brief for appellee — Craig v. Boren

if Suyreme Court, U.S

FiLeaenm *

l

q MAY 1 1976

BCHAEL RODAK, JR. CLERK

In 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,

VERSUS

HONORABLE Davip Boren, Governor, State of Oklahoma,

HONORABLE LARRY DERRYBERRY, Attorney General, State

of Oklahoma, HonoraB_e D. M. Berry, Chairman, Hon-

ORABLE LAWTON L. LEININGER, Vice-Chairman, HONor-

ABLE J. L. MERRILL, Secretary-Member, Oklahoma Tax

Commission, HONORABLE Ray WALL, Presiding Judge,

Ninth Judicial District Court, State of Oklahoma, Hon-

ORABLE CHARLES H. HEApRICK, District Attorney, Ninth

Judicial District, State of Oklahoma, HONORABLE ROSE

Jarvis, District Court Clerk, Payne County, State of

Oklahoma, HONORABLE FRANK PHILLIPS, Sheriff, Payne

County, State of Oklahoma, and HONORABLE HILARY

Driccs, Chief of Police, Stillwater, Oklahoma,

Appellees.

BRIEF OF APPELLEES

LARRY DERRYBERRY

Attorney General of Ok!ahoma

JAMES H. GRAY

Assistant Attorney General

112 State Capitol Building

Oklahoma City, Oklahoma 73105

Attorneys for Appellees

April, 1976

OS eS ee

UTTERBACK TYPCSETTING CO 5i9 W. CaciF.. OKLAHOMA CiTY. PH. 235-0030

TABLE OF CONTENTS

PAGE

KE, 1

Proposition I: The trial court was correct in deter-

mining that the proper test or standard of review

was as set forth in Reed v. Reed, 404 U.S. 71

(1971) sistnbataeiiaatiastadeiia

Proposition II: The trial court was correct in de-

termining that the proof was sufficient to show a

rational basis for the legislative classification _... 18

Proposition III: The State of Oklahoma has the

right to show the rational basis for its legislation

without proving that such legislation was a per-

fect solution aaa - cma ee

Conclusion __.. | . » ie

Certificate of Service follows Brief.

INDEX TO CITATIONS

UNITED STATES CONSTITUTION:

Amendment XXI . anlisiaipsicmmniiniisaaaidaeeted 5

CONSTITUTION OF OKLAHOMA:

pe: ), saa hd-nealeseeadiienaietintieiiaae et ae

STATUTES OF OKLAHOMA:

IS NII csi: sxeesiniisscsicsasinccaldhadinidaadainiaeecesiasag aan

Supp. 1975, §$ 241 and 245 sp sceatieanibeessnaliatiidemasiiiaaae ae

CASES:

California v. LaRue, 409 U.S. 109 (1972) _....2, 13, 16, 25

Carter v. Commonwealth of Virginia, 321 U.S. 131

Chapman v. California, 386 U.S. 18 (1967) _...... —s-.29

=

AUTHORITIES CONTINUED PAGE

Crowley v. Christensen, 137 U.S. 86 (1890) ........ 6-7 In the

Douglas v. State, Okla., 225 P.2d 376 (1950) 27-28 | Supreme Court of the United States

Fahy v. Connecticut, 375 U.S. 85 (1963) 0000000. 29 Octoser TERM, 1975

Giozza v. Tierman, 148 U.S. 657 (1892) 000. Ss 7-8

Goesaert v. Cleary, 335 U.S. 464 (1948) 11-13 No. 75-628

Hayes v. Municipal Court, Okla., 478 P.2d 974(1971) 29

Kahn v. Shevin, 416 U.S. 351 (1974) 2, 24-25 Curtis Craic and CAROLYN WHITENER,

Krauss v. Sacramento Inn, 317 F.Supp. 171 (E.D.

d/b/a “The Honk and Holler,”

Cal. 1970) ; 3 13 Appellants,

Loper v. Beto, 405 U.S. 473 (1972) tet: 7 VERSUS

Mahoney v. Triner Corporation, 304 U.S. 401 (1998) 11 HonorABLE Davip Boren, Governor, State of Oklahoma,

Mugler v. Kansas, 123 U.S, 623 (1887) - 68 HoNoRABLE LARRY DerryBERRY, Attorney General, State

Papachristou vy. Jacksonville, 405 U.S. 156 (1972) .. 2, 30 of Oklahoma, HonoraB_e D. M. Berry, Chairman, Hon-

Parks v. Allen, 426 F.2d 610 (5th Cir., 1970) 14-16 ORABLE LAWTON L. LEININGER, Vice-Chairman, Honor-

Te 4 9 ABLE J. L. MERRILL, Secretary-Member, Oklahoma Tax

ee Ey SOP ey Pe Sees ) aceon Commission, HonoraBLte Ray WALL, Presiding Judge,

Schlesinger v. Ballard, 419 U.S. 498 (1975) —....... 4,17 Ninth Judicial District Court, State of Oklahoma, Hon-

Schware v. Board of Bar Examiners, 353 U.S. 232 ORABLE CHARLES H. Heaprick, District Attorney, Ninth

(3967)... nes seveessoneenssecewsensennne Judicial District, State of Oklahoma, HONORABLE ROSE

Seagram and Sons v. Hostetter, 384 U.S. 35 (1966) .2, Jarvis, District Court Clerk, Payne County, State of

10, 32 Oklahoma, HoNORABLE FRANK PHILLIPS, Sheriff, Payne

Stanton v. Stanton, 421 U.S, 7 (1975)... .......2, 4, 17, 33 County, State of Oklahoma, and HonorasLe HILARY

State Board of Equalization v. Youngs Market Com- Dricas, Chief of Police, Stillwater, Oklahoma,

pany, 299 U.S. 59 (1936) la Appellees.

State, ex rel. Springer v. Bliss, 199 Okla. 198, 185

P.2d 220 (1947) ' .~ 2

BRIEF OF APPELLEES

Viandis v. Kline, 412 U.S. 441 (1973) . o —_ 6 eee

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) 4,17

SUMMARY OF ARGUMENT

1. The trial court correctly applied the Reed v. Reed,

404 U.S. 71 (1971), test and found a rational basis based on

criteria related to the subject matter for the classification

found in 37 O.S. Supp. 1975, §§241 and 245.

a

2. The determination that the Oklahoma statutes at

issue are not unconstitutional is fully supported by the

presumption in favor of classifications rendered pursuant

to the 21st Amendment as evidenced by California v.

LaRue, 409 U.S. 109 (1972).

3. The decision of the trial court is not contrary to

Stanton v. Stanton, 421 U.S. 7 (1975), and other similar

decisions in that administrative inconvenience was not used

as a basis for denying any substantive or procedural righ..s,

neither were old and outdated archaic notions about differ-

ences between men and women indulged in.

4. The findings of fact supporting the rationality of

legisiation is fully supported by the evidence which is sim-

ilar in scope and purpose to the statistics used by this Court

in Kahn v. Shevin, 416 U.S. 351 (1974), and Papachristou v.

Jacksonville, 405 U.S. 156 (1972).

5. The state’s purpose in seeking to protect the per-

sons affected and the public from the slaughter and prop-

erty damage on the highways is a legitimate legislative goal

and whether the legislation in question was the perfect

or complete solution or not to this problem is not in issue.

Seagram and Sons v. Hostetter, 384 U.S. 35, 50-51 (1966).

=

PROPOSITION I

THE TRIAL COURT WAS CORRECT IN DETERMINING

THAT THE PROPER TEST OR STANDARD OF REVIEW

WAS AS SET FORTH IN REED vy. REED, 404 U.S. 71 (1971).

At the outset appellees would suggest to the Court

that the trial court’s judgment was basically in two parts:

(1) the determination of the legal standard against which

the Oklahoma statutes were to be compared, and (2) a

review of the evidence to determine if the standard had

been met.

The first part of this judgment is perhaps the most

critical in that if this Court determines that some different

standard should have been applied then appellees would

request that this case be remanded at that point to give the

appellees opportunity to present evidence under any such

new standard.

Appeliees, however, do not urge that the standard

adopted by the trial court was in error, but quite the con-

trary, appellees urge that the test as enunciated in Reed v.

Reed, supra, was the proper standard to apply. That portion

of Reed v. Reed, supra, which the trial court determined

set forth the standard to ke applied is found at pages A6-A7

of the Jurisdictional Statement, 399 F.Supp., at 1308, which

is reprinted here for convenience:

“We feel that Reed v. Reed, 404 U.S. 71, provides

the applicable test here. In Reed the Court stated, 404

U.S. at 75-76:

‘In such situations, $15-314 provides that different

treatment be accorded to the applicants on the basis

of their sex; it thus establishes a classification sub-

ject to scrutiny under the Equal Protection Clause.

— a

‘In applying that clause, this Court has consis-

tently recognized that the Fourteenth Amendment

does not deny to States the power to treat different

classes of persons in different ways. (citations omit-

ted) The Equal Protection Clause of that amend-

ment does, however, deny to States the power to

legislate that different treatment be accorded to

persons placed by a statute into different classes on

the basis of criteria wholly unrelated to the objective

of that statute. A classification “must be reasonable,

not arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to

the object of the legis!ation, so that all persons simi-

larly circumstanced shall be treated alike.” Royster

Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).’”

The trial court was certainly not unaware of this

Court’s recent decisions of Stanton vy. Stanton, 421 U.S. 7

(1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), and

Schlesinger v. Ballard, 419 U.S. 498 (1975), but considered

these decisions carefully and correctly noted that no new

test was set out in these opinions and that no determination

of “inherently suspect” classification was tagged onto sex-

based classifications which then might have required a

compelling state interest to be shown.

Without jumping ahead into Proposition II appellees

would at this point direct the Court’s attention to the legal

conclusions which the trial court reached after having ap-

plied the evidence to the Reed test. These legal conclusions

are found on pages A4-A5 of the Jurisdictional Statement,

399 F.Supp., at 1307, and are reprinted here for con-

venience:

—

“We uphold the Oklahoma statutes in question for

three main reasons: (1) in this case, unlike some

others in which the Supreme Court and other courts

have invalidated sex-based classifications, proof was

made in which we find a rational basis for the legisla-

tive judgment underlying the challenged classification;

(2) the classification here is directly related to appar-

ent legislative objectives, looking to protection of the

persons affected and the public; and (3) the statutes

in question concern the regulation of alcoholic bev-

erages—an area where the States’ police powers are

strengthened by the Twenty-first Amendment.”

Although appellees certainly agree with the trial court

determinations set forth above, appellees would assert that

the trial court minimized the effect of the Twenty-first

Amendment on the classification at issue. That Amendment

states in Section 2 as follows:

“The transportation or importation into any state,

territory or possession of the United States for use

therein of intoxicating liquors, in violation of the laws

thereof, is hereby prohibited.”

Previous decisions of this Court would indicate that

regulations to control intoxicating beverages made pur-

suant to a state’s police powers and later more specifically

under the Twenty-first Amendment are entitled to great

weight indeed.

The various states have traditionaliy had the power to

regulate intoxicants by virtue of their Tenth Amendment

police powers, and more recently, the Twenty-first Amend-

ment to the United States Constitution. The unique nature

of the regulation of intoxicants is clearly indicated by the

existence of a separate constitutional amendment dealing

—6—

specifically with that commodity. However, apart from the

Twenty-first Amendment adopted in 1933, the Supreme

Court at an early date recognized the unique nature of the

regulation of intoxicants and the non-existence of any legal

right to trade in them. In Crowley v. Christensen, 137 U.S.

86 (1890), the Court reviewed the conviction of the peti-

tioner who had been convicted of selling liquor without a

license. The petitioner challenged his conviction on the

basis that the discretionary power in granting and with-

holding of the license by the Board of Police Commissioners

was a violation of the Equal Protection Clause. In denying

the claim the Court stated:

“By the general concurrence of opinion of every

civilized and christian community, there are few

sources of crime and misery to society equal to the

dram shop, where intoxicating liquors, in small quan-

tities, to ke drunk at the time, are sold indiscriminately

to all parties applying. The statistics of every state

show a greater amount of crime and misery attrib-

utable to the use of ardent spirits obtained at these

retail liquor saloons than to any other source. The sale

of such liquors in this way has therefore been, at all

times, by the courts of every state, considered as the

proper subject of leg'slative regulation. Not only may

a license be extracted from the keeper of the saloon

before a glass of his liquors can be thus disposed of,

but restrictions may be imposed as to the class of per-

sons to whom they may be sold, and the hours of the

day and the days of the week on which the saloons

may be open. Their sale in that form may be absolutely

prohibited. It is a question of public expediency and

public morality and not of federal law. The police

power of the state is fully competent to regulate the

business—to mitigate its evils or to suppress it en-

tirely. There is no inherent right in a citizen to thus

‘

lo

sell intoxicating liquor by retail; it is not a privilege

of a citizen of the state or of a citizen of the United

States. As it is a business attended with danger to the

community it may, as already said, be entirely pro-

hibited, or be permitted under such conditions as will

limit to the utmost its evils. The manner and extent of

regulation rests in the discretion of the governing au-

thority . . . As in many other cases, the officers may

not always exercise the power conferred upon them

with the wisdom or justice to the parties affected. But

that is a matter which does not affect the authority of

the state; nor is it one which can be brought under

the cognizance of the courts of the United States.”

(Emphasis added.)

Similarly in Giozza v. Tierman, 148 U.S. 657 (1892),

the petitioner was convicted by the state courts for the sale

of liquor without a license. The challenged Texas law pro-

vided that applicants for a liquor license would post a five

hundred dollar penal bond to be forfeited if the licensee

sold liquor to certain prohibited persons. The petitioner

contended that the imposed conditions operated to deny

him the equal protection of the law. In denying the claim

presented and affirming the conviction, the Court stated:

“Irrespective of the operation of the Federal Con-

stitution and restrictions asserted to be inherent in the

nature of American institutions, the general rule is

that there are no limitations upon the legislative power

of the Legislature of a state, except those imposed by

its written constitution. There is nothing in the Con-

stitution of Texas restricting the power of the Legisla-

ture in reference to the sale of liquor, and it is well

settled that the Legislature of that state has the power

to regulate the mode and manner and the circum-

stances under which the liquor traffic may be con-

ducted, and to surround the right to pursue it with

cullen

such conditions, restrictions and limitations as the

Legislature may deem proper... .

“The privileges and immunities of citizens of the

United States are privileges and immunities arising

out of the nature and essential character of the national

government, and granted or secured by the Constitu-

tion of the United States, and the right to sell intoxi-

cating liquors is not one of the rights growing out of

such citizenship. Bartmeyer v. Iowa, 18 Wall. 129.

“The amendment does not take from the states those

powers of police that were reserved at the time the

original constitution was adopted. Undoubtedly it for-

bids any arbitrary deprivation of life, liberty or prop-

erty, and secures equal protection to all under like

circumstances and the enjoyment of their rights; but

it was not designed to interfere with the power of the

state to protect the lives, liberty and property of its

citizens, and to promote their health, morals, educa-

tion and good order. Barbier v. Connolly, 113 U.S. 27,

31; In re Kemmler, 136 U.S. 436.”

A state’s power to completely prohibit the trade in

intoxicants has been held to be a matter which is no longer

open to question by the courts, and no longer presenting a

substantial federal question. See Mugler v. Kansas, 123

U.S. 623, 659 (1887). The Court in Mugler, supra, in addi-

tion, commented as follows on the power of the state in

regulating intoxicants:

“. . . By whom, or by what authority, is it to be

determined whether the manufacturer of particular

articles of drink, either for general use or for the per-

sonal use of the maker, will injuriously affect the pub-

lic . . . Under our system of government that power

is lodged with the legislative branch of the govern-

ment. It belongs to that department to exert what are

~~

known as the police powers of the state, and to deter-

mine, primarily, what measures are appropriate or

needful for the protection of the public morals, the

public health, or the public safety . . . Every possible

presumption is to be indulged in im favor of the valid-

ity of a statue... If, in the judgment of the legislature,

the manufacturer of intoxicating liquor for the

maker’s own use, as a beverage, would tend to cripple,

if it did not defeat, the effort to guard the community

against the evils attending the excessive use of such

liquors, it is not for the courts, upon their views as to

what is best and safest for the community, to disregard

the legislative determination of that question . . . Nei-

ther the amendment (Fourteenth) broad and compre-

hensive as it is—nor any other amendment, was

designed to interfere with the power of the state,

sometimes termed its police power, to prescribe regu-

lations to promote the health, peace, morals, education

and good order of the people... .”

The 18 through 20 year old males in the State of

Oklahoma have teen denied no constitutionally funda-

mental right, since any right to purchase beer does not

exist and is not recognized by the courts. Furthermore, it

was the prerogative of the Legislature to prescribe the

regulations which they deemed most able to protect the

people of the State of Oklahoma from any harm arising

from the sale or use of intoxicants. That prerogative should

be disturbed only upon the clearest showing of constitu-

tional insufficiency. The appellees urge that the regulation

of intoxicants is a matter of speciai legislative concern,

and that except for the gravest constitutional insuffi-

ciencies, the Legislature’s judgment on how to effectively

regulate and control intoxicants should be upheld.

aiiiun

In Seagram & Sons v. Hostetter, 384 U.S. 35 (1966),

the Court considered New York’s law which regulated the

price of liquor in the context of alleged violations of the

Equal Protection and Due Process Clauses. In upholding

the validity of the law and denying the injunctive and

declaratory relief sought, the Court stated:

“A statute is not invalid under the Constitution

tecause it might have gone farther than it did, or

because it may not succeed in bringing about the re-

sult that it tends to produce . .. The reform may take

one step at a time, addressing itself to the phase of

the problem which seems most acute in the legislative

mind.”

In subsequently construing the powers of the various states

by virtue of the Twenty-first Amendment, the United

States Supreme Court has consistently upheld the states’

broad powers in the area of the regulation of intoxicants.

There can be no doubt but that the Oklahoma laws chal-

lenged herein regulate the sale and use of intoxicants

within the territorial limits of the State of Oklahoma.

Therefore, an examination of the relationship between the

Twenty-first and the Fourteenth Amendment Equal Pro-

tection Clause would be relevant. In one of the early

significant cases following the adoption of the Twenty-first

Amendment, the Court in State Board of Equalization v.

Youngs Market Company, 299 U.S. 59 (1936), ruled on a

challenge to California’s reguiation which required an im-

porter’s license as being violative of the Equal Protection

Clause. In upholding the validity of the State’s classifica-

tion the Court stated:

“The claim that the statutory provisions and the

regulations are void under the Equal Protection Clause

iin

may be briefly disposed of. A classification recognized

by the Twenty-first Amendment cannot be deemed

forbidden by the Fourteenth.”

Later in Mahoney v. Triner Corporation, 304 U.S. 401

(1938), the Court again upheld the validity of a state’s

regulation of intoxicants, despite alleged violations of the

Equal Protection Clause:

“The sole contention of Joseph Triner Corporation

is that the statute violated the Equal Protection

Clause. The state officials insist that the provision of

the statute is a reasonable regulation of the liquor

traffic; and also, that since the adoption of the Twenty-

first Amendment, the Equal Protection Clause is not

applicable to imported intoxicating liquor... .

“We are asked to limit the power conferred by the

| Twenty-first] amendment so that only those importa-

tions may be forbidden which, in the opinion of the

court, violate a reasonable regulation of the liquor

traffic. To do would, as stated in the Youngs Market

case, p. 62, ‘involve not a construction of the amend-

ment, but a rewriting of it.’”

See also Carter v. Commonwealth of Virginia, 321 U.S.

131, 142 (1944), in which the Court again rejected conten-

tions that a state’s regulation of intoxicating liquor must

ke a reascnable one. The Court approved its prior language

in Triner, supra, to the cffect that if the Court struck down

those regulations of intoxicants which it telt unreasonable,

then it would be in effect rewriting, and not construing a

state’s power pursuant to the Twenty-first Amendment.

In Goesaert v. Cleary, 335 U.S. 464 (1948), the Court

reviewed the validity of a Michigan statute which pro-

hibited women, other than the wives and daughters of

— =

owners, from being licensed as bartenders, as an alleged

violation of the Equal Protection Clause. It is readily ap-

pare. t that the Michigan statuie construed in Goesaert,

supra, involved a classification based on sex, analogous at

least to the classification prescribed by the Oklahoma Leg-

islature in the case at bar. The Supreme Court in Goesae’t,

supra, upheld the validity of the law as not being violative

of the Equal Protection Clause. The Court stated beginning

at page 465:

“Beguiling as the subject is, it need not detain us

long. To ask whether or not the Equal Protection of

the Laws Clause of the Fourteenth Amendment barred

Michigan from making the classification the State has

made between wives and daughters of owners of

liquor places and wives and daughters of non-owners,

is one of those rare instances where to state the ques-

tion is in effect to answer it... .

“The Fourteenth Amendment did not tear history

up by the roots, and the regulation of the liquor traf-

fic is one of the oldest and most untrammeled of legis-

lative powers. Michigan could, beyond question, forbid

all women from working behind a bar. This is so

despite the vast changes in the social and legal position

of women. The fact that women may now have

achieved the virtues that men have long claimed as

their prerogatives and now indulge in vices that men

have long practiced, does not preclude the states from

drawing a sharp line between the sexes, certainly in

such matters #s the regulation of the liquor traffic. See

the Twenty-first Amendment and Carter v. Virginia,

321 U.S. 131, 88 L. Ed. 605, 64 S. Ct. 464. The Constitu-

tion does not require legislatures to reflect sociological

insight, or shifting social standards, any more than it

requires them to keep abreast of the latest scientific

standards.

—_

“While Michigan may deny to all women oppor-

tunities for bartending, Michigan cannot play favorites

among women without rhyme or reason. The Constitu-

tion in enjoining the equai protection of the laws upon

states precludes irrational discrimination as between

persons or groups of persons in the incidence of a law.

But the Constitution does not require situations ‘which

are different in fact or opinion to be treated in law as

though they were the same.’ Tigner v. Texas, 310 U.S.

141, 147, 84 L. Ed. 1124, 1128, 66 &. Ct. 879, 130 A.L.R.

1321. Since bartending by women may, in the allow-

able legislative judgment, give rise te moral and social

problems against which it may devise preventive

measures, the legislature need not go to the full length

of prohibition if it believes that as to a defined group

of females other factors are operating which either

eliminate or reduce the moral and social problems

otherwise caliing for prohibition. .. .

“We cannot cross-examine either actually or argu-

mentatively the mind of Michigan legislators nor

question their motives. Since the line they have drawn

is not without a basis in reason, we cannot give ear to

the suggestion that the real impulse behind this legis-

lation was an unchivalrous desire of male bartenders

to try to monopolize the calling.” (Emphasis added.)

See also Krauss v. Sacramento Inn, 317 F.Supp. 171

(E.D. Cal. 1970).

Most recently in California v. LaRue, 409 U.S. 109

(1972), the United States Supreme Court reaffirmed the

plenary power of the states to regulate intoxicants and

establishments where they are served. In LaRue, supra, the

Court upheld California’s power to prohibit explicitly live

sexual entertainment in bars where liquor was dispensed

by the drink. After noting that the Twenty-first Amend-

ment “has been recognized as conferring something more

—

than the normal state authority over public health, welfare

and morals,” the Court went on to note in the last sentence

of its opinion that there is a “presumption in favor of the

validity of the state regulation in this area which the

Twenty-first Amendment requires. .. .” The appellees re-

spectfully urge that the challenged state law is authorized

by and within the scope of the Twenty-first Amendment

to the United States Constitution, as it regulates the sale

and use of intoxicants within the State of Oklahoma. Since

the sa-e-challenged state reguiation deals with the regula-

tion of intoxicants, the State has a great extraordinary

interest in regulations obviously enacted for the ultimate

welfare and safety of its citizens; that it, the State’s regu-

lation in the case at bar, is in an area over which the

State has something more than the normal state authority

over public health, welfare and morals. It would, indeed,

be erroneous to state that a regulation of intoxicants was

completely isolated from the Equal Protection and Due

Process Clauses. However, the appellees urge that Okla-

homa’s interest in regulating intoxicants is extraordinary,

and should be held to meet only the barest minimum re-

quirements of cqual protection.

Thus, in Parks y. Allen, 426 F.2d 610, 613 (5th Cir.,

1970), the Court reviewed alleged violations of the Equal

Protection Clause by an ordinance which prohibited the

issuance Of more than two retail liquor licenses to a family.

It was alleged that persons were penalized by reason of

their birth in not being able to obtain a license if members

of the family had more than the prescribed number of

licenses. In denying the injunction, the Court stated as

follows:

—)]5-—

“It is firmly established that the state through the

21st Amendment has a broad right to regulate traffic

in intoxicating liquors in the valid exercise of its

police power. Crowley v. Christensen, 137 U.S. 86, 11

S. Ct. 13, 34 L. Ed. 620 (1890); Joseph E. Seagram &

Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S. Ct. 1254

(1966); Hornsby v. Allen, 326 F.2d 605 (1964). More-

over, the Fourteenth Amendment admits of the exer-

cise of a wide scope of discretion in this regard. It only

prohibits what is done when it is without any reason-

able basis and therefore is purely arbitrary. E.G.,

Block v. Hirsh, 256 U.S. 135, 41 S. Ct. 458, 65 L. Ed. 865

(1920); Mestre v. City of Atlanta, 255 F.2d 401 (5th

Cir. 1958). Moreover, the exercise of the power in con-

nection with the liquor industry particularly allows

the widest discretion and is subject to minimal de-

mands of the Fourteenth Amendment's due process and

equal protection requirements. See United States v.

Frankfort Distillers, 324 U.S. 293 at 299(5), 65 S. Ct.

661, 89 L. Ed. 951 (1945): Atlanta Bowling Center, Inc.

v. Allen, 389 F.2d 713 (5th Cir. 1968); Lewis v. City of

Grand Rapids, 356 F.2d 276 (6th Cir. 1966).

“Thus there is a rebuttable presumption of the pro-

~riety of the ordinances under attack and, only upon

a clear showing that they are «arbitrary, should the

court substitute its judgment for that of the legislative

body concerned. In such respect, legis!ative bodies are

free to act on the basis of such intangibles as public

opinion, hearsay, rumor and an original self-deter-

mnation of proper policy and, unlike courts, are not

limited to admissible testimony or a preponderance of

the evidence or other judicial standards. Accordingly,

the courts ought to be loath to interfere. If the ordi-

nance under attack is arguably reasonable, it should

be sustained. ...

“| [T)he plaintiff contends that the ordinances

per se are unconstitutional in that they penalize him

—

unjustly. Thus, ‘the condition of a man’s birth or a

matter over which he has no control cannot be made

the basis of a rule restricting him from a license unless

his condition is something that would make him unfit.’

This claim that the ordinances are facially unconsti-

tutional is likewise rejected. The argument presup-

poses that the sale of liquor is a right, rather than a

privilege. And the test is the reasonableness of the

ordinance as relates to the business licensed and not

the reasonableness as it relates to a particular appli-

cant. As seen, the ordinance is reasonably related to

the control of abuses in the industry and plaintiff is

on prior notice of its requirements. The mere fact that

he does not qualify by virtue of birth is no bar, even

though it might create a personal hardship. Circum-

stances of birth may preclude a person from holding

certain jobs under the laws against nepotism. E.G. 18

U.S.C.A. $1910. Or from holding public office, even

that of President.” (Emphasis added. )

While appellees do not suggest that the Twenty-first

Amendment stands alone and unfettered by other pro-

visions of the Constitution, we do suggest that a presump-

tion of validity in this narrow area is indicated and that

the trial court should have thus considered the classifica-

tion, together with the evidence and, if it had done so, no

doubt whatever of the validity of these statutes would have

remained. Thus, in California v. LaRue, supra, a regulation

of intoxicating beverages was upheld even though First

Amendment rights were threatened. In the case at bar, no

such constitutional rights are even suggested to be in-

fringed.

One further comment in regard to the trial court’s

conclusions must be made. The trial court might have

found specifically that administrative convenience was not

the basis of this classification. The record amply supports

this statement. More recent cases of Stanton, Weinberger

and Schlesinger struck down sex-based classifications

which were primarily based on such a premise, as indeed

was done in Reed v. Reed, supra. In the case at bar, the

trial court did correctly determine that the classification

was for the protection of the persons affected and the pub-

lic. While appellants suggest that the appellees could test

each person individually for blood alcohol content, such a

suggestion is absurd on its face. The point being that any

such administrative inconvenience was not the basis or

foundation for the classification, rather the very lives and

property of the persons affected and the public was in-

volved and was the primary objective of the Legislature.

In summary, the public health and welfare, which is sought

to be protected by the statutes, is much more concrete and

real than the “other” reasons given to this Court to sus-

tain the sex-based classifications in Stanton, Weinberger,

Schlesinger, and Reed cases. This Court wisely looked

beyond these “other” reasons and found that the founda-

tion for such classification insufficient. Appellees assert

that the record in this case amply supports the trial court’s

conclusions in upholding the Oklahoma statutes.

—18—

PROPOSITION II

THE TRIAL COURT WAS CORRECT IN DETERMINING

THAT THE PROOF WAS SUFFICIENT TO SHOW A RA-

TIONAL BASIS FOR THE LEGISLATIVE CLASSIFICATION.

Both the appellants and amicus curiae have gone to

great length to find fault with the evidence submitted to

the trial court by the appellees. In responding to these

objections it is appropriate to review the Findings of Fact

by the trial court after it had examined all of the evidence

submitted in the case. The trial court’s findings were spe-

cific and to the point as quoted below from Jurisdictional

Statement, page Al4, 399 F.Supp., at 1311:

“With this in mind, we find in the record sufficient

support of the rationality of the limited sex-based

classification in question under the Reed test. We find

each support in the record data indicating more likely

consumption of beer by males in the 18-20 age group;

more driving in this age group by males with signifi-

cant BAC levels than by females; the greater number

of vehicle injuries in the younger male group; and the

apparent relationship of such injuries to alcohol use.

We conclude that the classification made has a fair and

substantial relation to apparent objectives of the legis-

lation for the protection of those affected and the

public generally.” (Footnotes omitted. )

Appellees urge that the evidence was more than ample

to support these findings. Both appellants and amicus

curiae urge that the evidence submitted by appellees

proves that 18-20 year old males are inferior to like-aged

fernales. Appellees invite this Court to examine the find-

ings of the trial court and in doing so will discover that no

such finding was made by the trial court or suggested by

elie

the appellees. No effort was made by the appellees to prove

that 18-20 year old males were in any way less capable

than 18-20 year old females, the effort to construe the evi-

dence as somehow proving such a state is entirely that of

appellants. The evidence is sufficient to support the trial

court’s findings, noted above, and these findings are clearly

legally cognizable as a basis for the classification at issue.

The appellees introduced eight exhibits in support of

the restrictions on the sale of 3.2 beer, the most pertinent

portions of which are summarized as follows:

Appellees’ Exhibit I, Jurisdictional Statement A22 and

399 F.Supp., at 1314, which is an extract of data compiled

by the Oklahoma State Bureau of Investigation, represents

figures submitted by 194 law enforcement agencies in the

State of Oklahoma. The Exhibit shows that for the offense

of Driving Under the Influence, 92‘: of the 18 year olds

arrested were male, 98‘, of the 19 year olds were male,

and 95° of the 20 year olds were male. Of those arrested

for drunkenness 90‘: of the 18 year olds were male, 91%

of the 19 year olds were male, and 91‘: of the 20 year olds

were male.

Appellees’ Exhibit Il, Jurisdictional Statement A23

and 399 F.Supp., at 1315, refiects the total number of per-

sons arrested for various crimes by the Oklahoma City

Police Department in 1973. For the offense of Driving

Under the Influence, 82° of the 18 year olds were male,

98°; of the 19 year olds were male, and 94% of the 20

year olds were male.

The overall percentage of males arrested for Driving

Under the Influence, of all ages was 92%. Thus, for the

—20—

ages 19 and 21, the percentage of males arrested was higher

than the overall rate, with the 19 year old figure showing

a significant increase over the average.

Appellees’ Exhibit II also shows that for the offense

of Drunkenness, 85°- of those 18 year olds arrested were

male, 83° of the 19 year olds were male, and 84% of the

20 year olds were male.

Appellees’ Exhibit III, Jurisdictional Statement A24-

A29, and 399 F.Supp., at 1315-1320, contains the results of

a scientific random roadside survey of drivers conducted

by Oklahoma Management and Engineering Consultants,

Inc. (O.M.E.C., Inc.) pursuant to a research grant from the

Alcohol Safety Action Program. The survey was conducted

at 19 locations in all quadrants of Oklahoma City during

August of 1972 and 1973. The data is compiled by sex for

the age group of under 20 years of age.

The cover letter reveals that the total number of

drivers, male and female, under 20 years was 313 in 1972

and 306 in 1973. A comparison of that data with Table 3

reveals that in 1972, 78‘; of the randomly selected drivers

under 20 years were male, and in 1973, 78° of the drivers

under 20 were male. Table I shows that male drivers under

20 drive more average miles than females, and slightly

more average days per week than females.

A comparison of Tables 2 and 3 reveals that of all

males interviewed, 78°* in 1972 and 74% in 1973 stated

that their drink preference was beer. However, of the

males under 20 years who were interviewed, 84° in 1972

and 80‘% in 1973, stated that their drink preference was

beer. Of all females, 54°: in 1972 and 44% in 1973 stated

= =

their drink preference as beer. Of females under 20, 77%

in 1972 and 50% in 1973 stated their drink preference to

be beer.

Table 1 also shows: (1) that more males than female

drivers under 20 had drunk alcoholic beverages within the

two hours prior to interview, (2) that more male than

female drivers under 20 had a Blood Alcoho! Concentration

(BAC) of greater than .01, and (3) that of those drivers

under 20 who had a BAC of greater than .01, a significantly

higher percentage of males had BAC’s of .05 or greater.

Appellees’ Exhibit IV, Jurisdictional Statement A30,

end 399 F.Supp., at 1320, which contains data of Oklahoma

motor vehicle collisions, compiled by the Oklahoma De-

partment of Public Safety, portrays a very disturbing

statistic. On page 7 of the report, there appears a summary

of persons killed and injured in Oklahoma by age and sex.

A cursory review of the various listed age groups as a

whole reveals that the age group 17 through 20 years

suffered the greatest number of persons killed and injured,

than any other age group, in all categories, except pedes-

trians. The table shows a total of 116 males (77%) and 34

" females (237 ) were killed statewide in Oklahoma. Also, a

total of 2,811 males as opposed to 1,916 females were in-

jured statewide; .gain, the highest number in any age

grouping listed. Of the drivers aged 17-20 who were killed,

65 were male and 14 were female.

Appellees’ Exhibit V, Jurisdictional Statement A31l,

and 399 F.Supp., at 1321, also a summary by the Oklahoma

Department of Public Safety, contains the data for 1973.

Again, the 17-20 year old age group led in all categories,

—29—

except pedestrian deaths and injuries. A comparison of

Exhibits IV and VY reveals an even more disturbing statis-

tic: Even though fewer total deaths occurred in 1973 (797

total, 544 males and 253 females) than in 1972 (843 total,

597 males and 246 females), the total deaths and injuries

in the age group 17-20 continued to increase. Most signifi-

cantly the number killed and injured drivers in age group

17-20 continued to rise.

iso, in both 1972 and 1973, the number of killed and

injured drivers, both male and female, continued to in-

crease. In addition, Exhibits IV and V both reflect that

significantly more males than fernales were killed and

injured in all categories.

Unfortunately, the Department’s statistics in appel-

lees’ Exhibits IV and V do not show the leve'!s of intoxica-

tion, if any, of those killed and injured in age group 17-20,

but it is still amply illustrated that this age group is par-

ticularly vulnerable to death or injury in motor vehicle

collisions, whether as a result of either intoxication or in-

experience in driving, or both.

Appellees’ Exhibit VI, App. 182-184, is a summary

compiled by the Federal Bureau of Investigation of data

from 10,000 law enforcement agencies covering 93°: of the

United Siates population. Table 29 at page 123 of the report

shows a nationwide increase in the number of persons

arrested for driving under the influence for the year 1972,

as compared with the year 1967. The percentage increase

(138% ), of arrests for driving under the infiuence is larger

than any other crime listed, except narcotic drug laws; the

same is true for both age groups listed.

- =

Table 34, at page 129, App. 184, shows that the 1972

‘national percentage of males of all ages arrested for Driv-

ing Under the Influence is 93% and 92% for the offense

of drunkenness.

Appellees’ Exhibit VII, App. 185-207, a report com-

piled by the Minnesota Department of Public Safety, shows

that other states’ statistics are similar to Oklahoma. Table

4, at page 7 of the report, shows more male drivers under

20 were killed than females, with significantly more males

having extraordinarily high BAC levels than females.

Appellees’ Exhibit VIII, App. 208-226, is a federal re-

port on the proceedings of the Joint Conference on Alcohol

Abuse and Alcoholism. Table 9, at page 127 of the report,

shows a significantly higher “accident-vulnerability ratio”

for 18-19 males at BAC levels of .01-.04 and .05-.09. The

summary at page 130 of the report, App. 224, states that:

“Under the age of 18, driving after drinking is quite

rare. However, the frequency and intensity of driving

after drinking increases rapidly for drivers 18 and 19

vears old .. . there is an important relationship of

alcohol to youth-involvement in collisions. . . . This

concerns the impact of sma!! amounts of alcohol; i.e.,

those resulting in BAC’s which are positive but less

than .05. Among teenagers such low concentrations

are an important component in crashes... .”

The appellees urge that the preceding evidence-in-

chief supports the conclusion that the classification is rea-

sonable in prohibiting the sale of beer to a class (males

18-20) who have a demonstrated vulnerability to auto acci-

dents. Surely the minimization of drunk drivers on Okla-

homa highways is a rational objective of the Oklahoma

Legislature, and even a compelling stated interest.

—24—

Both appellants and amicus curiae first complain that

the arrest statistics in Exhibits I and II are of no signifi-

cance because they did not show convictions for the

respective offenses. Appellant cites Schware v. Board of

Bar Examiners, 353 U.S. 232, 241-243 (1957), and Loper v.

Beto, 405 U.S. 473 (1972), for the proposition that only

convictions can prove guilt of any particular offense and

that the records must show that the conviction was with

counsel. However pertinent these cases may be where an

individual is concerned they are not significant to the case

at bar in that the appeliees did not trv to prove, as in the

Schware case, supra, that any one individual lacked good

moral character nor, more importantly, did the appellees

attempt to prove that any individual was guilty of a crime,

but rather this Exhibit, as the remaining ones, attempts

to show involvement with alcoholic beverages of a group

and in this respect the statistics are of the same nature as

those used in Kalin v. Shevin, 416 U.S. 351 (1974). In that

case a Florida statute granting a tax exemption for widows,

but not to widowers, was upheld against an equal protec-

tion attack. This Court concluded at page 353:

“There can be no dispute that the financial difficul-

ties confronting the lone woman in Florida or in any

other State exceed those facing the man.”

Numerous statistics were used, similar in nature to those

offered in the case at bar, to support this conclusion. Based

on the evidence this Court further stated at pages 355-356:

“There can be no doubt, therefore, that Florida’s

differ:ng treatment of widows and widowers ‘ “rest[s]

upon some ground of difference having a fair and sub-

stantial relation to the object of the legislation.” ’’ Reed

=~ =

v. Reed, 404 U.S. 71, 76, 30 L. Ed.2d 225, 92 S. Ct. 251,

quoting Royster Guano Co. v. Virginia, 253 U.S. 412,

415, 64 L. Ed. 989, 40 S. Ct. 560.

“This is not a case like Frontiero v. Richardson, 411

U.S. 677, 36 L. Ed.2d 583, 93 S. Ct. 1764, where the

Government denied its female employees both sub-

stantive and procedural benefits granted males ‘solely

. . . for administrative convenience.’ Id., at 690, 36 L.

Ed.2d 583 (emphasis in original). We deal here with a

state tax law reasonably designed to further the state

policy of cushioning the financial impact of spousal

loss upon the sex for which that loss imposes a dis-

proportionately heavy burden. We have long held that

‘[w]here taxation is concerned and no specific federal

right, apart from equal protection, is imperiled, the

States have large leeway in making classifications and

drawing lines which in their judgment produce reason-

able systems of taxation.’ Lehnhausen v. Lake Shore

Auto Parts Co., 410 U.S. 356, 359, 35 L. Ed.2d 351, 93

S.Ct. 1001. A state tax law is not arbitrary although

it ‘discriminate[s| in favor of a certain class .. . if the

discrimination is founded upon a reasonable distinc-

tion, or difference in state policy,’ not in conflict with

the Federal Constitution. Allied Stores v. Bowers, 358

U.S. 522, 528, 3 L. Ed.2d 480, 79 S. Ct. 437. This princi-

ple has weathered nearly a century of Supreme Court

adjudication, and it applies here as well... .”

A similar, if not stronger, consideration is afforded classi-

fications drawn under the authority of the Twenty-first

Amendment as evidenced by California v. LaRue, supra,

and other cases cited in Proposition I.

The appellants and amicus curiae again suggest that

the exhibits dealing with arrest cannot be recognized be-

cause they do not rule out multiple arrests. Exhibit I alone,

|

eniien

establishing 90 plus percent of 18, 19, and 20 year old

arrests for Driving Under the Influence as being male, can-

not be disregarded because the percentage figure might be

reduced somewhat by an unknown number of multiple ar-

rests. The Exhibit is sufficient to show a vastly larger per-

centage of 18-20 year old males, as opposed to females, are

involved in driving and drinking, irregardless of the per-

centage figure that might result from actual convictions,

even considering a reasonable number of multiple arrests.

Exhibits I and II are further objected to because they

are not related directly to cn!y 3.2 beer. The fallacy of this

argument lies in the fact that the Exhibits refiect arrest

for drunkenness or Driving Under the Influence which are

determined by the effect of alcohol on the person, not the

source of that alcohol. The Exhibits need not have been

limited to 3.2 beer because, as the appellants point out in

their brief, there is no classification as to males and females

in regard to other intoxicating beverages; the purchase of

“hard liquor” is denied to both sexes wntil 21 years of age.

Oklahoma Constitution, Article 27, £5, and 37 O.S. 1971,

$537(a)(1). The Legislature had every right to look to

other sources of alcohol and regulate its availability. Any

“hard liquor” included in the arrest statistics in Exhibits I

and II were already illegal under the Oklahoma law but

the involvement of this 16-20 year old age group with al-

cohol resulted, in effect, in the regulation that no one could

purchase 3.2 beer until 18 and even this privilege was de-

nied to males until 21 years of age. Appellants suggest

further that the Exhibits must be other than 3.2 beer be-

cause it is non-intoxicating and cites as authority State,

ex rel. Springer v. Bliss, 199 Okla. 198, 185 P.2d 220 (1947).

—27—-

The cited case does not say that 3.2 beer cannot be intoxi-

cating in fact, but held only that 3.2 beer was not a pro-

hibited beverage under Oklahoma’s old prohibition laws.

A later Oklahoma decision bears this out, as was stated in

Douglas v. State, Okla., 225 P.2d 376, 380 (1950):

“The defendant’s second proposition is that the trial

court erred in excluding evidence sought to be elicited

on cross examination of the highway patrolman about

what kind of liquor they smelled on the defendant’s

person and his breath. The trial court sustained his

objection to this cross examination. The object of the

defendant in seeking this information appears in his

5th proposition to the effect that the court erred in not

giving his requested instruction that the state should

be required in substance to prove 3.2 beer was intoxi-

cating. It therefore appears that the defendant sought

to lay the predicate for putting this burden of proof

on the state by showing the officers smelled beer on

the defendant, several bottles of which the officers

found in the car, and the defendant admitted he had

been drinking. This contention and the contention in

the defendant’s fifth proposition will be considered to-

gether. The kind of liquor the defendant had been

drinking was immateria!. The material fact was, was

the defendant drunk whether on 3.2 beer or liquor

with an alcoholic content in excess thereof. It was not

error to exclude such evidence on cross examination

and refuse the defendant’s requested instruction. In

Foglesong v. State, 69 Okl. Cr. 360, 103 P.2d 106, it

was said:

“ ‘Section 1, Chapter 153, Session Laws of 1933, 37

Okl. St. Ann. §151, defines what is “intoxicating” and

“non-intoxicating” liquors. The definition under this

act was for the purpose of thus classifying beverages,

as a foundation for the subsequent licensing and tax-

ing provision. It was not intended to regulate the pro-

Le

—23—

visions of the law with reference to the enforcement

of the criminal statutes.

“Section 10324, O.S. 1931, 47 Okl. St. Ann. §93,

makes it an offense for one who is under the influence

of intoxicating liquor, or who is a habitual user of

narcotic drugs, to operate or drive a motor vehicle on

any highway within the state.

“Under this statute it was the intention of the Leg-

islature to punish those who were in fact “under the

influence of intoxicating liquor,” whether it be caused

from drinking beer with an alcoholic content of 3.2 per

cent or liquor in excess thereof.’

“Hence the lack of merit in the defendant’s second

and fifth contentions clearly appears.”

In the same vein the appellants argue that the number of

miles males drive versus females could affect the validity

of the arrest siatistics. While this line of argument might

show interesting results from a Driving Under the Influ-

ence per mile driven comparison between male and fe-

males, it does not detract the significance of these Exhibits

in that if males as a class do drive more miles than females

while indicating a preference for beer it still lends strength

to the reasonableness of the classification. It logically fol-

lows that if, in fact, males do drive a significant number of

miles more than females in the 18-20 year old age group

that they might constitute a class whose accessibility to

3.2 beer should be curtailed.

Appeliants next contend that because Exhibits I and

II contain a category of offenses labeled “liquor laws,”

which contained as a part of its statistics arrests for offenses

which would not apply equally to males and females, such

as “working-in-a-beer-joint-by-a-minor,” that the entirety

—29—

of toth Exhibits were inadmissible and the judgment of the

trial court is thus tainted with constitutional error. Appel-

lants cite as authority Fahy v. Connecticut, 375 U.S. 85

(1963) and Chapman v. California, 386 U.S. 18 (1967).

While these cases deal with illegally seized evidence and

unconstitutional argument as requiring reversal of state

criminal convictions, they cannot be construed to require a

similar effect here. The category complained of constituted

but one part of these Exhibits and the trial court properly

did not exclude the entire Exhibit in either case. Further-

more, the trial! court did not consider this particular data

in reaching its decision, as can be quickly determined by

again examining the specific Findings of Fact in the Opin-

ion. Indeed, contrary to appellants’ contentions, it appears

obvious that the trial court disregarded this category alto-

gether in that it was ignored completely in its decision.

Appellants and amicus curiae also suggest that there

is selective law enforcement in Oklahoma in regard to

males which ignores apparently certain offenses by females

while arresting males and thus invalidates the statistical

data introduced into evidence. But to what proof do they

refer—none. No evidence of this so-cailed condition was

tefore the trial court and none is offered to this Court.

Rather, appellants ask this Court to take, in effect, judicial

notice of a condition which is not proved to exist. Appel-

lants rely on two case decisions to support his ungrounded

statement of selective law enforcement in Oklahoma. The

first is Hayes v. Municipal Court, Okla., 478 P.2d 974 (1971).

This case, like the next one discussed, held as unconstitu-

tionally vague certain vagrancy ordinances, but did not

show any selective law enforcement against males as op-

—30—

posed to females and does not concern itself with the type

of arrest records before this Court. To this same effect is

Papachristou v. Jacksonville, 405 U.S. 156 (1972). While

this case proves no selective enforcement pertinent to this

case, it is an excellent example of the use by this Court

of arrest data, see Footnote 16 beginning at page 169. Ac-

cordingly appellees respectfully request this Court to dis-

regard this line of argument as completely unfounded.

In summary all of the appellants’ and amicus curiae

arguments in regard to the evidence submitted by appel-

lees go to the weight to be given this evidence and not

to its admissibility. While appellants suggest that a test

might be given to individuals between 18-20 years of age

as a less drastic alternative, surely this suggestion was cor-

rectly ruled out by the trial court. Considering the stag-

gering, if not impossible, task of administering a sobriety

test to each such person each time he decides to drive an

automobile would not be a viable alternative solution as

indicated in Vlandis v. Kline, 412 U.S. 441 (1973). See alsu

the trial court’s specific comments on this issue in the Juris-

dictional Statement at pages A18-A19 and 399 F.Supp., at

1313.

Moreover, certain portions of the testimony of the ap-

pellants’ experts further support the validity of the state’s

classification. One witness testified:

(1) that males have a greater interest in experiment-

ing with alcohol (App. 82-83),

(2) that he has observed and treated more young male

alcoholics, than females (App. 88),

(3) that women start drinking later in life (App. 85-

89),

oie

(4) that males between the ages of 18-21 would be

more inclined to experiment with alcohol (App. 93-95),

(5) that males are generally more aggressive, or have

a greater drive behavior in all years of their lives, includ-

ing the years 18-21 (App. 95),

(6) that the greater activity behavior of males has

leveled off at its highest level through the years 18-21

(App. 96),

(7) that more males aged 18-21 than females were

alcohol users (App. 104),

(8) that for socially-determined reasons, males do

tend to use alcohol more readily and more readily to the

point of being identifiable abuse at all ages, including 18-21

(App. 109),

(9) that the challenged legislation is in the interest

of controlling a tiny part of the problem of controlling

drinking offenses (App. 111).

Another witness testified:

(1) that in general males consume greater quantities

of alcoho] than females (App. 125),

(2) that most of his subjects, male and female, started

drinking around age 18 (App. 127).

The appellees urge that all of the preceding evidence

amply illustrates a problem ripe for legislative action. The

evidence submitted in this case demonstrates that there

are different drinking and drinking-influenced behavior

patterns between males and females aged 18-20. The differ-

ences may or may not be biological or psychological in

—_..

origin; the evidence in this case is not conclusive in either

possibility. What is clearly established is the difference in

alcohol-related behavior, for whatever reason, between

males and females aged 18-20, which supports and estab-

lishes the rationality of the legislative classification in 37

O.S. Supp. 1975, $245.

PROPOSITION Ill

THE STATE OF OKLAHOMA HAS THE RIGHT TO SHOW

THE RATIONAL BASIS FOR ITS LEGISLATION WITHOUT

PROVING THAT SUCH LEGISLATION WAS A PERFECT

SOLUTION.

Appellants’ main thrust in their third proposition is

that through their own reasoning and interpretation of the

evidence, the Oklahoma statutes are ineffective and, there-

fore, irrational and unconstitutional. Appellants quote no

legal authority for this line of reasoning but appellees feel

that this line of argument has been rejected entirely by

this Court. Thus, in Seagram and Sons v. Hostetter, 384 U.S.

35, 50-51 (1966), this Court limited the review of state

laws in regard to whether they were successful or not. See

quotations on page 10 of this brief.

More recently in Kahn v. Shevin, supra, at page 356,

footnote 10:

“The dissents argue that the Florida Legislature

could have drafted the statute differently, so that its

purpose would have been accomplished more precisely.

But the issue of course is not whether the statute could

have been drafted more wisely, but whether the lines

chosen by the Florida Legislature are within constitu-

tional limitations... .

‘9

=-_ =

Thus, how well the Legislature of Oklahoma addressed

itself to the problem of alcoho! and its effect on death, in-

jury and property loss on Oklahoma highways is not at

issue here but only whether this regulation of alcohol in

the questioned statutes is within constitutional limits,

which burden the State has met.

Appellants’ last proposition also asks this Court to

hoid that any classification by sex is automatically uncon-

stitution: |. Thus they suggest that any such classification

is bevond merely “inherently suspect,’ which this Court

has not held but is entirely and unequivocally forbidden

by the Constitution. Appellants apparently reject the State

of Oklahoma’s right to prove its classification at bar had a

rational basis. The appellants are simply saying it is impos-

sible as a matter of law. Perhaps appellants are saying that

they should only have had to file a complaint with the trial

court in order to bring the offending statute to its atten-

tion, no opportunity to present a defense would have been

necessary under this reasoning. Though litigation is time

consuming and the appellees have been required to burden

the Court with evidence, nothing in the Stanton v. Stanton

decision, supra, or Reed v. Reed, supra, places an automatic

unconstitutionality of any classification and appellees have

shown the reasonableness of its classification sufficient to

withstand the constitutional attack against it.

anliies

CONCLUSION

The trial court was correct in determining that the

Oklahoma statutes at issue do not deny the appellants

equal protection of the laws guaranteed by the Fourteenth

Amendment, but rather are well within the authority

granted the states to control alcoholic beverages under

the Twenty-first Amendment. Further, the classification

delaying the purchase of 3.2 beer to males until 21 years of

age is fully supported by the evidence so as to satisfy the

rationale of Reed v. Reed, supra, and therefore appellees

respectfully request this Court to affirm the decision of the

lower court.

Respectfully sukmitted,

LARRY DERRYBERRY

Attorney General of Oklahoma

JAMES H. Gray

Assistant Attorney General

112 State Capitol Building

Oklahoma City, Oklahoma 73105

Attorneys for Appellees

April, 1976

CERTIFICATE OF SERVICE

This is to certify that three (3) true and correct copies

of the foregoing instrument were served upon:

Mr. Fred P. Gilbert

1401 National Bank of Tulsa Building

Tulsa, Oklahoma 74103

Attorneys for Appellants

Ruth Bader Ginsburg

Melvin L. Wulf

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

the only parties to be served, by mailing such true and

correct copies, postage prepaid, this . _ day of April,

1976.