asserted goal. PROPOSITION IV THE JURIDICAL EQUALITY OF MALE AND FEMALE AMERICAN CITIZENS IS A POSITIVE RULE OF LAW; THE DISTRICT COURT THERE- FORE ERRED IN EVEN ENTERTAINING THE STATE'S OFFER TO “DISPROVE” THIS JURI- DICAL EQUALITY AS THOUGH IT WERE A MERE QUESTION OF FACT SUBJECT TO AN ‘EVI- DENTIARY” ATTACK. In the final analysis, law in any enlightened society must reflect truth. But in this imperfect world or ours, truth can never hope to be anything better than what _y is perceived as truth, and in a democracy, the judiciary itself will ultimately reflect society's perception of truth. Therefore, as society's perceptions of truth evolve, so do the judiciary’s, and the law pronounced thereby. Decisions by this Honorable Court illustrate this evolution of law through changing social perceptions of truth. Taking race as an example, in an age when society believed that the aborigines of Africa were members of an inferior race, this Court rendered Dred Scott v. Sandford (1856) 19 How. 393, 407. Half a century later, the begrudging attitude that Negroes were educable, but only minimally, was reflected in Plessy v. Ferguson (1896) 163 U.S. 537; but as the Twentieth Century progressed in America, Nation and Court alike began to hold grave doubts as to the outlook of previous generations, as per Shelley v. Kraemer (1948) 334 U.S. 1. Finally, enlightened perception of the essential equality-in-fact of all Hu- manity s races was acknowledged by this Court in Brown v. Board of Education (1954) 347 U.S. 483, and within a decade therefrom this ultimate broadening in society's viewpoint had been transformed from a perception of fact to a positive rule of law, such that “‘evidentiary’’ attempts to ‘disprove’ same were no longer even main- tainable in the Federal Courts, as exemplified by the eventual outcome to the Stell v. Savannah-Chatham \ci- gation, discussed ante, pp. 18-19, cf. Loving v. Virginia (1967) 388 U.S. 1, 8. So generally with the sexual equality question too. In an age when muscle was the measure of a man, this Honorable Court reflected what society thought it ‘‘knew™’ about the ‘other’ sex’s ‘‘weaknesses,’’ Bradwell v. Illinois (1873) 16 Wall 130, Cronin v. Adams (1904) 192 U.S. 108, and so long as even enlightened opinion retained that view, so did the Court, Muller v. Oregon = (1908) 208 U.S. 412. Then, with the ratification of the Nineteenth Amendment (itself reflecting a change in society's perception of factual truth) came a period of uncertainty and vacillation; contrast Adkins v. Children’s Hospital (1923) 261 U.S. 525, 552-3, with the ever- embarrassing Goesaert v. Cleary (1948) 335 U.S. 464. The present era was ushered in by Reed v. Reed (1971) 404 US. 71, which was cautious in tone, an- nounced no really new constitutional doctrine, listened to much evidence, but still made no express proclama- tion of fact. Since Reed, of course, both this Court and virtually all lower ones have grappled with numerous sexual inequalities in a variety of circumstances. The experience of the past half-decade, both in and out of court, teaches us that the sexes can be and indeed are vastly more equal in their innate capabilities than had previously been supposed, and as we have become more familiar with this area and seen how various equalizing statutes and decisions have worked out quite well in actual practice without the chaos that might have been feared, our suspicions of fact as to the essential equality of the sexes have been reflected legally as a presumption that the “typical” sexual discrimination is unjustified. A suspected equality-in-fact, but as yet one hereto- fore unstated judicially. Perhaps “‘suspected’’ is already obsolete; “‘believed’’ would be a more accurate con- temporary term, a belief growing into a faith of what the actual truth will eventually be perceived to be. But until judicially acknowledged, that undeniable equality- in-fact in the sexual context is not the positive rule of law it is in the racial. The instant case, however, can serve to accomplish that transformation from fact to law quite well, for several reasons. One is, that there is a competent record — oe herein, fully reciting the unanimous opinion of modern science as to the equality-in-fact between the sexes. Second, this case poses a discrimination squarely in terms of the “‘inferiority’’ of the unfavored sex, unlike some other cases (e.g., Lt. Frontiero’s difficulty in getting the allowance she sought was not because of any senti- ment that female officers are less capable in their jobs than males). But this case calls forth for the transformation from fact to law for a third, more compelling reason: the utter failure of the State to establish a true or innate dif- ferential between the sexes. To understand the signifi- cance of this, let us recall, as stated, that this discrimi- nation squarely erects a presumption of inferiority. But this case has also been pending for over three, long years, in the Frontiero - Reed ““handwriting-on-the-wall”’ era, within a Circuit that had already voided Oklahoma's criminal age-sex discrimination (Lamb v. Brown, 456 F.2d 18); and the State has made the “evidentiary” effort as a desperate means for avoiding the mandate in Stanton no doubt because the subject-matter of the discrimination at bar, beer, is an item uniquely calculated to evoke any State Attorney General's most vigorous efforts! Despite all the warnings, however, the lengthy pen- dency of this case, and the obvious motivation incum- bent upon the State to save this discrimination if no other, the State, as we have seen, has done no more than to put on a case which it confessed would be insufficient to salvage an age-racial discrimination! App., 97-98. The scientific portion of the State’s case is conspicuous by its absence.'® Hence, the “‘statistics,"’ which as the ‘Ironically, the Plaintiffs’ Exhibit 2, App., 151-177, which ex- perimentally refutes any male “inferiority” regarding alcohol, was produced at the State’s own Oklahoma University Medical School. — 50 — State itself surely realizes have wholly failed to indicate the critical inferiority. Let's face facts. If after all this time, warning, effort and motivation the State’s sexual supremacists have been unable to make a case for sexual inequality-in-fact, that can only mean that the case for it just doesn't exist — and never did. Since ‘‘scientific sexism’ has now had its day in court herein, and has been found lacking, and since no other litigants have come to this Court in the years since Reed and Frontiero with any other such attempt, we should without further delay forthrightly accept our perceived truth as established, and close out this era just preceding with the proclamation that sex equality having now become a positive rule of law, further burdenings of the Courts with “evidence to ‘prove’ the contrary will no longer be necessary (i.e., allowed). Recall again the ultimate outcome of the Stell v. Savannah-Chatham litigation, discussed earlier herein. Surely any doubt as to the wisdom of elevating sex- equality from the factual to the juridical can be resolved upon consideration of the spectre of repeated Propo- sitions II” becoming standard features in sex-equality litigation coming before this Court. In fact, to make the long-overdue announcement of sexual equality-in- fact’s having attained ‘‘positive-rule-of-law ” status might considerably ease the Court's sex discrimination caseload in general. To quote the late Senator Dirksen, “‘It is an idea whose time has come.” While no rational man doubts the essential truth- fulness of sexual equality-in-fact any more, neither can he be totally blind to the fact that there are organic differences between the sexes that have no analogy be- tween the races. These may be fewer than previously —eeCSs—=E LL — jj. Q__—_— thought, and lesser in intensity, but they are evidently just enough to hinder sexual discriminations from be- coming totally analogous to racial ones. Hence, sex is as yet still not quite as ‘‘suspect’’ as is race. Counsel would be less than candid to urge that this case is the one to force resolution of ‘‘suspectness.”’ This discrimination is clearly void under whatever test we might apply, suspect, rational, or anything in be- tween. But consider anyway: if race is suspect, and the only reason sex is not i: because of the organic dif- ferences between the sexes that have no analogy be- tween the races, then almost as by definition sexual discriminations between the sexes not founded on organic differences, such as the case at bar, may safely be termed suspect. Surely the time has come when sexual discrimi- nations, such as ours, bearing no conceivable relationship to any differences between the sexes, and especially those framed squarely as “‘badges of inferiority,’ again like that at bar, should be decreed suspect with all available speed and minimum of deliberation. Indeed, not only would the ends of substantive justice be fur- thered thereby, such a suspect designation for these sex- ual discriminations would then leave the Courts consid- erably more time to ponder the truly troublesome ones. Certainly there is no need for relatively minor discrimi- nations (to some extent like ours) dragging out for over three years up and down the ladder and around, when just one word would clear the air. Recall how the man- date in Stanton seems not to have gotten understood in this case! So pray, let us hear it. No Bicentennial Brief is complete without its men- tion of Equality, and perhaps that’s where we should have started all this. It seems so simple that even a — 52 — school-boy can understand it. “The pledge of the pro- tection of equal laws.” Yick Wo v. Hopkins (1886) 118 U.S. at 369. What's fair for one is fair for all. What's sauce for the gander, etc. Does Equality mean Equality, or does it mean double-talk for something else? What- ever the Appellant Craig has gotten in this case, he has not gotten Equality! So back, for a moment, to the Dec- laration of Independence’s Equality, bypassing the Four- teenth Amendment's for a moment. The Equality of the Founding Fathers was not posited on any assumed equality-in-fact between all individual citizens; it was the expression of a political equality of men before the law they themselves would make. That some might be wise, or some foolish, or some sober and others drunken, was (and is) immaterial; all were to derive the same benefit from their new creature, the American government. To tie juridical equality to individual merit would render equality absolutely unworkable, and surely we will not maintain that the Second Continental Congress could have been blind to such a truth. So if American political and legal equality applies despite individual inequalities- in-fact, there is absolutely no basis for denying it because of collective inequalities-in-fact either. Yet that is precise- ly what happened below. Given the District Court's reasoning, and the fact that males over 21 seem to have had a slight alcohol problem also, would the District Court have been just as willing to uphold a statute barring males from access to 3.2% beer to age 31, 51, or 101? Or barring males from access to alcohol altogether, all based on some minute collective inferiority-in-fact? It would seem Goesaert has come full cycle! Let us therefore conclude our inquiry into the question of the collective inequality-in-fact in the sex discrimination con- text with the following authority: . an individual female cannot constitution- ally be given more severe sentencing treatment for the same offense than that by law accorded males as a class on the basis of any character- istics thought or even proved to be applicable to females generally, or as to most of them. ‘I would therefore join in the decision of the court even if the record here justified the fact- ual conclusion that most female offenders, or female offenders generally, are better subjects for rehabilitation than males, or less recidivist, or that a longer period of detention would pro- mote the chances for rehabilitation of female offenders generally as opposed to male offend- ers generally.’ Conford, J., concurring specially in State v. Chambers (1973) 63 N.J. 287, 307 A.2d 78, at 85 (emphasis added). Appellants respectfully urge that the foregoing con- currence be adopted by the Highest Court in the Land as the correct expression of the law applicable to the alleged situation at bar. CONCLUSION The 18/21 discrimination at bar would clearly be void were it age-racial (e.g., allowing Caucasians to purchase 3.2% beer at 18 but Negroes not till 21), or age-religious (Protestants at 18 and Catholics at 21), age-political (Republicans vs. Democrats), age-right- handed/lefthanded, or age-whatever, and certainly no less so simply because of some slight percentage dif- ferential that will inevitably exist between any two groups. The instant age-sex discrimination, obviously, is equally void. ee WHEREFORE, premises considered, Appellants re- spectfully pray this Honorable Court to reverse the District Court’s decision that 37 Okla.Stat 241, 245 is constitutional, and to remand this Cause to the District Court with instructions to issue appropriate writs of injunction to enjoin any and all further and future efforts and attempts at enforcing the prohibition contained therein against the sale of 3.2% alcoholic beverages to male persons 18 to 21 years of age. Respectfully submitted, Aucd YU Mnf FRED P. GILBERT 1401 National Bank of Tulsa Bldg. Tulsa, Oklahoma Attorney for Appellants CERTIFICATE OF SERVICE I, Frederick P. Gilbert, a member of the Bar of this Honorable Court and counsel of record for the Appellants herein, do hereby certify that I served three copies of this Brief of Appellants upon counsel for all Appellees herein, to wit: upon the Hon. Larry Derryberry, Attorney General of the State of Oklahoma, by mailing the same to him at his office in the State Capitol Building, Oklahoma City, Oklahoma, Attn: Mr. James Gray, Assistant At- torney General, this 274. day of February, 1976, with first class postage thereon fully prepaid. All Parties required to be served have been served. Fredylbba+ FREDERICK P. GILBERT Attorney for Appellants --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1248%3A4. Public record. Not legal advice.