# Amicus Brief — Craig v. Boren

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1248%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 190

## Text

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Supreme Court, U.& ,.
FILED *

—_— FEB 26 1976
Supreme Court of the United States &. cvcxk |

ee ee ee ee

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
Is ersinesnameneonn )
a esnemaonensenanacn 6
ae ices enccececemensienenmmmennenccanees 6
acre aaeertncseenenentenencenccnenennennees 6
I sssustioumeeuoune 7
Ee 7
Ee 10

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1248%3A7. Public record. Not legal advice.