Beer and Gender Equality

Buckle your seat belts its time for the Notorious RBG.

While the 14th amendment granted equal protection under the law for everyone regardless of gender, that didn’t always make it down to the state level.  It wasn’t until Craig v. Boren in 1976 that the court ruled that a state law was in violation of the 14th.

At question was an Oklahoma law which set the age at which you could buy beer under 3.2% alcohol.  The state law limited men to buying beer at 21 but allowed women to buy it as young as 18.  A pre-law student at the local university created the suit as a project and asked a local convenience store owner to sign on as the plaintiff.  The legal argument was that women were “more responsible” and could be counted on not to over drink.

The case went through the normal appeals process and wound up in front of the Warren Berger Supreme court.  The lawyer for the appellants was not experienced with the supreme court and made a lot of weird arguments.  Fortunately for him, Ruth Bader Ginsburg happened to be arguing another case the same day.

Before she was a Supreme Court Justice, Ruth worked for the ACLU as part of their gender equality team.  Her somewhat radical notion at the time was that they should be focusing not on cases of discrimination against women, but instead on cases of discrimination against men.  Her premise was that any case of male discrimination was based at the core on a fundamental discrimination against women.

If men were denied child custody it was because women were expected to be the primary caregivers regardless of their own feelings.  If men were denied access to jobs in teaching or nursing it was because women were designated as the caring and teaching sex.

When Craig’s lawyer failed to make his point the Justices took the opportunity of having RBG in the court that day to ask her what she thought about it, because she was already well known to the court as someone familiar with the issues.  Ruth didn’t unload, but she did give them a stand up earful of why any form of discrimination was worth giving a second look.

At issue is the idea of scrutiny.  Most laws get passed with the idea that the government passing the law has a reason to have the law.  If there is a law against cutting down a tree in your yard then there is probably a reason for that.  A law against setting up your own lottery, also probably a reason for that.

It doesn’t have to be a “Good” reason, but the understanding is that people don’t pass laws for spite, or out of bad faith.  Except when it comes to laws targeting specific groups.  This is how government weighs the difference between your individual constitutional rights and the right of government to promote order and commerce.

At the time of the case there were two levels.  Rational Basis and Strict Scrutiny.  Rational basis was the “I’m sure they have a reason” version.  If the law didn’t target any one group specifically it got a pass as having a rational basis.  Under strict scrutiny a law that targets a Suspect class gets examined to look at the results and the motivation of the law.  A suspect class generally means “The class must have experienced a history of discrimination, must be definable as a group based on “obvious, immutable, or distinguishing characteristics,” be a minority or be “politically powerless.”

Women weren’t generally considered a suspect class in the 60’s and 70’s so review of state laws wasn’t given the higher standard of strict scrutiny.  Craig v Boren changed that, with the court deciding that while it may not need strict scrutiny the law needed to be reviewed with an eye to the reasons behind the law.  So they invented a new label and called it Intermediate Scrutiny.  

With intermediate Scrutiny any law can be challenged and the government has to show that if there is a discrimination based on sex that the government has some compelling need or interest in passing the law with the discrimination intact.  

So thanks to the efforts of beer loving Fraternity Brothers and a selfless shop owner the sexes have the same rights to try to get wasted on beer with the alcohol equivalent of a moist towelette.

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