Amicus Brief — Craig v. Boren

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Supreme Court, U.& ,.

FILED *

—_— FEB 26 1976

Supreme Court of the United States &. cvcxk |

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Octosper Term, 1975

No. 75-628

—_>

Curtis Craig and CaroLyn WHITENER,

d/b/a “The Honk and Holler,”

Appellants,

—Y

Hon. Davip Boren, Governor, State of Oklahoma, Hon.

Larry Derryserry, Attorney General, State of Okla-

homa, Hon. D. M. Berry, Chairman, Hon. Lawton L.

LerninGer, Vice-Chairman, Hon. J. L. Merrix, Secre-

tary-Member, Oklahoma Tax Commission, Hon. Ray

Wa Lt, Presiding Judge, Ninth Judicial District Court,

State of Oklahoma, Hon. Cuarues H. Heaprick, District

Attorney, Ninth Judicial District, State of Oklahoma,

Hon. Rose Jarvis, District Court Clerk, Payne County,

State of Oklahoma, Hon. Frank Purips, Sheriff, Payne

County, State of Oklahoma, and Hon. Himary Dnrices,

Chief of Police, Stillwater, Oklahoma,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

MOTION OF AMERICAN CIVIL LIBERTIES UNION

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE

Ruts Baver GInsBuRG

Mervin L. WuLF

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

TABLE OF CONTENTS

PAGE

Motion for Leave to File Brief Amicus Curiae ................ 1

I a ssnsmamesnoneseunn 5

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ae ices enccececemensienenmmmennenccanees 6

acre aaeertncseenenentenencenccnenennennees 6

I sssustioumeeuoune 7

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ARGUMENT:

I. Oklahoma’s sex/age classification to determine

qualification for association with 3.2 beer

pigeonholes impermissibly on the basis of

gender in violation of the fourteenth amend-

ment’s equal protection principle ........................ 13

A. This Court’s precedent condemns legisla-

tive classification based on overbroad gen-

eralization about “te way women (or men)

EEE 13

B. Sex/age lines in the law cannot be justified

on any basis—‘“compelling state interest,

or rational basis, or something in between” 15

IL.

IIT.

C. Gender-based discrimination in laws regulat-

ing the sale and consumption of alcohol is

wholly without support in currently viable

ITS ccxcssscisitisisenieciciisienssitaitienincseiniainiiesipaia

D. Laws such as 37 Okla. 4241, 243, 245 shore up

artificial barriers to realization by men and

women of their full human potential and

retard society’s progress toward equal op-

portunity, free from gender-based discrimi-

I cissriiinaniscdanieitnisatiessaadiiciniianieaniineaiennsieaiaininians

The twenty-first amendment does not insulate

from close scrutiny Oklahoma’s separation of

3.2 beer purchasers along gender lines ................

The statistical proof on which the court below

relied fails to establish that the hypothesized

legislative objective (protection of young men

and the public, particularly on the road) is

fairly, substantially or sensibly served by a 3.2

Ne ID cecniteneerennitenictatinsin

A. Oklahoma arrest statistics ..0...00000

B. Oklahoma traffic death and injury statistics

C. National, Minnesota and Michigan statistics

See ercccetunicciinieinntainenitiiiiininiinaions

D. A roadside survey in Oklahoma City ............

LODO TTC TR CORTE

PAGE

21

23

ee

ili

TaBLe oF AUTHORITIES

PAGE

Cases:

California v. LaRue, 409 U.S. 109 (1972) 0000 25

Commissioner of Internal Revenue v. Moritz, cert.

denied, 412 U.S. 906 (1973), opinion below, 469 F.2d

ae ee A STD sensticntitennieeenatindinticiticelnamieitinitieiieiiiis 10

Commonwealth v. Burke, 481 S.W.2d 52 (Ky. 1972) ..18, 24

Daugherty v. Daly, 370 F. Supp. 338 (N.D. II.

ee 18, 24

Frontiero v. Richardson, 411 U.S. 677 (1973) ...... 10, 13, 14,

15, 22

Geduldig v. Aiello, 417 U.S. 484 (1974) -22022..eeeeeeeeeeee ee 15

Goesaert v. Cleary, 335 U.S. 464 (1948) ..11, 15, 19, 20, 21, 24

Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (C.D.

SEITEN CITED : weetusnnscninesnsiesnnnsiibitanieniaiinnnnianasbabiiiaiaipiiapimepanninnie 27

Harrigfeld v. District Court, 95 Idaho 540, 511 P.2d 822

STEEED ciscsssscnssiansaintianbebeabeliaiaiiiicianiinesiaiaeaniaitinnbabonendndiesalinaiascaadiiastes 17

Hoyt v. Florida, 368 U.S. 57 (1961) .................-cceccesceeceeceees 21

Kahn v. Shevin, 416 U.S. 351 (1974) -22...e eee eee 15

Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972) ....13, 17, 23, 24

Matter of Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33,

ee ee Ge CD ccncenicmnithienicicsiiiitatenieninniiiniatine 17

Menard v. Mitchell, 328 F. Supp. 718 (D.D.C. 1971),

rev'd on other grounds, 498 F.2d 1017 (D.C. Cir.

TPT cinecsnicmiscaniaicincascahinaanieenheseigeiiagenisceahbieniualidiinieaiai 27

New Jersey v. Chambers, 63 N.J. 287, 307 A.2d 78

(1973) . ianiainteaats ‘ . B

en EEE

iv

PAGE

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ... 25

Paterson Tavern & Grill Owners Ass’n v. Hawthorne,

pf? Ss | FS ff) eee 18, 24

Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775 (1974) ........ 17

Reed v. Reed, 404 U.S. 71 (1971) ............................8, 13, 14, 20

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th

Seas SEITE canictseterpinsienitenhbioinieiicesinnesteniliaitiaaibasesiisiaiibasbitanteiiniinsas 20

Sail’er Inn, Ine. v. Kirby, 5 Cal.3d 1, 485 P.2d 529

STITUTE sishichelipienhdaanicihindeesieiatemhebameiiicibhidaatihcesiedeaibiatibbie cia 18, 20, 22, 24

Schlesinger v. Ballard, 419 U.S. 498 (1975) -...00000020.... 15

Schware v. Board of Bar Examiners, 353 U.S. 232

STEUEITED _ sinhsnannmsnebenetennepiaiedasiesimatanbiendauieilidansmuatiitiaitaibeniintiiitbumaiaiiianeans 27

Stanley v. Illinois, 405 U.S. 645 (1972) 0002 13

Stanton v. Stanton, 421 U.S. 7 (1975) ....8, 10, 13, 15, 16, 17

Tang v. Ping, 209 N.W.2d 624 (N. Dak. 1973) ~..00.000000...... 17

Taylor v. Louisiana, 419 U.S, 522 (1975) -200000. 13, 20

United States v. Dege, 364 U.S. 51 (1960) 0. 19

Walker v. Hall, 399 F. Supp. 1304 (W.D. Okla. 1975),

prob. juris. noted, Jan. 12, 1976.00... ee eee passim

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ 10, 13,

14, 20

White v. Fleming, 522 F.2d 730 (7th Cir. 1975) -........... 18, 24

Women’s Liberation Union of Rhode Island v. Israel,

Fe BF 8: 8 8 ee 18, 24

Constitutional Provisions:

United States Constitution

Fourteenth Amendment ..........................ec-csecsesseses- passim

Twenty-First Amendment ..0000.00200..0..cccecceeeeeeee 11, 23, 25

PAGE

Federal Statutes:

Civil Rights Act of 1964, Title VII, 42 U.S.C. ¢2000e .... 21

Other Authorities Cited:

“Bartending Must Revert to Bartenders, Says the

G.E.B.,” Catering Industry Employee (April 12,

1946), extracted in Babcock, Freedman, Norton &

Ross, Sex Discrimination and the Law (1975) ............ 19

Brief for the Appellant, Weinberger v. Wiesenfeld,

Gee als Ge I sccunicenenteesomininiieniennsineiauntindé 10

Brief for the Appellees, Frontiero v. Richardson, 411

U.S. 677 (1973) ........... sisiiailpanieaniteaiiantbaaniinitmasill 10

Brief for the Commissioner, Commissioner of In-

ternal Revenue v. Moritz, cert. denied, 412 U.S. 906

(1973), opinion below, 469 F.2d 466 (10th Cir. 1972) .. 10

Broverman, Vogel, Broverman, Clarkson & Rosen-

crantz, Sex Role Stereotypes: A Current Appraisal,

SD tic Cs I Te GT erceretttcncstencnecttttaieninnenincion 22

Chafe, The American Woman (1972) .......22.2..-..--..:-00-+ 22

Comment, 24 Syr. L. Rev. 1131 (1973) -...02.022222..222.-.. 25

Comment, 1975 Wis. L. Rev. 161 .................. in| ae

Davidson, Ginsburg & Kay, Sex-Based Discrimination

CIE . sctnensmceirieneenniminiiaainnmameeentain 19

de Beauvoir, S., Second Sex (1949) cisladiuasiaaaanateineiasainaiaaidis 22

Editorial, Tulsa Daily World, January 13, 1975 ............ 21

Johnston, Jr. & Knapp, Sex Discrimination by Law:

A Study in Judicial Perspective, 46 N.Y.U.L. Rev.

ot) | 20, 24

Kandel, Single & Kessler, The Epidemiology of Drug

Use Among New York State High School Students

66 Am. J. Pub. Health 43 (Jan. 1976) .......................... 25

EEO

PAGE

Kanowitz, L., Women and the Law (1969) 000... 19, 20

Maccoby, E. & Jacklin, C., Psychology of Sex Differ-

I GD etiinniicisciinccncbinictisniiitnisanaprsiamniinenepeimamennans 22

McCormick, Evidence §43 at 85 (Cleary ed. 1972) ........ 27

Motion to Affirm, Frontiero v. Richardson, 411 U.S.

Sy TIED seieidiesssishieesisitniassiiiiestenieinieininailinagaabiaisecniasidtieisencenee 10

Nagel & Weitzman, Women as Litigants, 23 Hastings

OE | ne eae a 28

Note, The Sexual Segregation of American Prisons, 82

rE Ce 28

Petition for Certiorari, Commissioner of Internal Reve-

nue v. Moritz, cert. denied, 412 U.S. 906 (1973),

opinion below, 469 F.2d 466 (10th Cir. 1972) —............ 10

Proceedings of the Joint Conference on Alcohol Abuse

and Alcoholism, February 21-23, 1972 -..0000222...e-e.eeeeee 30

Reckless & Kay, The Female Offender (1967) -.............. 28

U.S. Department of Transportation, Drivers Li-

ens Sets TTI jiitsioninsinriintnbitenenierntennenipsnciatanatietipanins 32

Wechs!ter, Thum, Demone & Dwinnell, Social Charac-

teristics and BAC Level, 33 Quarterly Journal of

Studies on Alcohol 132 (1972) .22.2..22.........eccccecscsssecseeseees 24

Wechsler, Thum, Demone & Kasey, Religious-Ethnic

Differences in Alcohol Consumption, 11 J. of Health

& Social Behavior 21 (1969) .2............ccccccccccteceseececeseeee 24

Williams, Brehm, Cavanaugh, Moore & Eckerman,

Final Report of Research Triangle Institute Center

for the Study of Adolescent Drinking Behavior, Atti-

tudes and Correlates (National Institute on Alcohol

Abuse and Alcoholism, U.S. Department of Health,

Education, and Welfare, April 1975) -.....0.2020.0....000-- 24

IN THE

Supreme Court of the United States

Ocroser TrerM, 1975

No. 75-628

—<——

Curtis Craia and CaroLyn WHITENER,

d/b/a “The Honk and Holler,”

Appellants,

Vi

Hon. Daviw Boren, Governor, State of Oklahoma, Hon.

Larry Derryserry, Attorney General, State of Okla-

homa, Hon. D. M. Berry, Chairman, Hon. Lawton L.

Lernincer, Vice-Chairman, Hon. J. L. Merry, Secre-

tary-Member, Oklahoma Tax Commission, Hon. Ray

Wa LL, Presiding Judge, Ninth Judicial District Court,

State of Oklahoma, Hon. Cuartes H. Heaprick, District

Attorney, Ninth Judicial District, State of Oklahoma,

Hon. Rose Jarvis, District Court Clerk, Payne County,

State of Oklahoma, Hon. Frank Pures, Sheriff, Payne

County, State of Oklahoma, and Hon. Hitary Dries,

Chief of Police, Stillwater, Oklahoma,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

>

MOTION OF AMERICAN CIVIL LIBERTIES UNION

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The American Civil Liberties Union respectfully moves,

pursuant to Rule 42 of this Court’s Rules, to file the within

brief amicus curiae. Counsel for the appellants has con-

sented to the filing of this brief; counsel for the appellees

has refused consent. -

2

The American Civil Liberties Union is a nationwide, non-

partisan organization of over 250,000 members dedicated

to defending the rights of all persons to equal treatment

under the law. Recognizing that line drawing by gender is

a pervasive problem at all levels of society, and is often

reinforced by governmental action, the American Civil

Liberties Union has established a Women’s Rights Project

to work toward the elimination of law-sanctioned gender-

based discrimination.

Lawyers associated with the American Civil Liberties

Union Women’s Rights Project presented the appeal in

Reed v. Reed, 404 U.S. 71 (1971), participated as counsel

for the appellants and later as amicus curiae in Frontiero

v. Richardson, 411 U.S. 677 (1973), represented the appel-

lant in Kahn v. Shevin, 416 U.S. 351 (1974), the appellees

in Edwards v. Healy, 421 U.S. 772 (1975), and Weinberger

v. Wiesenfeld, 420 U.S. 636 (1975), and the petitioners in

Struck vy. Secretary of Defense, cert. granted, 409 U.S. 947,

judgment vacated, 409 U.S. 1071 (1972), and Turner v.

Department of Employment Security, U.S. ——, 96

S. Ct. 249 (1975), and acted as amicus curiae in this Court

in several other gender discrimination cases.

The American Civil Liberties Union believes that this

case, concerning an age of majority differential based

solely on gender, presents an issue significant to the realiza-

tion of full equality between the sexes under the law. For

such differentials cast the weight of the state on the side

.. of traditional notions about the expected behavior of males

’ and females, shore up artificial barriers to the attainment

by women and men of their full human potential, and retard

society’s progress toward equal opportunity, free from

gender-based discrimination. Because of the contribution

3

the American Civil Liberties Union Women’s Rights Project

has made to the reasoned development of the law in this

area, we believe our brief will be of substantial assistance

to the Court in the resolution of the issues raised by this

case.

Respectfully submitted,

RutH Baper GInsBuRG

Me tvin L. Wor

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Movants

IN THE

Supreme Court of the United States

No. 75-628

Octosper Term, 1975

—_-

Curtis Craig and CaroLyn WHITENER,

d/b/a “The Honk and Holler,”

Appellants,

—

Hon. Davin Boren, Governor, State of Oklahoma, Hon.

Larry Derryserry, Attorney General, State of Okla-

homa, Hon. D. M. Berry, Chairman, Hon. Lawron L.

Lernincer, Vice-Chairman, Hon. J. L. Merrm1, Secre-

tary-Member, Oklahoma Tax Commission, Hon. Ray

Wa tL, Presiding Judge, Ninth Judicial District Court,

State of Oklahoma, Hon. Cuarues H. Heaprick, District

Attorney, Ninth Judicial District, State of Oklahoma,

Hon. Rose Jarvis, District Court Clerk, Payne County,

State of Oklahoma, Hon. Franx Puutuirs, Sheriff, Payne

County, State of Oklahoma, and Hon. Huary Dnricgs,

Chief of Police, Stillwater, Oklahoma,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

=

BRIEF OF

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Interest of Amicus

The interest of amicus appears from the foregoing mo-

tion.

Opinion Below

The opinion of the United States District Court for the

Western District of Oklahoma, sitting as a three-judge

court, is reported at 399 F. Supp. 1304 (1975).

Jurisdiction

On May 17, 1975, the United States District Court for

the Western District of Oklahoma, sitting as a three-judge

court, filed the judgment which is the subject of this ap-

peal. Appellants’ timely motion for a new trial was denied

on July 14, 1975. Notice of appeal to the Supreme Court

of the United States was filed on August 11, 1975. Follow-

ing an October 8, 1975 order by Mr. Justice White ex-

tending the time for docketing the appeal, the Jurisdic-

tional Statement was filed on October 28, 1975. Appellees’

Motion to Affirm was filed on December 10, 1975. Probable

jurisdiction was noted on January 12, 1976. Jurisdiction

to review this decision on appeal is conferred by 28 U.S.C.

§1253.

Statutes Involved

37 Okla. Stat. §§241 and 245 provide:

§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 alcoho] measured by volume

and not more than three and two-tenths (3.2) per cent

7

of alcoho] 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 pur-

poses of Sections 241 and 243 of Title 37 of the Okla-

homa Statutes, is defined as a female under the age of

eighteen (18) years, and a male under the age of

twenty-one (21) years.

Question Presented

Whether 37 Okla. Stat. §§241, 245, prohibiting sale of

“non-intoxicating” alcoholic beverages to “minors” and de-

fining as minors males under the age of 21 and females

under the age of 18, establishes a gender-based differential

impermissible under the fourteenth amendment to the Con-

stitution.

Statement of the Case

This action was commenced on December 20, 1972 to

declare unconstitutional and enjoin the enforcement of the

gender line established in 37 Okla. Stat. §§241 and 245.

Those statutes prohibit the sale of 3.2 percent beer to

minors, defined as females under the age of 18 and males

under the age of 21. Appellees are state officials charged

with enforcement of the statutes in question. Appellants

are (1) a male university student over the age of 18 but

under the age of 21 and (2) a licensed retail vendor of

3.2 percent beer. The former wishes to purchase, and the

latter to sell 3.2 percent beer free from the age limitation

applicable to males only.

8

Since 1933, Oklahoma has separately classified and regu-

lated “intoxicating” and “nonintoxicating” alcoholic bev-

erages. 37 Okla. Stat. §163.1 et seq. Beverages containing

more than 3.2 percent alcohol by weight are declared to be

“intoxicating.” Beverages containing not more than 3.2

percent alcohol by weight are declared “nonintoxicating.”

Primarily, if not exclusively, the “nonintoxicating” cate-

gory encompasses 3.2 percent beer. 37 Okla. Stat. $537

(a)(1) prohibits the sale of “intoxicating” alcoholic bev-

erages to any-person under 21 years of age. The legisla-

tion in question, 37 Okla. Stat. §§241, 245, prohibits the

sale of “nonintoxicating” beverages, which encompasses

3.2 percent beer, to males under the age of 21, but permits

their sale to females at the age of 18.7

Based on this Court’s precedent in gender discrimination-

equal protection cases from Reed v. Reed, 404 U.S. 71

(1971), to Stanton v. Stanton, 421 U.S. 7 (1975), the court

below determined that defendant state officials (appellees

herein) must demonstrate a fair and substantial relation-

ship between the legislature’s resort to gender as the clas-

sifying factor and the legislative objective in view. <Ac-

knowledging that defendant state officials had not pre-

sented, nor had the court otherwise discovered any ma-

terials revealing the actual legislative purpose, the court

nonetheless concluded: “[ W Je feel it apparent that a major

purpose ... was to promote the safety of the young per-

sons affected and the public generally.” 399 F. Supp. at

1311 n. 6. The court further concluded, again without any

supporting indication in legislative history materials, that

* 37 Okla. Stat. §243, prohibiting the employment of minors in

a place where “nonintoxicating” beverages are sold for consumption

on the premises, is subject to the same gender/age differential.

Females may be employed at age 18, males not till age 21.

9

fair and substantial grounds existed for use of gender as

the classifying factor.

The court found “fair and substantial grounds” for the

gender line in exhibits tendered by the state officials con-

taining various statistics relating to the drinking proclivi-

ties and preferences of males and females, the age and sex

of persons arrested’ for “driving under the influence” and

for “drunkenness,” and the number of males and females

killed or injured in motor vehicle collisions." The court

itself twice characterized this proffered data as subject to

“several” or “various” criticisms. 399 F. Supp. at 1311 &

n. 4. Moreover, the court acknowledged that a study under-

taken by the University of Oklahoma Medical Center, and

introduced at trial by appellants, established “females were

physically no more able, and in some instances were less

able, than males to handle comparable alcohol dosages.”

399 F. Supp. at 1311. Further, it observed “the case is not

free from doubt.” 399 F. Supp. at 1314. Despite its ex-

pressed doubt and the conceded absence of any evidence

as to the basis upon which the legislature in fact acted,

the court appraised the quality of the state officials’ proof

as sufficient to overcome the burden assigned to them. No

account was taken of the probability that a similar showing

of alcohol use proclivities and preferences could be made

along ethnic lines. Nor was any account taken of the

reality that proof of the same quality was in fact adduced,

or was readily available in census data in sr~p* of the

* Defendant state officials, on grounds of administrative incon-

venience, supplied no evidence as to convictions.

® The traffic accident statistics supplied no indication as to alcohol

use (or other fault or culpability) by the drivers or the persons

killed or injured in motor vehicle collisions.

* See note 26, infra.

10

gender lines overturned by this Court in Reed v. Reed,

supra; Frontiero v. Richardson, 411 U.S. 677 (1973);

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

Stanton v. Stanton, supra.°

Summary of Argument

I.

37 Okla. Stat. §¢241, 243 and 245, establishing a sex/age

line to determine qualification for association with 3.2 beer,

discriminates impermissibly on the basis of gender in vio-

lation of the fourteenth amendment’s equal protection

clause. This legislation places all 18-20 year old males in

one pigeonhole, all 18-20 year old females in another, in

conformity with familiar notions about “the way women (or

men) are.” Upholding the legislation, the court below re-

lied upon overbroad generalizations concerning the drinking

behavior, proclivities and preferences of the two sexes.

Such overbroad generalization as a rationalization for line-

drawing by gender cannot be tolerated under the Constitu-

tion.

The Oklahoma legislation in question is a curiosity, ap-

parently the only law of its kind left in the nation. Simi-

larly, the ruling below is an anomaly. It is inconsistent

with this Court’s decision in Stanton v. Stanton, 421 U.S.

° Statistics and facts this Court found insufficient to justify classi-

fication by gender appear in Motion to Affirm at 6 n. 8, and Brief

for the Appellees at 9 n. 6, Frontiero v. Richardson, supra; Brief

for the Appellant at 14 n. 9, Weinberger v. Wiesenfeld, supra.

See also Brief for the Commissioner at 14 (10th Cir.), and Petition

for Certiorari at 8-9, Commissioner of Internal Revenue v. Moritz,

cert. denied, 412 U.S. 906 (1973), opinion below, 469 F.2d 466

(10th Cir. 1972).

11

7 (1975), and out of step with an array of authority in lower

courts, federal and state, decisions that have made museum

pieces of male/female age of majority differentials.

Just as age of majority gender-based differentials have

been declared inconsonant with the equal protection princi-

ple, so have sharp lines between the sexes relating to the

purchase, sale or consumption of alcoholic beverages. The

decision below apart, the sole authority for differential

treatment of the sexes in relation to alcoholic beverage as-

sociation is Goesaert y. Cleary, 335 U.S. 464 (1948). Widely

criticized in commentary, in square conflict with decisions

of this Court in the current decade and with national equal

employment opportunity policy, and politely discarded by

the nation’s lower courts, Goesaert is a decision overdue for

formal burial.

On the surface, Oklahoma’s 3.2 beer sex/age differential

may appear to accord young women a liberty withheld from

young men. Upon deeper inspection, the gender line drawn

by Oklahoma is revealed as a manifestation of traditional

attitudes about the expected behavior of males and females,

part of the myriad signals and messages that daily under-

score the notion of men as society’s active members, women

as men’s quiescent companions.

I.

Beyond question, Oklahoma has broad authority to regu-

late effectively the sale and service of alcoholic beverages.

But the twenty-first amendment does not insulate from re-

view legislative resort to gross classification by gender. Just

as drinking preferences and proclivities associated with a

particular ethnic group or social class would be perceived

12

as an unfair and insubstantial basis for a beverage sale or

service prohibition directed to that group or class, so a

gender-based classification should be recognized as an inap-

propriate, invidious means to the legislative end of rational

regulation in the public interest.

IT.

Even if the highly questionable statistical presentation on

which the court below relied served to prove the proposition

asserted by appellees (males “drive more, drink more, and

commit more alcohol related offenses”), that proposition

does not suffice to justify the sex/age classification here at

issue. But in fact, the statistical presentation does not do

the service claimed for it.

The arrest statistics tendered are unaccompanied by any

information as to convictions; no indication is offered of the

number of male and female individuals arrested; not a

single arrest is attributed to 3.2 beer drinking; no attempt

is made to deal with the documented “chivalry factor,” the

reality that for the very same behavior, the young man may

be arrested, while the young woman is escorted home. The

highway death and injury statistics, the state officials con-

ceded below, are not “specifically on point,” for they supply

no indication whatever of alcoho! involvement in collisions.

Finally, the roadside survey introduced below, based on a

small and disproportionately male sample, yielded results

that may not be generalized to the under-21 Oklahoma popu-

lation, and provides no information at all as to 3.2 beer

drinking.

In sum, the state officials utterly failed to demonstrate

that the hypothesized legislative objective (protection of

young men and the public from weaknesses male flesh is heir

13

to) is fairly, substantially and sensibly served by a 3.2 beer

sex/age line. The legislation in question is a bizarre and

paradoxical remnant of the day when “anything goes” was

the rule for line-drawing by gender. 37 Okla. Stat. §§241

and 245, and the decision upholding those provisions, merit

this Court’s decisive disapprobation.

ARGUMENT

L

Oklahoma’s sex /age classification to determine quali-

fication for association with 3.2 beer pigeonholes im-

permissibly on the basis of gender in violation of the

fourteenth amendment’s equal protection principle.

A. This Court’s precedent condemns legislative classifi-

cation based on overbroad generalization about “the

way women (or men) are.”

Since Reed v. Reed, 404 U.S. 71 (1971), this Court has

instructed consistently that gender-based legislative classi-

fication, premised on overbroad generalization concerning

the behavior, proclivities and preferences of the two sexes,

tolerated under the Constitution. Stanley v.

Weinberdee’v. Wiesenfeld, 420 U.S. 636 (1975); Stanton v.

Stanton, 421 U.S. 7 (1975). The decision below rests exclu-

sively upon such overbroad generalization. That decision,

and the gender line it upholds, merit this Court’s decisive

disapprobation.

Recognizing that it is no longer in vogue to rely on the

“demonstrated facts of life” * to justify gender lines in the

* Lamb v. Brown, 456 F.2d 18, at 20 (10th Cir. 1972).

14

law, appellees offered statistics which, they asserted, tended

to show that 18-20 year old males “drive more, drink more,

and commit more alcohol related offenses.” ’ Even if the

highly questionable statistical presentation® served to prove

the proposition asserted by appellees, that proposition does

not suffice to justify the sex/age classification here at issue.

Indeed, had proof of the quality presented below satisfied

the demands of the equal protection principle, the gender

lines this Court has so firmly rejected would have remained

on the books.

For example, in Reed, the proposition that men have more

business experience than women was not without empirical

support. In Frontiero and in Wiesenfeld, the statistics

tendered by the Government to document men’s nonde-

pendency, and their labor-market orientation,’ were far

more impressive than the concededly infirm data’ relied

upon in the case at bar. In short, the essence of this Court’s

decisions condemning laws drawing “a sharp line between

"Transcript of Proceedings before the United States District

Court for the Western District of Oklahoma, Walker v. Hall,

May 20, 1974 [hereafter cited as Transcript] at 5 (Appendix at

43) (opening statement of Oklahoma Assistant Attorney General).

As the court below repeatedly noted, Oklahoma’s statistical presen-

tation indicated that males 21 and over “drive more, drink more

and commit more alcohol related offenses” than males in the 18-20

age range. See 399 F. Supp. at 1309, 1311 n. 5.

5 See pp. 25-34, infra.

° E.g., to demonstrate men’s independence and work force par-

ticipation, appellees in Frontiero presented census data showing

that in 1971, “97.7 percent of married men between the ages of

25 and 44, whose wives were present, were in the civilian labor

force.” Brief for the Appellees at 9 n. 6, Frontiero v. Richardson,

supra. -

*° See 399 F. Supp. at 1311 & n. 4; Transcript at 37-38 (Ap-

pendix 66-67) (Assistant Attorney General concedes traffic death

and injury statistics (Exhibit 5) do not indicate level of intoxica-

tion, if any, and are not “specifically on point”) ; pp. 29-30, infra.

15

the sexes” * escaped appellees and the court below: neither

unsubstantiated stereotypes nor generalized factual data

suffice to justify pigeonholing by gender; a legislature may

not place all males in one pigeonhole, all females in an-

other, based on assumed or documented notions about “the

way women or men are.”

The sole post-Reed cases in which this Court has counte-

nanced classification based on “gender as such” * involved

legislation justified as compensating women for past and

present economic disadvantage. Schlesinger v. Ballard,

419 U.S. 498 (1975); Kahn v. Shevim, 416 U.S. 351 (1974).

But Oklahoma’s action cannot be rationalized on the ground

that nowadays, females may be favored, but not disfavored

by the law. For surely the concept “compensatory” or

“rectificatory” gender classification** does not encompass

the solace 3.2 beer might provide to young women already

exposed to society’s double standards or about to encounter

an inhospitable job market.

B. Sex/age lines in the law cannot be justified on any

basis—‘‘compelling state interest, or rational basis,

or something in between.”

In Stanton vy. Stanton, supra, this Court held that Utah’s

sex/age line, drawn for child support purposes, could not

survive careful review, whatever the appropriate test, “com-

pelling state interest, or rational basis, or something in

between.” 421 U.S. at 17. The Court noted that male/

female age of majority differentials have become museum

The phrase appears in this Court’s discredited decision in

Goesaert v. Cleary, 335 U.S. 464, 466 (1948) ; see pp. 19-20, infra.

12 See Geduldig v. Aiello, 417 U.S. 484, at 496 n. 20 (1974).

18 Of. Frontiero v. Richardson, supra, 411 U.S. at 689 n. 22.

16

pieces in most states. 421 U.S. at 15. Appellees have not

pointed to, nor has our investigation disclosed any state

other than Oklahoma that today maintains a sex/age line

for “nonintoxicating” 3.2 beer, or even “intoxicating” alco-

holic beverage sales.** Nor has investigation revealed any

state other than Oklahoma that today draws a gender line

to determine who may work in a place where alcoholic (“in-

toxicating” or “nointoxicating”) beverages are sold.

The three-judge court hearing in the instant case oc-

curred on May 20, 1974, The decision was filed almost a

year later, on May 17, 1975. This Court’s decision in

Stanton was issued on April 15, 1975. It may be that the

court below did not sufficiently consider or reflect upon

Stanton when it voted to uphold Oklahoma’s singular 3.2

beer law. While the three-judge court opinion purports not

to rely on “old notions” but to rest upon a statistical reve-

lation of sex-linked proclivities, census data provides nu-

merical support of the same quality for the assumptions

operative in Stanton. If statistics show that young men

“drive more” and “drink more,” they also show young

women marry and relinquish education earlier. Yet surely

factual data on the “nesting” proclivity of women*® would

not have persuaded a majority of this Court to uphold

Utah’s differential.

In sum, the Utah decision in Stanton and the decision

below ultimately rely on the very same notion—that gross

categorization by gender is legitimate legislative action.

%* Appellees introduced Exhibits (7 and 8) concerning experi-

ence in two other states, Minnesota and Michigan. Significantly,

legislators in those states did not conceive of a sex/age line as a

rational response to a traffic safety problem.

%* See Transcript at 71 (Appendix at 91).

17

Indeed, the transcript of the three-judge court hearing”

strongly suggests that a familiar assumption, not fully

articulated in the opinion, influenced the decision—namely,

that it is “safe” to allow young women to drink 3.2 beer

because young women are (usually) more “mature” than

young men, and are (inclined to be) passive, unassertive,

“settled,” while young men are (generally) boys at

heart, (apt to be) adventurous, daring, even reckless.

But whether or not the court below wholly discarded “old

notions” about the earlier maturation of females, the

Oklahoma legislature may have had precisely those notions

in mind when it allowed females, but not males, to pur-

chase 3.2 beer and work in 3.2 beer parlors at 18." The

hypothesis that the legislature responded to “the common

myth” that “women mature faster than men” is at least as

plausible as any post-Stanton hypothesis defenders of the

3.2 beer sex/age differential might conceive.

The ruling below, in short, is a curiosity. It conflicts

with Stanton and virtually every other recent adjudication

concerning sex/age differentials in the law. See, e.g., Lamb

v. Brown, 456 F.2d 18 (10th Cir. 1972); Matter of Patricia

A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E. 2d 432 (1972);

Tang v. Ping, 209 N.W. 2d 624 (N. Dak. 1973); Harrigfeld

v. District Court, 95 Idaho 540, 511 P.2d 822 (1973);

Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775 (1974).

1° See Transcript at 68-78, 95-97 (Appendix at 89-96, 109-111).

17 See Transcript 68-70 (Appendix at 89-91). Indeed, the first

hypothesis tendered by the state officials as to the legislative ra-

tionale was “[t]hat there is a difference in the ages of maturity

between males and females, with males maturing at an older age.”

Motion to Dismiss at 7 (Appendix at 19).

18

C. Gender-based discrimination in laws regulating the

sale and consumption of alcohol is wholly without

support in currently viable precedent.

This case involves more than an impermissible sex/age

differential. It also involves the lore relating to women

and liquor—a combination that has fascinated lawmen for

generations. The legislation at issue is a manifestation,

with a bizarre twist, of the erstwhile propensity of legis-

latures to prescribe the conditions under which women and

alcohol may mix. In recent years, however, outside Okla-

homa, such legislation has been relegated to history’s scrap

heap. As the Court of Appeals for the First Circuit said

of once traditional judicial essays in this area, “the author-

ity of those precedents ... has waned with the meta-

morphosis of the attitudes which fed them. What was then

gallantry now appears Victorian condescension or even

misogyny, and this cultural evolution is now reflected in the

Constitution.” Women’s Liberation Union of Rhode Island

v. Israel, 512 F.2d 106, 109 (1st Cir. 1975).

The case at bar apart, this decade’s precedent unequivo-

cally rejects discrimination between men and women in

laws regulating the sale and consumption of alcohol. See

Women’s Liberation Union of Rhode Islamd v. Israel, supra;

White v. Fleming, 522 F.2d 730 (7th Cir. 1975) ; Daugherty

v. Daley, 370 F. Supp. 338 (N.D. Ill. 1974) (three-judge

court) ; Commonwealth v. Burke, 481 S.W.2d 52 (Ky. 1972) ;

Satl’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P.2d 529 (1971);

Paterson Tavern & Grill Owners Ass'n v. Hawthorne, 57

N.J. 180, 270 A.2d 628 (1970). In both result and reason-

ing, the judgment below is an isolated retrogression, pack-

aged in an opinion that jousts with conflicting decisions

but ultimately fails to offer a single supporting authority.

19

Only by wishing away current precedent and reaching

back more than a quarter of a century to Goesaert v.

Cleary, 335 U.S. 464 (1948), can Oklahoma conjure up sup-

port for a gender-based differential in the context of liquor

regulation. Once formidable authority for “a sharp line

between the sexes,” Goesaert is today an embarrassment

reflecting male/female role delineation “offensive to the

ethos of our society.” United States v. Dege, 364 U.S. 51,

at 53 (1960). Goesaert appears conspicuously in briefs

tendered below by the state officials, But significantly, the

three-judge court avoided citation to Goesaert, tied as that

decision so plainly is to “old notions” and “archaic or over-

broad generalizations.” See 399 F. Supp. at 1313.

The statute in Goesaert, prohibiting employment of

women as bartenders, was rationalized as protecting

females and the public against “moral and social prob-

lems.” 335 U.S. at 466. But suspicion lurked that “the real

impulse behind [the] legislation was an unchivalrous de-

sire of male bartenders to . . . monopolize the calling.”

335 U.S. at 467." In the instant case too, the purported

rationale is protection, ironically, protection of males and

the public against the vulnerabilities of the dominant sex.

But the acknowledged basis for the once pervasive 18

female/21 male age of majority differential’®® suggests

another perspective. Is it not probable that Oklahoma’s

legislators had in view likely coupling at the beer parlor—

18 See “Bartending Must Revert to Bartenders, Says the G.E.B.,”

in Catering Industry Employee (April 12, 1946 pp. 4-5), ex-

tracted in Babcock, Freedman, Norton & Ross, Sex Discrimination

and the Law 280 (1975).

1® See L. Kanowitz, Women and the Law 10-13 (1969) ; David-

son, Ginsburg & Kay, Sex-Based Discrimination 119-123 (1974).

20

the 21 year old male paired with a female two or three

years his junior?

It bears emphasis that no legislative history informed

the conjecture of the court below as to the lawmaker’s de-

sign. Post hoe attempts to hypothesize an appropriate

rationale, though once routinely accepted where gender

lines were at issue, are no longer immune from close scru-

tiny. Cf. Weinberger v. Wiesenfeld, supra, 420 U.S. at 648

n. 16. Moreover, no legislative design has been advanced

that would even remotely satisfy the constitutional require-

ment that, at the least, gender-based 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 legislation ....” Reed v. Reed, supra,

404 U.S. at 76. For gender is no more rational or less

arbitrary a criterion upon which to base liquor or traffic

safety laws than is religion or national origin.” If ethnic

identification were the criterion, however buttressed by

proof of drinking proclivities and preferences, the state

Officials would “concede error.”* Their willingness and

the three-judge court’s readiness to accept the gender line

as unobjectionable warrant prompt correction by this

Court.

In sum, the instant case provides an opportunity for this

Court explicitly to overrule Goesaert, a decision universally

criticized in commentary,” politely discarded by enlight-

0 See note 26, infra.

71 See Transcript at 79 (Appendix at 97-98).

#2 See, e.g., L. Kanowitz, Women and the Law 33-34 (1969);

Johnston, Jr. & Knapp, Sex Discrimination by Law: A Study in

Judicial Perspective, 46 N.Y.U. L. Rev. 675, 682-92 (1971).

21

ened jurists, overdue for formal burial. Cf. Taylor v.

Louisiana, 419 U.S. 522 (1975), overruling Hoyt v. Florida,

368 U.S. 57 (1961). Another opportunity seems unlikely

in view of the singularity of Oklahoma’s gender line and

the illegality of the Goesaert classification, as well as the

one in 37 Okla. Stat. §243 (18-20 year old females, but

not 18-20 year old males may be employed in places where

3.2 beer is sold for on-premises consumption), under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, and

state law analogs. See Sail’er Inn, Inc. v. Kirby, supra;

Rosenfeld vy. Southern Pacific Co., 444 F.2d 1219 (9th Cir.

1971).

D. Laws such as 37 Okla. Stat. §§ 241, 243, 245 shore

up artificial barriers to realization by men and

women of their full human potential and retard

society’s progress toward equal opportunity, free

from gender-based discrimination.

Oklahoma’s sex/age 3.2 beer line may appear at first

glance a sport, a ridiculous distinction.” In comparison to

other business vying for this Court’s attention, 37 Okla.

Stat. §§241, 243, 245 might be viewed as supplying comic

relief. Yet if this Oklahoma legislative action is not

checked, if the overbroad generalizations tendered in its

*® See Editorial, Tulsa Daily World, January 13, 1975, at 8-A:

Oklahoma’s ridiculous beer law has finally made the big

time ; it’s gone all the way up to the U.S. Supreme Court.

Per years it has been argued that this is a stupid dis-

tinction that, if it ever did have a justification, it was long

outdated. It is worse than obsolete; it is laughable... .

Let us hope the Justices dispose of it quickly, putting it

quietly out of its misery.

22

support are allowed to stand as proof adequate to justify

a gender-based criterion, then this Court will have turned

back the clock to the day when “anything goes” was the

approach to line drawing by gender. For any defender of

a gender line, with a modicum of sophistication, could avoid

express reliance on “old notions” and, instead, invoke sta-

tistics to “demonstrate the facts of life.” ** But this Court’s

recent precedent should stand as a bulwark against “the

imposition of special disabilities upon the members of a

particular sex because of their sex.” Frontiero v. Richard-

son, supra, 411 U.S. at 686. For “[w]here the relation

between characteristic and evil to be prevented” is as “tenu-

ous” as it is here, “courts must look closely at that char-

acteristic lest outdated social stereotypes result in invidi-

ous laws or practices.” Sail’er Inn, Inc. v. Kirby, supra,

5 Cal. 3d at 18, 485 P.2d at 540.

On its face, Oklahoma’s 3.2 beer differential accords

young women a liberty withheld from young men. Upon

deeper inspection, however, the discrimination is revealed

as simply another manifestation of traditional attitudes

and prejudices about the expected behavior and roles of

the two sexes in our society, part of the myriad signals

and messages that daily uuderscore the notion of men as

society’s active members, women as men’s quiescent com-

panions, members of the “other” or second sex. S. de Beau-

voir, Second Sex (1949); see E. Maccoby & C. Jacklin,

Psychology of Sex Differences (1974) ; W. Chafe, The Amer-

ican Woman (1972); Broverman, Vogel, Broverman,

Clarkson & Rosencrantz, Sex-Role Stereotypes: A Current

Appraisal, 28 J. Social Issues 59 (1972).

** Cf. Lamb v. Brown, 456 F.2d 18, at 20 (10th Cir. 1972).

=

23

Laws such as 37 Okla. Stat. §§241, 243, 245 serve only to

shore up artificial barriers to full realization by men and

women of their human potential, and to retard progress to-

ward equal opportunity, free from gender-based discrimina-

tion. Ultimately harmful to women by casting the weight of

the state on the side of traditional notions concerning

woman’s behavior and her relation to man, such laws have

no place in a nation preparing to celebrate a 200-year com-

mitment to equal justice under law.

Il.

The twenty-first amendment does not insulate from

close scrutiny Oklahoma’s separation of 3.2 beer pur-

chasers along gender lines.

As a “main reason” for its decision, the court below

proffered, “the statutes in question concern the regulation

of alcoholic beverages—an area where the State’s police

powers are strengthened by the Twenty-first Amendment.”

399 F. Supp. at 1307. Ambivalent, if not schizophrenic on

this point, the court also asserted, the twenty-first amend-

ment “does not call for the use of a less stringent equal

protection standard than would otherwise apply,” “the

standards of review [the Equal Protection Clause] man-

dates are not relaxed.” 399 F. Supp. at 1307-1308.

Beyond question, Oklahoma has broad authority to re-

quire effectively the sale and service of alcoholic beverages.

But the twenty-first amendment is not a talisman insulating

from careful review legislative resort to gross classification

by gender. This has been the clear understanding of fed-

eral and state jurists attentive to this Court’s precedent in

the current decade. See, e.g., Women’s Liberation Union of

24

Rhode Island v. Israel, 512 F.2d 106 (1st Cir. 1975); White

v. Fleming, 522 F.2d 730 (7th Cir. 1975); Daugherty v.

Daley, 370 F. Supp. 338 (N.D. Ll. 1974) (three-judge court) ;

cf. Commonwealth v. Burke, 481 S.W.2d 52 (Ky. 1972);

Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P.2d 529 (1971);

Paterson Tavern & Grill Owners Ass'n. vy. Hawthorne, 57

N.J. 180, 270 A.2d 628 (1975).* Just as drinking preferences

and proclivities associated with a particular ethnic group

or social class would be perceived as an unfair and insub-

stantial basis for a beverage sale or service prohibition

directed to that group or class (see Transcript at 79, Ap-

pendix at 97-98) so a gender-based” classification should

2° As to the precedential value of Goesaert v. Cleary, 335 US.

464 (1948), see pp. 19-21, supra. For an account of pre-Reed

judicial performance, see Johnston, Jr. & Knapp, Sex Discrimina-

tion by Law: A Study in Judicial Perspective, 46 N.Y.U. L. Rev.

675, 682-92, 702-708 (1971).

2° The “facts of life” the state officials sought to demonstrate,

ef. Lamb v. Brown, 456 F.2d 18, at 20 (10th Cir. 1972), might

have been demonstrated more dramatically with respect to ethnic

and religious groups. Yet surely the long-recognized and well-

documented ethnic and religious differences in drinking habits

and problems would not justify legislation using ethnic identifi-

eation or religion as the criterion for a 3.2 beer or any other

beverage regulation. See, e.g., Wechsler, Thum, Demone & Kasey,

Religious-Ethnie Differences in Alcohol Consumption, 11 J. of

Health & Social Behavior 21 (1969) ; Wechsler, Thum, Demone &

Dwinnell, Social Characteristics and BAC Level, 33 Quarterly

Journal of Studies on Alcohol 132, 143-44 (1972) (Jews and

Italian Catholics consistently manifest the lowest frequencies of

positive BAC readings, highest frequencies oceur among native-

born, Canadian, and Irish Catholics; in the 16-25 age groups,

native-born Catholics had the highest proportion with positive

BACs (19% in the study reported), Jews and Italian Catholics,

the lowest (5% )). Among adolescents, conspicuous differences ap-

pear as well. See Williams, Brehm, Cavanaugh, Moore & Ecker-

man, Final Report of Research Triangle Institute Center for the

Study of Adolescent Drinking Behavior, Attitudes and Correlates 7

(National Institute on Alcohol Abuse and Alcoholism, U.S. De-

partment of Health, Education, and Welfare, April 1975) (re-

CSE ee

25

be recognized as an inappropriate, invidious means to the

legislative end of rational regulation in the public interest.

Several times in the course of its opinion, the court below

found “reinforcement” in this Court’s decision in California

v. LaRue, 409 U.S. 109 (1972). LaRue upheld state regu-

lations prohibiting nude dancing and explicit sexual acts

in establishments licensed to sell liquor by the drink. But

whatever support the twenty-first amendment provides for

state action explicitly and precisely directed to the com-

mingling of live sex and liquor,” that brand of “sex” is

not the issue in the case at bar.”

Il.

The statistical proof on which the court below relied

fails to establish that the hypothesized legislative objec-

tive (protection of young men and the public, partic-

ularly on the road) is fairly, substantially or sensibly

served by a 3.2 beer sex/age line.

Evidence “entirely in the form of statistics,” embodied

in eight exhibits, was the sole proof presented by the state

officials. (Transcript at 5, Appendix at 43.) As developed

porting percentage of adolescent heavy drinkers by ethnic group

as follows: Black, 5.7% ; White 10.7% ; American Indian, 16.5%).

See also Kandel, Single & Kessler, The Epidemiology of Drug

Use Among New York State High School Students, 66 Am. J.

Pub. Health 43, Table 2 (Jan. 1976).

** See Comments, 1975 Wis. L. Rev. 161; 24 Syr. L. Rev. 1131

(1973).

** For impressionable minds, the word “sex” may conjure up

images of the kind this Court has left to “contemporary com-

munity standards.” See Paris Adult Theater I v. Slaton, 413 US.

49 (1973). Gender, the grammar book term generally used in this

brief, has a neutral, clinical tone that may ward off distracting

associations.

26

herein at pp. 13-23, supra, even if this proof did the service

claimed for it, i.e., even if the proof established that,

in general, males within the 18-20 age group “drive more,

drink more and commit more alcohol-related offenses”

(Transcript at 5, Appendix at 43), such gross generaliza-

tions do not provide license for line drawing by gender.

In this section, it will be demonstrated that the state offi-

cials’ presentation does not do the service claimed for it.

Further, the presentation falls far short of establishing

a fair and substantial relationship between the hypothe-

sized legislative end (traffic safety) and the statutory

criterion employed (a sex/age 3.2 beer line).

A. Oklahoma arrest statistics.

State officials’ Exhibits 1 and 2 (described in 399 F. Supp.

at 1309, excerpts reproduced in 399 F. Supp. at 1314-1315)

present certain arrest statistics for 1) Oklahoma, covering

the last four months of 1973, and 2) Oklahoma City,

covering the year 1973. These exhibits show that, for the

time periods covered, male arrests for “driving under the

influence” and “drunkenness” substantially exceeded female

arrests for those offenses.*° But that is all they show.

Unadorned arrest statistics hardly constitute proof that

“driving under the influence” and “drunkenness” in the

population of 18-20 year olds occur peculiarly in males.

** These statistics post-dated the 1972 legislative action here at

issue. There is no indication that statistics of any kind informed

or influenced the legislative judgment that 18-20 year old males,

but not 18-20 year old females, were vulnerable to the hazards

of 3.2 beer. See 399 F. Supp. at 1311 n. 6.

°° Both State and City figures show that male involvement in-

creases with age, i.¢., the percentage of female arrests is highest

in the 18-20 age range, while the percentage of male arrests is

considerably higher at 21 and over than it is at 18. See 399

F. Supp. at 1309.

27

Among glaring deficiencies in the attempt to associate

alcohol-related offenses with young men and 3.2 beer drink-

ing: no evidence whatever was offered as to dispositions

or convictions, bare arrests alone are recited;* no indica-

tion is offered of the number of male and female individuals

arrested; not a single arrest is attributed to 3.2 beer drink-

ing; no attempt is made to grapple with the “chivalry

factor,” i.e., the documented reality that for the very same

behavior, the male may be arrested, while the female is

escorted home, perhaps with a fatherly warning.

As to the inference of offense from arrest, this Court

said in Schware v. Board of Bar Examiners, 353 U.S. 232,

241 (1957), “The mere fact that a man has been arrested

has very little, if any, probative value in showing that he

has engaged in any misconduct. An arrest shows nothing

more than that someone probably suspected the person

apprehended of an offense.” See also Gregory v. Intton

Systems, Inc., 316 F. Supp. 401 (C.D. Calif. 1970) (be-

cause of general societal practices, use of arrest records in

hiring decisions discriminates on race grounds); Menard

v. Mitchell, 328 F. Supp. 718, at 724 (D.D.C. 1971), rev’d

on other grounds, 498 F.2d 1017 (D.C. Cir. 1974) (“[OJnly

a conviction carries legal significance as to a person’s in-

volvement in criminal behavior.”) ; McCormick, Evidence

§43 at 85 (Cleary ed. 1972).

Moreover, even as arrest indications the statistics are

opaque: they do not account for multiple arrests. Forty-

seven arrests of eighteen year-old males in Oklahoma City

*1 Because it would have been burdensome to do so, Oklahoma

law enforcement officers did “not even attempt to keep disposi-

tions as to age groups.” Transcript at 26-27 (Appendix at 59).

Cf. Transcript at 9 (Appendix at 46-47).

28

could mean 47 different young men were arrested, or one

young man was arrested 47 times, or something in between.

In short, the arrest figures do not even negate the pos-

sibility that the disproportion is attributable to multiple

arrests on the male side, rather than to marked disparity

in the number of males and females arrested. Additionally,

the arrest statistics demonstrate no relationship between

the alleged offense and drinking 3.2 beer, the prohibition

which the statistics purport to support. In view of the

relative potencies of the beverages, arrestees’ alcohol asso-

ciation, if any, might more likely involve 100-proof vodka

than “nonintoxicating” 3.2 beer.

Furthermore, Exhibits 1 and 2 tell a familiar story. Na-

tional arrest statistics for all age groups and most offenses

reflect a similar pattern. For example, in 1964, while the

sex ratio varied considerably by type of offense, the average

arrest ratio of males to females was 7.5 to 1. See Reckless

& Kay, The Female Offender 4 (1967). See also Nagel &

Weitzman, Women as Litigants, 23 Hastings L. J. 171

(1971). Viewed in this light, Oklahoma's arrest figures al-

most certainly suggest more about the conduct and attitudes

of the state’s police officers than they do about the 3.2 beer

drinking habits of young men and women. For prime

among factors identified as relevant to the underinvolve-

ment of women in officially-acted-upon crime is the “chiv-

alry factor,” i.e., men’s willingness to cover up women’s

crimes, and the unwillingness of the public and law enforce-

ment officers to hold women accountable for criminal activ-

ity. Reckless & Kay, supra, at 13."

* Paternalism in the criminal justice system and stereotypical

views on women’s nature do not always operate benignly in

women’s favor. See, ¢.g., New Jersey v. Chambers, 63 N.J. 287,

307 A.2d 78 (1973) ; Nagel & Weitzman, supra; Note, The Sexual

Segregation of American Prisons, 82 Yale L. J. 1229 (1973).

29

B. Oklahoma traffic death and injury statistics.

State officials’ Exhibits 4 and 5 indicate the number of

persons killed and injured in 1972 and 1973 Oklahoma motor

vehicle traffic collisions. Youths 17-21 are overrepresented

in these statistics; for all age groups, the number of males

exceeds the number of females.* Although presumably in-

troduced to illustrate the “evil” the legislatare sought to

prevent, as the state officials themselves acknowledged, these

Exhibits are not “specifically on point” (Transcript at 37,

Appendix at 67), for they supply no indication whatever of

alcohol involvement in collisions.* (Transcript at 36, Ap-

pendix at 66.) Indeed, closer examination of the state offi-

cials’ Exhibits should have demonstrated that overrepre-

sentation of young persons in collisions is not occasioned

by alcohol use:

If younger drivers were involved in more collisions

than older drivers because of the excessive use of alco-

hol, it would be expected that: (a) young drivers would

show a higher frequency of driving-after-drinking than

older drivers; and (b) that young drivers would have

88 However, if state officials’ Exhibit 3 is any guide to relative

male/female road use, then the 17-21 female death rate is about

the same as the male rate, while the 17-21 female injury rate is

substantially higher than the male rate. J.e., the 1972 roadside

survey population reported in Exhibit 3 was 78% male, 22%

female. 399 F. Supp. at 1309. Females accounted for 23% of

traffic deaths in the 17-21 age group that year, and 40% of traffic

injuries. 399 F. Supp. at 1320 (Exhibit 4).

°* For all these Exhibits reveal (pedestrian, passenger and driver

death and injuries are lumped together in the portions of the

Exhibits excerpted by the court below, 399 F. Supp. at 1320-

1321), all collision victims may have been free from fault, and all

persons responsible for the deaths and injuries may have been

18-20 female 3.2 beer drinkers.

30

a worse collision-involvement index among all drivers,

whether they had been drinking or not, than among

alcohol-free drivers. A comparison of Tables 7 and 8

shows that this is not true. (Emphasis supplied. )

Proceedings of the Joint Conference on Alcohol] Abuse and

Alcoholism, February 21-23, 1972, Defendants’ (state offi-

cials’) Exhibit 8 at 120, 124 (Appendix at 213-214). In

short, Oklahoma’s age- but not alcohol-correlated collision

statistics suggest a relationship between accidents and driv-

ing experience. They might well support a compulsory

driver-training law, but they provide no basis for a 3.2 beer

sex/age classification.

C. National, Minnesota and Michigan statistics

and reports.

Exhibit 6 (Appendix at 182-184) is an FBI report show-

ing an increase nationwide in arrests for “driving under

the influence.” It reveals no convictions, shows nothing

about 3.2 beer drinking and does not present any sex/age

breakdown for 18-20 year olds. Exhibit 7 (Appendix at

185-207), a Minnesota Department of Public Safety report,

was introduced to show “Oklahoma statistics are at least

in line with statistics in other states.” (Transcript at 41,

Appendix at 70.) Minnesota maintains no sex/age line

for 3.2 beer or, indeed, any other beverage. Exhibit 8 (Ap-

pendix at 208-226), a federally-sponsored conference report,

was introduced for its reference to a Michigan study. A

portion of the Michigan study is quoted in the opinion be-

. ~low. 399 F. Supp. at 1310. Michigan maintains no sex/age

line for 3.2 beer or, indeed, any other beverage. As already

noted,** the Michigan report, in a passage skipped over by

8° See p. 29, supra.

31

the court below, explains that younger drivers are not in-

volved in more collisions than older drivers because of the

excessive use of alcohol.

D. A roadside survey in Oklahoma City.

The remaining item in appellees’ proof, state officials’

Exhibit 3, figures in the opinion below as the piéce de résis-

tance. This Exhibit summarizes the results of a voluntary

roadside survey of drivers in selected locations in Oklahoma

City during the post-work hours 6:00 p.m. to 10:00 p.m. and

11:00 p.m. to 3:00 a.m. in August of 1972 and 1973. Drivers

were asked: 1) Do you drink? 2) If you do, what is your

drink preference (beer,*® wine, liquor)? 3) Did you drink

in the last two hours? Survey participants were tested for

Blood Aleohol Concentrations (BACs). No inquiry was

made as to 3.2 beer drinking. The survey provides no

answers at all to the questions: 1) Did the drivers who

stated a preference for beer prefer “nonintoxicating” 3.2

beer over other alcohol beverages? 2) Did any driver con-

sume 3.2 beer within the two hours preceding the survey?

3) Had any driver who registered a positive BAC imbibed

3.2 beer? Whatever limited purpose the survey may have

been designed to serve,*’ Exhibit 3 is highly questionable

as an indicator of the gender make-up of Oklahoma’s driv-

°° The court below incorrectly reports that in 1972, 84% of the

under-20 males surveyed, and 77% of the under-20 females stated

that their drirk preference was beer. 399 F. Supp. at 1309. Tak-

ing into acqpunt yondrinkers in the survey population, 58.8%

of the under-20 males and 52.9% of the under-20 females pre-

ferred beer.

°* No testimony was offered as to the purpose of the survey.

No basis was laid for any inference that the small male sample

(243 males wnder-20 in 1972, 238 in 1973) and minimal female

sample (70 females under-20 in 1972, 68 in 1973) displayed char-

acteristics that may be generalized to the under-20 Oklahoma driv-

32

ing population, and as a predictor of gender-based differ-

ences in conduct related to drinking and driving. The ex-

hibit provides no elucidation of any kind as to conduct re-

lated to drinking 3.2 beer and driving.

Males accounted for 52.9% of Oklahoma’s driving popu-

lation in 1972, and 52.5% in 1973. U.S. Department of

Transportation, Federal Highway Administration, Drivers

Licenses—1972 and 1973.°%° The sample of drivers inter-

viewed for the Oklahoma City survey was 77.8% male in

1972 and 76.8% male in 1973. Similar disproportions ap-

pear in the sample of drivers in the 18-20 age range. Al-

though it is reasonable to anticipate more drinking in night-

time hours, it may well be that a daytime hours survey

would produce a higher percentage of female drivers and

a significantly different distribution in the positive BAC

columns.** Considering the small size of the survey popu-

ing population. In addition to the small size of the under-20

survey population, a numerical discrepancy, unexplained in the

Exhibit or Transcript, casts further doubt on the survey’s utility:

the survey reports 243 as the total number of under-20 males

interviewed in 1972, but the BAC columns for that group account

in numbers and percentages for 253 males. Further, one-third of

the “minor” male population covered by Okla. Stat. §§241, 243,

245 (20-year olds) ranks as adults in the survey.

** Drivers Licenses—1972, Table DL-1A, p. 6 (18-20 drivers at

Table DL-21, Sheet 4) ; Drivers Licenses—1973, Table DL-1A, p. 8

(18-20 drivers at Table DL-21, p. 14). The most recently pub-

lished national licensed drivers statistics, covering the year 1974,

show these figures for Oklahoma: total licensed drivers, 1,711,805

(52.21% male); 18 oy! old drivers, 45,565 (53.29% male); 19

year old drivers, 46,155 (53.03% male) ; 20 year old drivers, 45,191

(52.81% male). U.S. Department of Transportation, Drivers Li-

censes—1974, Table DL-21, Sheet 4.

*° Since the survey occurred after work hours and in a city, the

sample does not reflect daytime suburban housewife drinking/

driving behavior for 18-20 year olds or any other age group.

Further, the sample included drivers of “pickup trucks and an

occasional motorcycle,” drivers more likely to be male. See Exhibit

3, cover letter.

33

lation, any unprovided for difference in male/female drink-

ing/driving habits, such as time of day, yielding even a

very few more women on the road with positive BACs,

would drastically alter the female percentages and, in turn,

the comparison with the male group. For example, the

court below observed: “Of those drivers under 20 [in the

1972 survey] who had a BAC of greater than .01%, 29.7%

of the males and 14.3% of the females had a BAC equal to,

or greater than, .05%.” 399 F. Supp. at 1309. Restating

these figures in terms of the total under-20 survey group,

4.35% of the males and 1.43% of the females had a BAC

equal to, or greater than .05%. Should a change from night-

time to daytime survey add two more females to the .05%

BAC category, the female percentage (4.29%) would nearly

match the male’s.

In addition, far from supporting distinctive treatment

of young men, the survey suggests that age may be more

relevant to the drinking behavior ‘of female drivers. For

example, in 1972, the percentages of under-20 maies and

females who answered yes to the question, “Do you drink,”

are in the same range: 70.4% for males, 68.6% for females.

But when young people are compared with their elders

(persons 20 and over), young women stand out as the group

distinctive in attraction to alcohol: 76.8% of the older

men, but only 57.7% of the older women reported them-

selves as drinkers.

In sum, the state officials have utterly failed to demon-

strate that the supposed legislative objective (protection of

young men and the public from weaknesses male flesh is

heir to) is fairly, substantially and sensibly served by a

3.2 beer sex/age line. On the contrary, the gender criterion

retained in 37 Okla. Stat. §4241, 243, 245 is a paradoxical

34

remnant of the day when sharp lines vetween the sexes

were routinely drawn by the legislature, and just as rou-

tinely upheld by the judiciary.

CONCLUSION

For the reasons stated above, the decision of the District

Court for the Western District of Oklahoma should be re-

versed and the gender line drawn in 37 Okla. Stat. §4$241,

243 and 245 should be declared unconstitutional.

Respectfully submitted,

Rut Baper GinsBurG

Metvin L. Wuur

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

Attorneys for amicus gratefully acknowledge the assistance pro-

vided in the preparation of this brief by Mary Elizabeth Freeman,

Sheryl McCarthy, Elaine Scheib and Lorraine Massaro, students

at Columbia Law School.