U.S. Supreme Court Craig v. Boren, 429
U.S. 190 (1976) Craig v. Boren No. 75-628 Argued October 5,
1976 Decided December 20,
1976 429
U.S. 190 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
OKLAHOMA Syllabus Appellant Craig, a male then between 18 and 21 years old, and
appellant Whitener, a licensed vendor of 3.2% beer, brought this
action for declaratory and injunctive relief, claiming that an
Oklahoma statutory scheme prohibiting the sale of "nonintoxicating"
3.2% beer to males under the age of 21 and to females under the age
of 18 constituted a gender-based discrimination that denied to
males 18-20 years of age the equal protection of the laws.
Recognizing that Reed v. Reed, 404 U. S.
71 , and later cases establish that classification by
gender must substantially further important governmental
objectives, a three-judge District Court held that appellees'
statistical evidence regarding young males' drunk-driving arrests
and traffic injuries demonstrated that the gender-based
discrimination was substantially related to the achievement of
traffic safety on Oklahoma roads. Held: 1. Since only declaratory and injunctive relief against
enforcement of the gender-based differential was sought, the
controversy has been mooted as to Craig, who became 21 after this
Court had noted probable jurisdiction. See, e.g., DeFunis v.
Odegaard, 416 U. S. 312 . P. 429 U. S.
192 .

															2. Whitener has standing to make the equal protection challenge.
Pp. 429 U. S.
192 -197.

															(a) No prudential objective thought to be served by limitations
of jus tertii standing can be furthered here, where the
lower court already has entertained the constitutional challenge
and the parties have sought resolution of the constitutional issue.
Pp. 429 U. S.
193 -194.

															(b) Whitener in any event independently has established
third-party standing. She suffers "injury in fact," since the
challenged statutory provisions are addressed to vendors like her,
who either must obey the statutory provisions and incur economic
injury or disobey the statute and suffer sanctions. In such
circumstances, vendors may resist efforts to restrict their
operations by advocating the rights of third parties seeking access
to their market. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 . Pp. 429 U. S.
194 -197.

															3. Oklahoma's gender-based differential constitutes an invidious
discrimination against males 18-20 years of age in violation of the
Equal Protection Clause. Appellees' statistics (the most relevant
of which Page 429 U. S. 191 show only that .18% of females and 2% of males in the
18-20-year-old age group were arrested for driving while under the
influence of liquor) do not warrant the conclusion that sex
represents an accurate proxy for the regulation of drinking and
driving. Pp. 429 U. S.
199 -204.

															4. The operation of the Twenty-first Amendment does not alter
the application of equal protection standards that otherwise govern
this case. The Court has never recognized that application of that
Amendment can defeat an otherwise established claim under the Equal
Protection Clause, the principles of which cannot be rendered
inapplicable here by reliance upon statistically measured but
loose-fitting generalities concerning the drinking tendencies of
aggregate groups. Pp. 429 U. S.
204 -210. 399
F. Supp. 1304 , reversed.

															BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, POWELL, and STEVENS, JJ., joined, and in all but Part
II-D of which BLACKMUN, J., joined. POWELL, J., post, p. 429 U. S. 210 ,
and STEVENS, J., post, p. 429 U. S. 211 ,
filed concurring opinions. BLACKMUN, J., filed a statement
concurring in part, post, p. 429 U. S. 214 .
STEWART, J., filed an opinion concurring in the judgment, post, p. 429 U. S. 214 .
BURGER, C.J., post, p. 429 U. S. 215 ,
and REHNQUIST, J., post, p. 429 U. S. 217 ,
filed dissenting opinions.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															The interaction of two sections of an Oklahoma statute,
Okla.Stat., Tit. 37, § 241 and 245 (1958 and Supp. 1976), [ Footnote 1 ] Page 429 U. S. 192 prohibits the sale of "nonintoxicating" 3.2% beer to males under
the age of 21 and to females under the age of 18. The question to
be decided is whether such a gender-based differential constitutes
a denial to males 18-20 years of age of the equal protection of the
laws in violation of the Fourteenth Amendment.

															This action was brought in the District Court for the Western
District of Oklahoma on December 20, 1972, by appellant Craig, a
male then between 18 and 21 years of age, and by appellant
Whitener, a licensed vendor of 3.2% beer. The complaint sought
declaratory and injunctive relief against enforcement of the
gender-based differential on the ground that it constituted
invidious discrimination against males 18-20 years of age. A
three-judge court convened under 28 U.S.C. § 2281 sustained the
constitutionality of the statutory differential and dismissed the
action. 399 F.
Supp. 1304 (1975). We noted probable jurisdiction of
appellants' appeal, 423 U.S. 1047 (1976). We reverse. I We first address a preliminary question of standing. Appellant
Craig attained the age of 21 after we noted probable jurisdiction.
Therefore, since only declaratory and injunctive relief against
enforcement of the gender-based differential is sought, the
controversy has been rendered moot as to Craig. See, e.g.,
DeFunis v. Odegaard, 416 U. S. 312 (1974). [ Footnote 2 ] The
question thus arises whether appellant Whitener, the licensed
vendor of 3.2% beer, who has a live controversy against enforcement
of the statute, may rely upon the equal protection objections of
males 18-20 years of age to establish her claim of Page 429 U. S. 193 unconstitutionality of the age-sex differential. We conclude
that she may.

															Initially, it should be noted that, despite having had the
opportunity to do so, [ Footnote
3 ] appellees never raised before the District Court any
objection to Whitener's reliance upon the claimed unequal treatment
of 18-20-year-old males as the premise of her equal protection
challenge to Oklahoma's 3.2 beer law. See 399 F. Supp. at
1306 n. 1. Indeed, at oral argument, Oklahoma acknowledged that
appellees always "presumed" that the vendor, subject to sanctions
and loss of license for violation of the statute, was a proper
party in interest to object to the enforcement of the sex-based
regulatory provision. Tr. of Oral Arg. 41. While such a concession
certainly would not be controlling upon the reach of this Court's
constitutional authority to exercise jurisdiction under Art. III, see, e.g., Sierra Club v. Morton, 405 U.
S. 727 , 405 U. S. 732 n. 3 (1972); cf. Data Processing Service v. Camp, 397 U. S. 150 , 397 U. S. 151 (1970), our decisions have settled that limitations on a litigant's
assertion of jus tertii are not constitutionally mandated,
but rather stem from a salutary "rule of slf-restraint" designed to
minimize unwarranted intervention into controversies where the
applicable constitutional questions are ill-defined and
speculative. See, e.g., Barrows v. Jackson, 346 U.
S. 249 , 346 U. S. 255 ,
257 (1953); see also Singleton v. Wulff, 428 U.
S. 106 , 428 U. S.
123 -124 (1976) (POWELL, J., dissenting). These
prudential objectives, thought to be enhanced by restrictions on
third-party standing, cannot be furthered here, where the lower
court already has entertained the relevant constitutional challenge
and the parties have sought -- or at least have never resisted --
an authoritative constitutional determination. In such
circumstances, a decision by us to forgo Page 429 U. S. 194 consideration of the constitutional merits in order to await the
initiation of a new challenge to the statute by injured third
parties would be impermissibly to foster repetitive and
time-consuming litigation under the guise of caution and prudence.
Moreover, insofar as the applicable constitutional questions have
been and continue to be presented vigorously and "cogently," Holden v. Hardy, 169 U. S. 366 , 169 U. S. 397 (1898), the denial of jus tertii standing in deference to
a direct class suit can serve no functional purpose. Our Brother
BLACKMUN's comment is pertinent:

															"[I]t may be that a class could be assembled, whose fluid
membership always included some [males] with live claims. But if
the assertion of the right is to be 'representative' to such an
extent anyway, there seems little loss in terms of effective
advocacy from allowing its assertion by"

															the present jus tertii champion. Singleton v.
Wulff, supra at 428 U. S.
117 -118.

															In any event, we conclude that appellant Whitener has
established independently her claim to assert jus tertii standing. The operation of §§ 241 and 245 plainly has inflicted
"injury in fact" upon appellant sufficient to guarantee her
"concrete adverseness," Baker v. Carr, 369 U.
S. 186 , 369 U. S. 204 (1962), and to satisfy the constitutionally based standing
requirements imposed by Art. III. The legal duties created by the
statutory sections under challenge are addressed directly to
vendors such as appellant. She is obliged either to heed the
statutory discrimination, thereby incurring a direct economic
injury through the constriction of her buyers' market, or to
disobey the statutory command and suffer, in the words of
Oklahoma's Assistant Attorney General, "sanctions and perhaps loss
of license." Tr. of Oral Arg. 41. This Court repeatedly has
recognized that such injuries establish the threshold requirements
of a "case or controversy" mandated by Art. III. See, e.g.,
Singleton v. Wulff, supra at 428 U. S. 113 (doctors who receive payments for their abortion services are
"classically adverse" to government as payer); Sullivan
v. Little Hunting Page 429 U. S. 195 Park, 396 U. S. 229 , 396 U. S. 237 (1969); Barrows v. Jackson, supra at 346 U. S.
255 -256.

															As a vendor with standing to challenge the lawfulness of §§ 241
and 245, appellant Whitener is entitled to assert those concomitant
rights of third parties that would be "diluted or adversely
affected" should her constitutional challenge fail and the statutes
remain in force. Griswold v. Connecticut, 381 U.
S. 479 , 381 U. S. 481 (1965); see Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974). Otherwise, the
threatened imposition of governmental sanctions might deter
appellant Whitener and other similarly situated vendor from selling
3.2% beer to young males, thereby ensuring that "enforcement of the
challenged restriction against the [vendor] would result indirectly
in the violation of third parties' rights." Warth v.
Seldin, 422 U. S. 490 , 422 U. S. 510 (1975). Accordingly, vendors and those in like positions have been
uniformly permitted to resist efforts at restricting their
operations by acting as advocates of the rights of third parties
who seek access to their market or function. See, e.g.,
Eisenstadt v. Baird, 405 U. S. 438 (1972); Sullivan v. Little Hunting Park, supra; Barrows v.
Jackson, supra. [ Footnote
4 ] Page 429 U. S. 196 Indeed, the jus tertii question raised here is answered
by our disposition of a like argument in Eisenstadt v. Baird,
supra. There, as here, a state statute imposed legal duties
and disabilities upon the claimant, who was convicted of
distributing a package of contraceptive foam to a third party.
[ Footnote 5 ] Since the statute
was directed at Baird and penalized his conduct, the Court did not
hesitate -- again as here -- to conclude that the "case or
controversy" requirement of Art. III was satisfied. 405 U.S. at 405 U. S. 443 .
In considering Baird's constitutional objections, the Court fully
recognized his standing to defend the privacy interests of third
parties. Deemed crucial to the decision to permit jus
tertii standing was the recognition of "the impact of the
litigation on the third-party interests." Id. at 405 U. S. 445 .
Just as the defeat of Baird's suit and the "[e]nforcement of the
Massachusetts statute will materially impair the ability of single
persons to obtain contraceptives," id. at 405 U. S. 446 ,
so too the failure of Whitener to prevail in this suit and the
continued enforcement of §§ 241 and 245 will "materially impair the
ability of" males 18-20 years of age to purchase 3.2% beer despite
their classification by an overt gender-based criterion. Similarly,
just as the Massachusetts law in Eisenstadt "prohibit[ed], Page 429 U. S. 197 not use, but distribution," 405 U.S. at 405 U. S. 446 ,
and consequently the least awkward challenger was one in Baird's
position who was subject to that proscription, the law challenged
here explicitly regulates the sale, rather than use, of 3.2 beer,
thus leaving a vendor as the obvious claimant.

															We therefore hold that Whitener has standing to raise relevant
equal protection challenges to Oklahoma's gender-based law. We now
consider those arguments. II A Before 1972, Oklahoma defined the commencement of civil majority
at age 18 for females and age 21 for males. Okla.Stat., Tit. 15, §
13 (1972 and Supp. 1976). In contrast, females were held criminally
responsible as adults at age 18, and males at age 16. Okla.Stat.,
Tit. 10, § 1101(a) (Supp. 1976). After the Court of Appeals for the
Tenth Circuit held, in 1972, on the authority of Reed v.
Reed, 404 U. S. 71 (1971), that the age distinction was unconstitutional for purposes
of establishing criminal responsibility as adults, Lamb v.
Brown, 456 F.2d 18, the Oklahoma Legislature fixed age 18 as
applicable to both males and females. Okla.Stat., Tit. 10, §
1101(a) (Supp. 1976). In 1972, 18 also was established as the age
of majority for males and females in civil matters, Okla.Stat.,
Tit. 15, § 13 (1972 and Supp. 1976), except that §§ 241 and 245 of
the 3.2% beer statute were simultaneously codified to create an
exception to the gender-free rule.

															Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that
distinguish between males and females are "subject to scrutiny
under the Equal Protection Clause." 404 U.S. at 404 U. S. 75 . To
withstand constitutional challenge, previous cases establish that
classifications by gender must serve important governmental
objectives and must be substantially related to achievement of
those objectives. Thus, in Reed, the objectives Page 429 U. S. 198 of "reducing the workload on probate courts," id. at 404 U. S. 76 ,
and "avoiding intra-family controversy," id. at 404 U. S. 77 ,
were deemed of insufficient importance to sustain use of an overt
gender criterion in the appointment of administrators of intestate
decedents' estates. Decisions following Reed similarly
have rejected administrative ease and convenience as sufficiently
important objectives to justify gender-based classifications. See, e.g., Stanley v. Illinois, 405 U.
S. 645 , 405 U. S. 656 (1972); Frontiero v. Richardson, 411 U.
S. 677 , 411 U. S. 690 (1973); cf. Schlesinger v. Ballard, 419 U.
S. 498 , 419 U. S.
506 -507 (1975). And only two Terms ago, Stanton v.
Stanton, 421 U. S. 7 (1975),
expressly stating that Reed v. Reed was "controlling," 421
U.S. at 421 U. S. 13 ,
held that Reed required invalidation of a Utah
differential age-of-majority statute, notwithstanding the statute's
coincidence with and furtherance of the State's purpose of
fostering "old notions" of role typing and preparing boys for their
expected performance in the economic and political worlds. 421 U.S.
at 421 U. S. 14 -15.
[ Footnote 6 ] Reed v. Reed has also provided the underpinning for
decisions that have invalidated statutes employing gender as an
inaccurate proxy for other, more germane bases of classification.
Hence, "archaic and overbroad" generalizations, Schlesinger v.
Ballard, supra at 419 U. S. 508 ,
concerning the financial position of servicewomen, Frontiero v.
Richardson, supra at 411 U. S. 689 n. 23, and working women, Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 643 (1975), could not justify use of a gender line in determining
eligibility for certain governmental entitlements. Similarly,
increasingly outdated Page 429 U. S. 199 misconceptions concerning the role of females in the home,
rather than in the "marketplace and world of ideas," were rejected
as loose-fitting characterizations incapable of supporting state
statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 U. S. 522 , 419 U. S. 535 n. 17 (1975). In light of the weak congruence between gender and
the characteristic or trait that gender purported to represent, it
was necessary that the legislatures choose either to realign their
substantive laws in a gender-neutral fashion or to adopt procedures
for identifying those instances where the sex-centered
generalization actually comported with fact. See, e.g., Stanley
v. Illinois, supra at 405 U. S. 658 ; cf. Cleveland Board of Education v.
LaFleur, 414 U. S. 632 , 414 U. S. 650 (1974).

															In this case, too, " Reed, we feel, is controlling . . .
," Stanton v. Stanton, supra at 421 U. S. 13 . We
turn then to the question whether, under Reed, the
difference between males and females with respect to the purchase
of 3.2% beer warrants the differential in age drawn by the Oklahoma
statute. We conclude that it does not. B The District Court recognized that Reed v. Reed was
controlling. In applying the teachings of that case, the court
found the requisite important governmental objective in the traffic
safety goal proffered by the Oklahoma Attorney General. It then
concluded that the statistics introduced by the appellees
established that the gender-based distinction was substantially
related to achievement of that goal. C We accept for purposes of discussion the District Court's
identification of the objective underlying §§ 241 and 245 as the
enhancement of traffic safety. [ Footnote 7 ] Clearly, the protection Page 429 U. S. 200 of public health and safety represents an important function of
state and local governments. However, appellees' statistics, in our
view, cannot support the conclusion that the gender-based
distinction closely serves to achieve that objective, and therefore
the distinction cannot, under Reed, withstand equal
protection challenge.

															The appellees introduced a variety of statistical surveys.
First, an analysis of arrest statistics for 1973 demonstrated that
18-20-year-old male arrests for "driving under the influence" and
"drunkenness" substantially exceeded female arrests for that same
age period. [ Footnote 8 ]
Similarly, youths aged 17-21 were found to be overrepresented among
those killed Page 429 U. S. 201 or injured in traffic accidents, with males again numerically
exceeding females in this regard. [ Footnote 9 ] Third, a random roadside survey in Oklahoma
City revealed that young male were more inclined to drive and drink
beer than were their female counterparts. [ Footnote 10 ] Fourth, Federal Bureau of
Investigation nationwide statistics exhibited a notable increase in
arrests for "driving under the influence." [ Footnote 11 ] Finally, statistical evidence
gathered in other jurisdictions, particularly Minnesota and
Michigan, was offered to corroborate Oklahoma's experience by
indicating the pervasiveness of youthful participation in motor
vehicle accidents following the imbibing of alcohol. Conceding that
"the case is not free from doubt," 399 F. Supp. at 1314, the
District Court nonetheless concluded that this statistical showing
substantiated "a rational basis for the legislative judgment
underlying the challenged classification." Id. at
1307.

															Even were this statistical evidence accepted as accurate, it
nevertheless offers only a weak answer to the equal protection
question presented here. The most focused and relevant of the
statistical surveys, arrests of 18-20-year-olds for alcohol-related
driving offenses, exemplifies the ultimate unpersuasiveness of this
evidentiary record. Viewed in terms of the correlation between sex
and the actual activity that Oklahoma seeks to regulate -- driving
while under the influence of alcohol -- the statistics broadly
establish that .18% of females and 2% of males in that age group
were arrested for that offense. While such a disparity is not
trivial in a statistical sense, it hardly can form the basis for
employment of a gender line as a classifying device. Certainly if
maleness Page 429 U. S. 202 is to serves a proxy for drinking and driving, a correlation of
2% must be considered an unduly tenuous "fit." [ Footnote 12 ] Indeed, prior cases have
consistently rejected the use of sex as a decisionmaking factor
even though the statutes in question certainly rested on far more
predictive empirical relationships than this. [ Footnote 13 ]

															Moreover, the statistics exhibit a variety of other shortcomings
that seriously impugn their value to equal protection analysis.
Setting aside the obvious methodological problems, [ Footnote 14 ] the surveys do not adequately
justify the salient Page 429 U. S. 203 features of Oklahoma's gender-based traffic safety law. None
purports to measure the use and dangerousness of 3.2% beer, as
opposed to alcohol generally, a detail that is of particular
importance since, in light of its low alcohol level, Oklahoma
apparently considers the 3.2% beverage to be "nonintoxicating."
Okla.Stat., Tit. 37, § 163.1 (1958); see State ex rel. Springer
v. Bliss, 199 Okla. 198 , 185 P.2d 220 (1947). Moreover, many of the studies, while graphically
documenting the unfortunate increase in driving while under the
influence of alcohol, make no effort to relate their findings to
age-sex differentials as involved here. [ Footnote 15 ] Indeed, the only survey that explicitly
centered its attention upon young drivers and their use of beer --
albeit apparently not of the diluted 3.2% variety -- reached
results that hardly can be viewed as impressive in justifying
either a gender or age classification. [ Footnote 16 ] Page 429 U. S. 204 There is no reason to belabor this line of analysis. It is
unrealistic to expect either members of the judiciary or state
officials to be well versed in the rigors of experimental or
statistical technique. But this merely illustrates that proving
broad sociological propositions by statistics is a dubious
business, and one that inevitably is in tension with the normative
philosophy that underlies the Equal Protection Clause. [ Footnote 17 ] Suffice to say that the
showing offered by the appellees does not satisfy us that sex
represents a legitimate, accurate proxy for the regulation of
drinking and driving. In fact, when it is further recognized that
Oklahoma's statute prohibits only the selling of 3.2% beer to young
males, and not their drinking the beverage once acquired (even
after purchase by their 18-20-year-old female companions), the
relationship between gender and traffic safety becomes far too
tenuous to satisfy Reed's requirement that the gender-based
difference be substantially related to achievement of the statutory
objective.

															We hold, therefore, that under Reed, Oklahoma's 3.2% beer
statute invidiously discriminates against males 18-20 years of
age. D Appellees argue, however, that §§ 241 and 245 enforce state
policies concerning the sale and distribution of alcohol and by
force of the Twenty-first Amendment should therefore be held to
withstand the equal protection challenge. The District Court's
response to this contention is unclear. The court assumed that the
Twenty-first Amendment "strengthened" the State's police powers
with respect to alcohol regulation, 399 F. Supp. at 1307, but then
said that "the standards of review that [the Equal Protection
Clause] mandates are not relaxed." Id. at 1308. Our view
is, and we hold, that the Twenty-first Amendment does not save
the Page 429 U. S. 205 invidious gender-based discrimination from invalidation as a
denial of equal protection of the laws in violation of the
Fourteenth Amendment.

															The history of state regulation of alcoholic beverages dates
from long before adoption of the Eighteenth Amendment. In the License Cases , 5 How. 504, 46 U. S. 579 (1847), the Court recognized a broad authority in state governments
to regulate the trade of alcoholic beverages within their borders
free from implied restrictions under the Commerce Clause. Later in
the century, however, Leisy v. Hardin, 135 U.
S. 100 (1890), undercut the theoretical underpinnings of
the License Cases. This led Congress, acting pursuant to
its powers under the Commerce Clause, to reinvigorate the State's
regulatory role through the passage of the Wilson [ Footnote 18 ] and Webb-Kenyon Acts.
[ Footnote 19 ] See, e.g.,
Clark Distilling Co. v. Western Maryland R. Co., 242 U.
S. 311 (1917) (upholding Webb-Kenyon Act); In re
Rahrer, 140 U. S. 545 (1891) (upholding Wilson Act). With passage of the Eighteenth
Amendment, the uneasy tension between the Commerce Clause and state
police power temporarily subsided.

															The Twenty-first Amendment repealed the Eighteenth Amendment in
1933. The wording of § 2 of the Twenty-first Amendment [ Footnote 20 ] closely follows the
Webb-Kenyon and Wilson Page 429 U. S. 206 Acts, ex.pressing the framers' clear intention of
constitutionalizing the Commerce Clause framework established under
those statutes. This Court's decisions since have confirmed that
the Amendment primarily created an exception to the normal
operation of the Commerce Clause. See, e.g., Hostetter v.
Idlewild Bon Voyage Liquor Corp., 377 U.
S. 324 , 377 U. S. 330 (1964); Carter v. Virginia, 321 U.
S. 131 , 321 U. S.
139 -140 (1944) (Frankfurter, J., concurring); Finch
& Co. v. McKittrick, 305 U. S. 395 , 305 U. S. 398 (1939). Even here, however, the Twenty-first Amendment does not pro tanto repeal the Commerce Clause, but merely requires
that each provision "be considered in the light of the other, and
in the context of the issues and interests at stake in any concrete
case." Hostetter v. Idlewild Bon Voyage Liquor Corp.,
supra at 377 U. S. 332 ; cf. Department of Revenue v. James Beam Distilling Co., 377 U. S. 341 (1964); Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938).

															Once passing beyond consideration of the Commerce Clause, the
relevance of the Twenty-first Amendment to other constitutional
provisions becomes increasingly doubtful. As one commentator has
remarked:

															"Neither the text nor the history of the Twenty-first Amendment
suggests that it qualifies individual rights protected by the Bill
of Rights and the Fourteenth Amendment where the sale or use of
liquor is concerned."

															P. Brest Processes of Constitutional Decisionmaking, Cases and
Materials, 258 (1975). Any departures from this historical view
have been limited and sporadic. Two States successfully relied upon
the Twenty-first Amendment to respond to challenges of major liquor
importers to state authority to regulate the importation and
manufacture of alcoholic beverages on Commerce Clause and
Fourteenth Amendment grounds. See Mahoney v. Joseph Triner
Corp., 304 U. S. 401 (1938); State Board v. Young's Market
Co. , Page 429 U. S. 207 299 U. S. 59 , 299 U. S. 64 (196). In fact, however, the arguments in both cases centered upon
importation of intoxicants, a regulatory area where the State's
authority under the Twenty-first Amendment is transparently clear, Hostetter v. Idlewild Bon Voyage Liquor Corp., supra at 377 U. S. 330 ,
and n. 9, and touched upon purely economic matters that
traditionally merit only the mildest review under the Fourteenth
Amendment, see, e.g., Joseph E. Seagram & Sons v.
Hostetter, 384 U. S. 35 , 384 U. S. 47 -48, 384 U. S. 50 -51
(1966) (rejecting Fourteenth Amendment objections to state liquor
laws on the strength of Ferguson v. Skrupa, 372 U.
S. 726 , 372 U. S.
729 -730 (1963) and Williamson v. Lee Optical
Co., 348 U. S. 483 (1955)), [ Footnote 21 ] Cases
involving individual rights protected by the Due Process Clause
have been treated in sharp contrast. For example, when an
individual objected to the mandatory "posting" of her name in
retail liquor establishments and her characterization as an
"excessive drink[er]," the Twenty-first Amendment was held not to
qualify the scope of her due process rights. Wisconsin v.
Constantineau, 400 U. S. 433 , 400 U. S. 436 (1971).

															It is true that California v. LaRue, 409 U.
S. 109 , 409 U. S. 115 (1972), relied upon the Twenty-first Amendment to "strengthen" the
State's authority to regulate live entertainment at establishments
licensed to dispense liquor, at least when the performances
"partake more of gross sexuality than of communication," id. at 409 U. S. 118 .
Nevertheless, the Court has never recognized sufficient "strength"
in the Amendment to defeat an otherwise established claim of
invidious discrimination in violation of the Equal Protection
Clause. Page 429 U. S. 208 Rather, Moose Lodge No. 107 v. Irvis, 407 U.
S. 163 , 407 U. S.
178 -179 (1972), establishes that state liquor regulatory
schemes cannot work invidious discriminations that violate the
Equal Protection Clause.

															Following this approach, both federal and state courts uniformly
have declared the unconstitutionality of gender lines that restrain
the activities of customers of state-regulated liquor
establishments irrespective of the operation of the Twenty-first
Amendment. See, e.g., White v. Fleming, 522 F.2d 730 (CA7
1975); Women's Liberation Union of R.I. v. Israel, 512
F.2d 106 (CA1 1975); Daugherty v. Daley, 370 F.
Supp. 338 (ND Ill.1974) (three-judge court); Seidenberg v.
McSorleys' Old Ale House, Inc., 317 F.
Supp. 593 (SDNY 1970); Commonwealth Alcoholic Beverage
Control Bd. v. Burke, 481
S.W.2d 52 (Ky.1972); cf. Sail'er Inn, Inc. v.
Kirby, 5 Cal. 3d 1 , 485
P.2d 529 (1971); Paterson Tavern & G. O. A. v.
Hawthorne, 57 N.J. 180, 270 A.2d
628 (1970). Even when state officials have posited sociological
or empirical justifications for these gender-based
differentiations, the courts have struck down discriminations aimed
at an entire class under the guise of alcohol regulation. In fact,
social science studies that have uncovered quantifiable differences
in drinking tendencies dividing along both racial and ethnic lines
strongly suggest the need for application of the Equal Protection
Clause in preventing discriminatory treatment that almost certainly
would be perceived as invidious. [ Footnote 22 ] In sum, the principles embodied in the
Equal Page 429 U. S. 209 Protection. Clause are not to be rendered inapplicable by
statistically measured but loose-fitting generalities concerning
the drinking tendencies of aggregate groups. We thus hold that the
operation of the Twenty-first Amendment does not alter the
application of equal protection standards that otherwise govern
this case. Page 429 U. S. 210 We conclude that the gender-based differential contained in
Okla.Stat., Tit. 37, § 45 (1976 Supp.) constitutes a denial of the
equal protection of the laws to males aged 18-20, [ Footnote 23 ] and reverse the judgment of
the District Court. [ Footnote
24 ] It is so ordered. [ Footnote 1 ]

															Sections 241 and 245 provide in pertinent part:

															§ 241.

															"It shall be unlawful for any person who holds a license to sell
and dispense beer . . . to sell, barter or give to any minor any
beverage containing more than one-half of one per cent of alcohol
measured by volume and not more than three and two-tenths (3.2) per
cent of alcohol measured by weight."

															§ 245.

															"A 'minor,' for the purposes of Section . . . 241 . . . is
defined as a female under the age of eighteen (18) years, and a
male under the age of twenty-one (21) years."

															[ Footnote 2 ]

															Appellants did not seek class certification of Craig as
representative of other similarly situated males 18-20 years of
age. See, e.g., Sosna v. Iowa, 419 U.
S. 393 , 419 U. S. 401 (1975).

															[ Footnote 3 ]

															The District Court' opinion confirms that Whitener from the
outset has based her constitutional challenge on
gender-discrimination ground, 399 F. Supp. at 1306, and "[n]o
challenge is made to [her] standing and requisite interest in the
controversy. . . ." Id. at 1306 n. 1.

															[ Footnote 4 ]

															The standing question presented here is not answered by the
principle stated in United States v. Raines, 362 U. S.
17 , 362 U. S. 21 (1960), that

															"one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it
might also be taken as applying to other persons or other
situations in which its application might be unconstitutional."

															In Raines, the Court refused to permit certain public
officials of Georgia to defend against application of the Civil
Rights Act to their official conduct on the ground that the statute
also might be construed to encompass the "purely private actions"
of others. The Raines rule remains germane in such a
setting, where the interests of the litigant and the rights of the
proposed third parties are in no way mutually interdependent. Thus,
a successful suit against Raines did not threaten to impair or
diminish the independent private rights of others, and
consequently, consideration of those third-party rights properly
was deferred until another day.

															Of course, the Raines principle has also been relaxed
where legal action against the claimant threatens to "chill" the
First Amendment rights of third parties. See, e.g., Lewis v.
New Orleans, 415 U. S. 130 (1974).

															[ Footnote 5 ]

															The fact that Baird chose to disobey the legal duty imposed upon
him by the Massachusetts anti-contraception statute, resulting in
his criminal conviction, 405 U.S. at 405 U. S. 440 ,
does not distinguish the standing inquiry from that pertaining to
the anticipatory attack in this case. In both Eisenstadt and here, the challenged statutes compel jus tertii claimants either to cease their proscribed activities or to suffer
appropriate sanctions. The existence of Art. III "injury in fact"
and the structure of the claimant's relationship to the third
parties are not altered by the litigative posture of the suit. And
certainly no suggestion will be heard that Whitener's anticipatory
challenge offends the normal requirements governing such actions. See generally Steffel v. Thompson, 415 U.
S. 452 (1974); Samuels v. Mackell, 401 U. S.
66 (1971); Younger v. Harris, 401 U. S.
37 (1971).

															[ Footnote 6 ] Kahn v. Shevin, 416 U. S. 351 (1974) and Schlesinger v. Ballard, 419 U.
S. 498 (1975), upholding the use of gender-based
classifications, rested upon the Court's perception of the
laudatory purposes of those laws as remedying disadvantageous
conditions suffered by women in economic and military life. See 416 U.S. at 416 U. S.
353 -354; 419 U.S. at 419 U. S. 508 .
Needless to say, in this case, Oklahoma does not suggest that the
age-sex differential was enacted to ensure the availability of 3.2%
beer for women as compensation for previous deprivations.

															[ Footnote 7 ]

															That this was the true purpose is not at all self-evident. The
purpose is not apparent from the face of the statute, and the
Oklahoma Legislature does not preserve statutory history materials
capable of clarifying the objectives served by its legislative
enactments. The District Court acknowledged the nonexistence of
materials necessary "to reveal what the actual purpose of the
legislature was," but concluded that "we feel it apparent that a
major purpose of the legislature was to promote the safety of the
young persons affected and the public generally." 399 F. Supp. at
1311 n. 6. Similarly, the attorney for Oklahoma, while proposing
traffic safety as a legitimate rationale for the 3.2% beer law,
candidly acknowledged at oral argument that he is unable to assert
that traffic safety is "indeed the reason" for the gender line
contained in § 245. Tr. of Oral Arg. 27. For this appeal we find
adequate the appellee's representation of legislative purpose,
leaving for another day consideration of whether the statement of
the State's Assistant Attorney General should suffice to inform
this Court of the legislature's objectives, or whether the Court
must determine if the litigant simply is selecting a convenient,
but false, post hoc rationalization.

															[ Footnote 8 ]

															The disparities in 18-20-year-old male-female arrests were
substantial for both categories of offenses: 427 versus 24 for
driving under the influence of alcohol, and 966 versus 102 for
drunkenness. Even if we assume that a legislature may rely on such
arrest data in some situations, these figures do not offer support
for a differential age line, for the disproportionate arrests of
males persisted at older ages; indeed, in the case of arrests for
drunkenness, the figures for all ages indicated "even more male
involvement in such arrests at later ages." 399 F. Supp. at 1309. See also n 14, infra. [ Footnote 9 ]

															This survey drew no correlation between the accident figures for
any age group and levels of intoxication found in those killed or
injured.

															[ Footnote 10 ]

															For an analysis of the results of this exhibit, see n 16, infra. [ Footnote 11 ]

															The FBI made no attempt to relate these arrest figures either to
beer drinking or to an 18-21 age differential, but rather found
that male arrests for all ages exceeded 90% of the total.

															[ Footnote 12 ]

															Obviously, arrest statistics do not embrace all individuals who
drink and drive. But for purposes of analysis, this
"underinclusiveness" must be discounted somewhat by the
shortcomings inherent in this statistical sample, see n 14, infra. In any
event, we decide this case in light of the evidence offered by
Oklahoma, and know of no way of extrapolating these arrest
statistics to take into account the driving and drinking population
at large, including those who avoided arrest.

															[ Footnote 13 ]

															For example, we can conjecture that, in Reed, Idaho's
apparent premise that women lacked experience in formal business
matters (particularly compared to men) would have proved to be
accurate in substantially more than 2% of all cases. And in both Frontiero and Wiesenfeld, we expressly found
appellees' empirical defense of mandatory dependency tests for men
but not women to be unsatisfactory, even though we recognized that
husbands are still far less likely to be dependent on their wives
than vice versa. See, e.g., 411 U.S. at 411 U. S.
688 -690.

															[ Footnote 14 ]

															The very social stereotypes that find reflection in age
differential laws, see Stanton v. Stanton, 421 U. S.
7 , 421 U. S. 14 -15
(1975), are likely substantially to distort the accuracy of these
comparative statistics. Hence "reckless" young men who drink and
drive are transformed into arrest statistics, whereas their female
counterparts are chivalrously escorted home. See, e.g., W.
Reckless & B. Kay, The Female Offender 4, 7, 13, 16-17 (Report
to Presidential Commission on Law Enforcement and Administration of
Justice, 1967). Moreover, the Oklahoma surveys, gathered under a
regime where the age differential law in question has been in
effect, are lacking in controls necessary for appraisal of the
actual effectiveness of the male 3.2% beer prohibition. In this
regard, the disproportionately high arrest statistics for young
males -- and, indeed, the growing alcohol-related arrest figures
for all ages and sexes -- simply may be taken to document the
relative futility of controlling driving behavior by the 3.2% beer
statute and like legislation, although we obviously have no means
of estimating how many individuals, if any, actually were prevented
from drinking by these laws.

															[ Footnote 15 ] See, e.g., nn. 9
and | 9 and S.
190fn11|>11, supra. See also 9 and S. 190fn16|>n. 16, infra. [ Footnote 16 ]

															The random roadside survey of drivers conducted in Oklahoma City
during August 1972 found that 78% of drivers under 20 were male.
Turning to an evaluation of their drinking habits and factoring out
nondrinkers, 84% of the males, versus 77% of the females, expressed
a preference for beer. Further 16.5% of the men and 11.4% of the
women had consumed some alcoholic beverage within two hours of the
interview. Finally, a blood alcohol concentration greater than .01%
was discovered in 14.6% of the males compared to 11.5% of the
females. "The 1973 figures, although they contain some variations,
reflect essentially the same pattern." 399 F. Supp. at 1309.
Plainly these statistical disparities between the sexes are not
substantial. Moreover, when the 18-20 age boundaries are lifted and
all drivers analyzed, the 1972 roadside survey indicates that male
drinking rose slightly, whereas female exposure to alcohol remained
relatively constant. Again, in 1973, the survey established that,
"compared to all drivers interviewed, . . . the umder-20 age group
generally showed a lower involvement with alcohol in terms of
having drunk within the past two hours or having a significant BAC
(blood alcohol content)." Ibid. In sum, this survey
provides little support for a gender line among teenagers, and
actually runs counter to the imposition of drinking restrictions
based upon age.

															[ Footnote 17 ] See, e.g., n 22, infra. [ Footnote 18 ]

															The Wilson Act, enacted in 1890, reads in pertinent part:

															"All . . . intoxicating liquors or liquids transported into any
State or Territory . . . shall upon arrival in such State or
Territory be subject to the operation and effect of the laws of
such State or Territory enacted in the exercise of its police
powers, to the same extent and in the same manner as though such
liquids or liquors had been produced in such State or Territory. .
. ."

															27 U.S.C. § 121.

															[ Footnote 19 ]

															The Webb-Kenyon Act of 1913 prohibits

															"[t]he shipment or transportation . . . of any . . .
intoxicating liquor of any kind, from one State, Territory, or
District . . . into any other State, Territory, or District . . .
[for the purpose of being] received, possessed, sold, or in any
manner used . . . in violation of any law of such State, Territory,
or District. . . ."

															27 U.S.C. § 122.

															[ Footnote 20 ]

															"The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby
prohibited."

															[ Footnote 21 ]

															The dictum contained in State Board v. Young's Market
Co., 299 U. S. 59 , 299 U. S. 64 (1936), that "[a] classification recognized by the Twenty-first
Amendment cannot be deemed forbidden by the Fourteenth," is
inapplicable to this case. The Twenty-first Amendment does not
recognize, even indirectly, classifications based upon gender. And,
as the accompanying text demonstrates, that statement has not been
relied upon in recent cases that have considered Fourteenth
Amendment challenges to state liquor regulation.

															[ Footnote 22 ]

															Thus, if statistics were to govern the permissibility of state
alcohol regulation without regard to the Equal Protection Clause as
a limiting principle, it might follow that States could freely
favor Jews and Italian Catholics at the expense of all other
Americans, since available studies regularly demonstrate that the
former two groups exhibit the lowest rates of problem drinking. See, e.g., Haberman & Sheinberg, Implicative Drinking
Reported in a Household Survey: A Corroborative Note on Subgroup
Differences, 28 Q.J.Studies on Alcohol 538 (1967); Wechsler, Thum,
Demone, & Dwinnell, Social Characteristics and Blood Alcohol
Level, 33 Q.J.Studies on Alcohol 132, 141-142 (1972); Wechsler,
Demone, Thum, & Kasey, Religious-Ethnic Differences In Alcohol
Consumption, 11 J.Health & Soc.Behavior 21, 28 (1970); Schmidt
& Popham, Impressions of Jewish Alcoholics, 37 J.Studies on
Alcohol 931 (1976). Similarly, if a State were allowed simply to
depend upon demographic characteristics of adolescents in
identifying problem drinkers, statistics might support the
conclusion that only black teenagers should be permitted to drink,
followed by Asian-Americans and Spanish-Americans.

															"Whites and American Indians have the lowest proportions of
abstainers and the highest proportions of moderate/heavy and heavy
drinkers."

															Summary of Final Report of a National Study of Adolescent
Drinking Behavior, Attitudes and Correlates 147-148 (Center for the
Study of Social Behavior, Research Triangle Inst., Apr.1975)
(percentage of moderate/heavy and heavy adolescent drinkers by
race: black 15.2%; Asian-American 18.3%; Spanish-American 22.7%;
white 25.3%; American Indian 28.1%).

															In the past, some States have acted upon their notions of the
drinking propensities of entire groups in fashioning their alcohol
policies. The most typical recipient of this treatment has been the
American Indian; indeed, several States established criminal
sanctions for the sale of alcohol to an Indian or "half- or
quarter-breed Indian." See, e.g., Fla.Stat.Ann. § 569.07
(1962 and 1976 Supp.) (repealed in 1972); Iowa Code Ann. § 732.5
(1950 and 1976 Supp.) (repealed in 1967); Minn.Stat.Ann. § 340.82
(1957) (repealed in 1969); Neb.Rev.Stat. 53-181 (1944) (repealed in
1955); Utah Code Ann. § 76-34-1 (1953 and 1975 Supp.) (repealed in
1955). Other statutes and constitutional provisions proscribed the
introduction of alcoholic beverages onto Indian reservations. See, e.g., Act of June 10, 1910, § 2, 36 Stat. 558;
Ariz.Const., Art. XX, § 3; N.M.Const., Art. XXI, § 8; Okla.Const.,
Art. 1, § 7. While Indian-oriented provisions were the most common,
state alcohol beverage prohibitions also have been directed at
other groups, notably German, Italian, and Catholic immigrants. See, e.g., J. Higham, Strangers in the Land 25, 267-268,
295 (1975). The repeal of most of these laws signals society's
perception of the unfairness and questionable constitutionality of
singling out groups to bear the brunt of alcohol regulation.

															[ Footnote 23 ]

															Insofar as Goesaert v. Cleary, 335 U.
S. 464 (1948), may be inconsistent, that decision is
disapproved. Undoubtedly reflecting the view that Goesaert's equal protection analysis no longer obtains,
the District Court made no reference to that decision in upholding
Oklahoma's statute. Similarly, the opinions of the federal and
state courts cited earlier in the text invalidating gender lines
with respect to alcohol regulation uniformly disparaged the
contemporary vitality of Goesaert. [ Footnote 24 ]

															As noted in Stanton v. Stanton, 421 U.S. at 421 U. S. 17 -18,
the Oklahoma Legislature is free to redefine any cutoff age for the
purchase and sale of 3.2% beer that it may choose, provided that
the redefinition operates in a gender-neutral fashion.

															MR. JUSTICE POWELL, concurring.

															I join the opinion of the Court as I am in general agreement
with it. I do have reservations as to some of the discussion
concerning the appropriate standard for equal protection analysis
and the relevance of the statistical evidence. Accordingly, I add
this concurring statement.

															With respect to the equal protection standard, I agree that Reed v. Reed, 404 U. S. 71 (1971), is the most relevant precedent. But I find it unnecessary,
in deciding this case, to read that decision as broadly as some of
the Court's language may imply. Reed and subsequent cases
involving gender-based classifications make clear that the Court
subjects such classifications to a more critical examination than
is normally applied when "fundamental" constitutional rights and
"suspect classes" are not present. * Page 429 U. S. 211 I view this as relatively easy case. No one questions the
legitimacy or importance of the asserted governmental objective:
the promotion of highway safety. The decision of the case turns on
whether the state legislature, by the classification it has chosen,
has adopted a means that bears a " fair and substantial
relation'" to this objective. Id. at 404 U. S. 76 ,
quoting Royster Guano Co. v. Virginia, 253 U.
S. 412 , 253 U. S. 415 (1920). It seems to me that the statistics offered by appellees and
relied upon by the District Court do tend generally to support the
view that young men drive more, possibly are inclined to drink
more, and -- for various reasons -- are involved in more accidents
than young women. Even so, I am not persuaded that these facts and
the inferences fairly drawn from them justify this classification
based on a three-year age differential between the sexes, and
especially one that is so easily circumvented as to be virtually
meaningless. Putting it differently, this gender-based
classification does not bear a fair and substantial relation to the
object of the legislation.

															* As is evident from our opinions, the Court has had difficulty
in agreeing upon a standard of equal protection analysis that can
be applied consistently to the wide variety of legislative
classifications. There are valid reasons for dissatisfaction with
the "two-tier" approach that has been prominent in the Court's
decisions in the past decade. Although viewed by many as a
result-oriented substitute for more critical analysis, that
approach -- with its narrowly limited "upper-tier" -- now has
substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a
"middle-tier" approach. While I would not endorse that
characterization, and would not welcome a further subdividing of
equal protection analysis, candor compels the recognition that the
relatively deferential "rational basis" standard of review normally
applied takes on a sharper focus when we address a gender-based
classification. So much is clear from our recent cases. For
thoughtful discussions of equal protection analysis, see,
e.g., Gunther, The Supreme Court, 1971 Term -- Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model for A
Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Wilkinson, The
Supreme Court, the Equal Protection Clause, and the Three Faces of
Constitutional Equality, 61 Va.L.Rev. 945 (1975).

															MR. JUSTICE STEVENS, concurring.

															There is only one Equal Protection Clause. It requires every
State to govern impartially. It does not direct the Page 429 U. S. 212 courts to apply one standard of review in some cases and a
different standard in other cases. Whatever criticism may be
leveled at a judicial opinion implying that there are at least
three such standards applies with the same force to a double
standard.

															I am inclined to believe that what has become known as the
two-tiered analysis of equal protection claims does not describe a
completely logical method of deciding cases, but rather is a method
the Court has employed to explain decisions that actually apply a
single standard in a reasonably consistent fashion. I also suspect
that a careful explanation of the reasons motivating particular
decisions may contribute more to an identification of that standard
than an attempt to articulate it in all-encompassing terms. It may
therefore be appropriate for me to state the principal reasons
which persuaded me to join the Court's opinion.

															In this case, the classification is not as obnoxious as some the
Court has condemned, [ Footnote 2/1 ]
nor as inoffensive as some the Court has accepted. It is
objectionable because it is based on an accident of birth,
[ Footnote 2/2 ] because it is a mere
remnant of the now almost universally rejected tradition of
discriminating against males in this age bracket, [ Footnote 2/3 ] and because, to the extent it
reflects any physical difference between male and Page 429 U. S. 213 females, it is actually perverse. [ Footnote 2/4 ] The question then is whether the traffic
safety justification put forward by the State is sufficient to make
an otherwise offensive classification acceptable.

															The classification is not totally irrational. For the evidence
does indicate that there are more males than females in this age
bracket who drive, and also more who drink. Nevertheless, there are
several reasons why I regard the justification as unacceptable. It
is difficult to believe that the statute was actually intended to
cope with the problem of traffic safety, [ Footnote 2/5 ] since it has only a minimal effect on
access to a not very intoxicating beverage, and does not prohibit
its consumption. [ Footnote 2/6 ]
Moreover, the empirical data submitted by Page 429 U. S. 214 the State accentuate the unfairness of treating all
18-20-year-old males as inferior to their female counterparts. The
legislation imposes a restraint on 100% of the males in the class
allegedly because about 2% of them have probably violated one or
more laws relating to the consumption of alcoholic beverages.
[ Footnote 2/7 ] It is unlikely that
this law will have a significant deterrent effect either on that 2%
or on the law-abiding 98%. But even assuming some such slight
benefit, it does not seem to me that an insult to all of the young
men of the State can be justified by visiting the sins of the 2% on
the 98%.

															[ Footnote 2/1 ]

															Men as a general class have not been the victims of the kind of
historic, pervasive discrimination that has disadvantaged other
groups.

															[ Footnote 2/2 ]

															"[S]ince sex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth, the
imposition of special disabilities upon the members of a particular
sex because of their sex would seem to violate 'the basic concept
of our system that legal burdens should bear some relationship to
individual responsibility . . . ,' Weber v. Aetna Casualty
& Surety Co., 406 U. S. 164 , 406 U. S.
175 ." Frontiero v. Richardson, 411 U.
S. 677 , 411 U. S.
686 .

															[ Footnote 2/3 ]

															Apparently Oklahoma is the only State to permit this narrow
discrimination to survive the elimination of the disparity between
the age of majority for males and females.

															[ Footnote 2/4 ]

															Because males are generally heavier than females, they have a
greater capacity to consume alcohol without impairing their driving
ability than do females.

															[ Footnote 2/5 ]

															There is no legislative history to indicate that this was the
purpose, and several features of the statutory scheme indicate the
contrary. The statute exempts license holders who dispense 3.2%
beer to their own children, and a related statute makes it unlawful
for 18-year-old men (but not women) to work in establishments in
which 3.2% beer accounts for over 25% of gross sales. Okla.Stat.,
Tit. 37, §§ 241, 243, 245 (1953 and Supp. 1976).

															There is, of course, no way of knowing what actually motivated
this discrimination, but I would not be surprised if it represented
nothing more than the perpetuation of a stereotyped attitude about
the relative maturity of the members of the two sexes in this age
bracket. If so, the following comment is relevant:

															"[A] traditional classification is more likely to be used
without pausing to consider its justification than is a newly
created classification. Habit, rather than analysis, makes it seem
acceptable and natural to distinguish between male and female,
alien and citizen, legitimate and illegitimate; for too much of our
history, there was the same inertia in distinguishing between black
and white. But that sort of stereotyped reaction may have no
rational relationship other than pure prejudicial discrimination --
to the stated purpose for which the classification is being
made." Mathews v. Lucas, 427 U. S. 495 , 427 U. S.
520 -521 (STEVENS, J., dissenting).

															[ Footnote 2/6 ]

															It forbids the sale of 3.2% beer to 18-20-year-old men without
forbidding possession, or preventing them from obtaining it from
other sources, such as friends who are either older or female.
Thus, the statute only slightly impedes access to 3.2% beer.

															[ Footnote 2/7 ]

															The only direct evidence submitted by the State concerning use
of beer by young drivers indicates that there is no substantial
difference between the sexes. In a random roadside survey of
drivers, 16.5% of the male drivers under 20 had consumed alcohol
within two hours of the interview, as opposed to 11.4% of the
women. Over three-fourths of the nonabstainers in both groups
expressed a preference for beer. And 14.6% of the men, as opposed
to 11.5% of the women, had blood alcohol concentrations over .01%. See ante at 429 U. S. 203 n. 16.

															MR. JUSTICE BLACKMUN, concurring in part.

															I join the Court's opinion except 429 U.
S. I agree, however, that the Twenty-first Amendment
does not save the challenged Oklahoma statute.

															MR. JUSTICE STEWART, concurring in the judgment.

															I agree that the appellant Whitener has standing to assert the
equal protection claims of males between 18 and 21 years old. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S.
443 -446; Griswold v. Connecticut, 381 U.
S. 479 , 381 U. S. 481 ; Barrows v. Jackson, 346 U. S. 249 , 346 U. S.
255 -260; Buchanan v. Warley, 245 U. S.
60 , 245 U. S. 72 -73; see Note, Standing To Assert Constitutional Jus
Tertii, 88 Harv.L.Rev. 423, 431-436 (1974). I also concur in
the Court's judgment on the merits of the constitutional issue
before us. Page 429 U. S. 215 Every State has load power under the Twenty-first Amendment to
control the dispensation of alcoholic beverages within its borders. E.g., California v. LaRue, 409 U.
S. 109 ; Joseph E. Seagram & Sons v.
Hostetter, 384 U. S. 35 ; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 , 377 U. S. 330 ; Mahoney v. Joseph Triner Corp., 304 U.
S. 401 ; State Board v. Young's Market Co., 299 U. S. 59 .
But

															"[t]his is not to say that the Twenty-first Amendment empowers a
State to act with total irrationality or invidious discrimination
in controlling the distribution and dispensation of liquor. . .
." California v. LaRue, supra at 409 U. S. 120 n. (concurring opinion).

															The disparity created by these Oklahoma statutes amounts to
total irrationality. For the statistics upon which the State now
relies, whatever their other shortcomings, wholly fail to prove or
even suggest that 3.2% beer is somehow more deleterious when it
comes into the hands of a male aged 18-20 than of a female of like
age. The disparate statutory treatment of the sexes here, without
even a colorably valid justification or explanation, thus amounts
to invidious discrimination. See Reed v. Reed, 404 U. S. 71 .

															MR. CHIEF JUSTICE BURGER, dissenting.

															I am in general agreement with MR. JUSTICE REHNQUIST's dissent,
but even at the risk of compounding the obvious confusion created
by those voting to reverse the District Court, I will add a few
words.

															At the outset, I cannot agree that appellant Whitener has
standing arising from her status as a saloonkeeper to assert the
constitutional rights of her customers. In this Court, "a litigant
may only assert his own constitutional rights or immunities." United States v. Raines, 362 U. S. 17 , 362 U. S. 22 (1960). There are a few, but strictly limited exceptions to that
rule; despite the most creative efforts, this case fits within none
of them. Page 429 U. S. 216 This is not Sullivan v. Little Hunting Park, 396 U. S. 229 (1969), or Barrows v. Jackson, 346 U.
S. 249 (1953), for there is here no barrier whatever to
Oklahoma males 18-20 years of age asserting, in an appropriate
forum, any constitutional rights they may claim to purchase 3.2%
beer. Craig's successful litigation of this very issue was
prevented only by the advent of his 21st birthday. There is thus no
danger of interminable dilution of those rights if appellant
Whitener is not permitted to litigate them here. Cf. Eisenstadt
v. Baird, 405 U. S. 438 , 405 U. S.
445 -446 (1972).

															Nor is this controlled by Griswold v. Connecticut, 381 U. S. 479 (1965). It borders on the ludicrous to draw a parallel between a
vendor of beer and the intimate professional physician-patient
relationship which undergirded relaxation of standing rules in that
case.

															Even in Eisenstadt, the Court carefully limited its
recognition of third-party standing to cases in which the
relationship between the claimant and the relevant third party

															"was not simply the fortuitous connection between a vendor and
potential vendees, but the relationship between one who acted to
protect the rights of a minority and the minority itself."

															405 U.S. at 405 U. S. 445 .
This is plainly not the case here. See also McGowan v.
Maryland, 366 U. S. 420 , 366 U. S.
429 -430 (1961); Brown v. United States, 411 U. S. 223 , 411 U. S. 230 (1973).

															In sum, permitting a vendor to assert the constitutional rights
of vendees whenever those rights are arguably infringed introduces
a new concept of constitutional standing to which I cannot
subscribe.

															On the merits, we have only recently recognized that our duty is
not "to create substantive constitutional rights in the name of
guaranteeing equal protection of the laws." San Antonio School
Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 33 (1973). Thus, even interests of such importance in our society as
public education and housing do not qualify as "fundamental rights"
for equal protection purposes, because they have no Page 429 U. S. 217 textually independent constitutional status. See id. at 411 U. S. 29 -39
(education); Lindsey v. Normet, 405 U. S.
56 (1972) (housing). Though today's decision does not go
so far as to make gender-based classifications "suspect," it makes
gender a disfavored classification. Without an independent
constitutional basis supporting the right asserted or disfavoring
the classification adopted, I can justify no substantive
constitutional protection other than the normal McGowan v.
Maryland, supra at 366 U. S.
425 -426, protection afforded by the Equal Protection
Clause.

															The means employed by the Oklahoma Legislature to achieve the
objectives sought may not be agreeable to some judges, but since
eight Members of the Court think the means not irrational, I see no
basis for striking down the statute as violative of the
Constitution simply because we find it unwise, unneeded, or
possibly even a bit foolish.

															With MR. JUSTICE REHNQUIST, I would affirm the judgment of the
District Court.

															MR. JUSTICE REHNQUIST, dissenting.

															The Court's disposition of this case is objectionable on two
grounds. First is its conclusion that men challenging a
gender-based statute which treats them less favorably than women
may invoke a more stringent standard of judicial review than
pertains to most other types of classifications. Second is the
Court's enunciation of this standard, without citation to any
source, as being that

															"classifications by gender must serve important governmental objectives, and must be substantially related
to achievement of those objectives." Ante at 429 U. S. 197 (emphasis added). The only redeeming feature of the Court's
opinion, to my mind, is that it apparently signals a retreat by
those who joined the plurality opinion in Frontiero v.
Richardson, 411 U. S. 677 (1973), from their view that sex is a "suspect" classification for
purposes of equal protection analysis. I think the Oklahoma statute
challenged here need pass only the "rational basis" equal Page 429 U. S. 218 protection analysis expounded in cases such as McGowan v.
Maryland, 366 U. S. 420 (1961), and Williamson v. Lee Optical Co., 348 U.
S. 483 (1955), and I believe that it is constitutional
under that analysis. I In Frontiero v. Richardson, supra, the opinion for the
plurality sets forth the reasons of four Justices for concluding
that sex should be regarded as a suspect classification for
purposes of equal protection analysis. These reasons center on our
Nation's "long and unfortunate history of sex discrimination," 411
U.S. at 411 U. S. 684 ,
which has been reflected in a whole range of restrictions on the
legal rights of women, not the least of which have concerned the
ownership of property and participation in the electoral process.
Noting that the pervasive and persistent nature of the
discrimination experienced by women is in part the result of their
ready identifiability, the plurality rested its invocation of
strict scrutiny largely upon the fact that

															"statutory distinctions between the sexes often have the effect
of invidiously relegating the entire class of females to inferior
legal status without regard to the actual capabilities of its
individual members." Id. at 411 U. S.
686 -687. See Stanton v. Stanton, 421 U. S.
7 , 421 U. S. 14 -15
(1975).

															Subsequent to Frontiero, the Court has declined to hold
that sex is a suspect class, Stanton v. Stanton, supra at 421 U. S. 13 , and
no such holding is imported by the Court's resolution of this case.
However, the Court's application here of an elevated or
"intermediate" level scrutiny, like that invoked in cases dealing
with discrimination against females, raises the question of why the
statute here should be treated any differently from counties
legislative classifications unrelated to sex which have been upheld
under a minimum rationality standard. Jefferson v.
Hackney, 406 U. S. 535 , 406 U. S.
546 -547 (1972); Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 81 -84
(1971); Dandridge v. Williams, 397 U.
S. 471 , 397 U. S.
484 -485 (1970); Page 429 U. S. 219 McGowan v. Maryland, supra at 366 U. S.
425 -426; Flemming v. Nestor, 363 U.
S. 603 , 363 U. S. 611 (1960); Wlliamson v. Lee Optical Co., supra at 348 U. S.
488 -489.

															Most obviously unavailable to support any kind of special
scrutiny in this case is a history or pattern of past
discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny.
There is no suggestion in the Court's opinion that males in this
age group are in any way peculiarly disadvantaged, subject to
systematic discriminatory treatment, or otherwise in need of
special solicitude from the courts.

															The Court does not discuss the nature of the right involved, and
there is no reason to believe that it sees the purchase of 3.2%
beer as implicating any important interest, let alone one that is
"fundamental" in the constitutional sense of invoking strict
scrutiny. Indeed, the Court's accurate observation that the statute
affects the selling, but not the drinking, of 3.2% beer, ante at 429 U. S. 204 ,
further emphasizes the limited effect that it has on even those
persons in the age group involved. There is, in sum, nothing about
the statutory classification involved here to suggest that it
affects an interest, or works against a group, which can claim
under the Equal Protection Clause that it is entitled to special
judicial protection.

															It is true that a number of our opinions contain broadly phrased
dicta implying that the same test should be applied to all
classifications based on sex, whether affecting females or males. E.g., Frontiero v. Richardson, supra at 411 U. S. 688 ; Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 (1971). However, before today, no decision of this Court has
applied an elevated level of scrutiny to invalidate a statutory
discrimination harmful to males, except where the statute impaired
an important personal interest protected by the Constitution.
[ Footnote 3/1 ] There being no such
interest Page 429 U. S. 220 here, and there being no plausible argument that this is a
discrimination against females, [ Footnote 3/2 ] the Court's reliance on our previous sex
discrimination cases is ill-founded. It treats gender
classification as a talisman which -- without regard to the rights
involved or the persons affected -- calls into effect a heavier
burden of judicial review.

															The Court's conclusion that a law which treats males less
favorably than females "must serve important governmental
objectives and must be substantially related to achievement of
those objectives" apparently comes out of thin air. The Equal
Protection Clause contains no such language, and none of our
previous cases adopt that standard. I would think we have had
enough difficulty with the two standards of review which our cases
have recognized -- the Page 429 U. S. 221 norm of "rational basis," and the "compelling state interest"
required where a "suspect classification" is involved -- so as to
counsel weightily against the insertion of still another "standard"
between those two. How is this Court to divine what objectives are
important? How is it to determine whether a particular law is
"substantially" related to the achievement of such objective,
rather than related in some other way to its achievement? Both of
the phrases used are so diaphanous and elastic as to invite
subjective judicial preferences or prejudices relating to
particular types of legislation, masquerading as judgments whether
such legislation is directed at "important" objectives or, whether
the relationship to those objectives is "substantial" enough.

															I would have thought that, if this Court were to leave anything
to decision by the popularly elected branches of the Government,
where no constitutional claim other than that of equal protection
is invoked, it would be the decision as to what governmental
objectives to be achieved by law are "important," and which are
not. As for the second part of the Court's new test, the Judicial
Branch is probably in no worse position than the Legislative or
Executive Branches to determine if there is any rational
relationship between a classification and the purpose which it
might be thought to serve. But the introduction of the adverb
"substantially" requires courts to make subjective judgments as to
operational effects, for which neither their expertise nor their
access to data fits them. And even if we manage to avoid both
confusion and the mirroring of our own preferences in the
development of this new doctrine, the thousands of judges in other
courts who must interpret the Equal Protection Clause may not be so
fortunate. II The applicable rational basis test is one which

															"permits the States a wide scope of discretion in enacting laws
which affect some groups of citizens differently than Page 429 U. S. 222 others. The constitutional safeguard is offended only if the
classification rests on grounds wholly irrelevant to the
achievement of the State's objective. State legislatures are
presumed to have acted within their constitutional power despite
the fact that, in practice, their laws result in some inequality. A
statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. at 366 U. S.
425 -426 (citations omitted).

															Our decisions indicate that application of the Equal Protection
Clause in a context not justifying an elevated level of scrutiny
does not demand "mathematical nicety" or the elimination of all
inequality. Those cases recognize that the practical problems of
government may require rough accommodations of interests, and hold
that such accommodations should be respected unless no reasonable
basis can be found to support them. Dandridge v. Williams, 397 U.S. at 397 U. S. 485 .
Whether the same ends might have been better or more precisely
served by a different approach is no part of the judicial inquiry
under the traditional minimum rationality approach. Richardson
v. Belcher, 404 U.S. at 404 U. S.
84 .

															The Court "accept[s] for purposes of discussion" the District
Court's finding that the purpose of the provisions in question was
traffic safety, and proceeds to examine the statistical evidence in
the record in order to decide if "the gender-based distinction
closed serves to achieve that objective." Ante at 429 U. S. 199 , 429 U. S. 200 (emphasis added). (Whether there is a difference between laws which
"closely serv[e]" objectives and those which are only
"substantially related" to their achievement, ante at 429 U. S. 197 ,
we are not told.) I believe that a more traditional type of
scrutiny is appropriate in this case, and I think that the Court
would have done well here to heed its own warning that "[i]t is
unrealistic to expect . . . members of the judiciary . . . to be
well versed in the rigors of experimental or statistical
technique." Ante at 429 U. S. 204 .
One Page 429 U. S. 223 need not immerse oneself in the fine points of statistical
analysis, however, in order to see the weaknesses in the Court's
attempted denigration of the evidence at hand.

															One survey of arrest statistics assembled in 1973 indicated that
males in the 18-20 age group were arrested for "driving under the
influence" almost 18 times as often as their female counterparts,
and for "drunkenness" in a ratio of almost 10 to 1. [ Footnote 3/3 ] Accepting, as the Court does,
appellants' comparison of the total figures with 1973 Oklahoma
census data, this survey indicates a 2% arrest rate among males in
the age group, as compared to a .18% rate among females.

															Other surveys indicated (1) that, over the five-year period from
1967 to 1972, nationwide arrests among those under 18 for drunken
driving increased 138%, and that 93% of all persons arrested for
drunken driving were male; [ Footnote
3/4 ] (2) that youths in the 17-21 age group were
overrepresented among those killed or injured in Oklahoma traffic
accidents, that male casualties substantially exceeded female, and
that deaths in this age group continued to rise, while overall
traffic deaths declined; [ Footnote
3/5 ] (3) that over three-fourths of the drivers under 20 in the
Oklahoma City area are males, and that each of them, on average,
drives half again as many miles per year as their female
counterparts; [ Footnote 3/6 ] (4)
that four-fifths of male drivers Page 429 U. S. 224 under 20 in the Oklahoma City area state a drink preference for
beer, while about three-fifths of female drivers of that age state
the same preference; [ Footnote 3/7 ]
and (5) that the percentage of male drivers under 20 admitting to
drinking within two hours of driving was half again larger than the
percentage for females, and that the percentage of male drivers of
that age group with a blood alcohol content greater than .01% was
almost half again larger than for female drivers. [ Footnote 3/8 ]

															The Court's criticism of the statistics relied on by the
District Court conveys the impression that a legislature, in
enacting a new law, is to be subjected to the judicial equivalent
of a doctoral examination in statistics. Legislatures are not held
to any rules of evidence such as those which may govern courts or
other administrative bodies, and are entitled to draw factual
conclusions on the basis of the determination of probable cause
which an arrest by a police officer normally represents. In this
situation, they could reasonably infer that the incidence of drunk
driving is a good deal higher than the incidence of arrest.

															And while, as the Court observes, relying on a report to a
Presidential Commission which it cites in a footnote, such
statistics may be distorted as a result of stereotyping, the
legislature is not required to prove before a court that its
statistics are perfect. In any event, if stereotypes are as
pervasive as the Court suggests, they may, in turn, influence the
conduct of the men and women in question, and cause the young men
to conform to the wild and reckless image which is their
stereotype.

															The Court also complains of insufficient integration of the
various surveys on several counts -- that the injury and death
figures are in no way directly correlated with intoxication, ante at 429 U. S. 201 n. 9; that the national figures for drunk driving contain no
breakdown for the 18-21-year-old group, Page 429 U. S. 225 ante at 429 U. S. 201 n. 11; and that the arrest records for intoxication are not tied to
the consumption of 3.2% beer, ante at 429 U. S.
201 -202, nn. 11 and 12. But the State of Oklahoma -- and
certainly this Court for purposes of equal protection review -- can
surely take notice of the fact that drunkenness is a significant
cause of traffic casualties, and that youthful offenders have
participated in the increase of the drunk-driving problem. On this
latter point, the survey data indicating increased driving
casualties among 18-21-year-olds, while overall casualties dropped,
are not irrelevant.

															Nor is it unreasonable to conclude from the expressed preference
for beer by four-fifths of the age-group males that that beverage
was a predominant source of their intoxication-related arrests.
Taking that as the predicate, the State could reasonably bar those
males from any purchases of alcoholic beer, including that of the
3.2% variety. This Court lacks the expertise or the data to
evaluate the intoxicating properties of that beverage, and, in that
posture, our only appropriate course is to defer to the reasonable
inference supporting the statute -- that taken in sufficient
quantity this beer has the same effect as any alcoholic
beverage.

															Quite apart from these alleged methodological deficiencies in
the statistical evidence, the Court appears to hold that that
evidence, on its face, fails to support the distinction drawn in
the statute. The Court notes that only 2% of males (as against .18%
of females) in the age group were arrested for drunk driving, and
that this very low figure establishes "an unduly tenuous fit'"
between maleness and drunk driving in the 18-20-year-old group. On
this point, the Court misconceives the nature of the equal
protection inquiry. The rationality of a statutory classification for equal
protection purposes does not depend upon the statistical "fit"
between the class and the trait sought to be singled out. It turns
on whether there may be a sufficiently higher incidence Page 429 U. S. 226 of the trait within the included class than in the excluded
class to justify different treatment. Therefore the present equal
protection challenge to this gender-based discrimination poses only
the question whether the incidence of drunk driving among young men
is sufficiently greater than among young women to justify
differential treatment. Notwithstanding the Court's critique of the
statistical evidence, that evidence suggests clear differences
between the drinking and driving habits of young men and women.
Those differences are grounds enough for the State reasonably to
conclude that young males pose by far the greater drunk-driving
hazard, both in terms of sheer numbers and in terms of hazard on a
per-driver basis. The gender-based difference in treatment in this
case is therefore not irrational.

															The Court's argument that a 2% correlation between maleness and
drunk driving is constitutionally insufficient therefore does not
pose an equal protection issue concerning discrimination between
males and females. The clearest demonstration of this is the fact
that the precise argument made by the Court would be equally
applicable to a flat bar on such purchases by anyone, male or
female, in the 18-20 age group; in fact it would apply a
fortiori in that case, given the even more "tenuous fit'"
between drunk driving arrests and femaleness. The statistics
indicate that about 1% of the age group population as a whole is
arrested. What the Court's argument is relevant to is not equal
protection, but due process -- whether there are enough persons in
the category who drive while drunk to justify a bar against
purchases by all members of the group. Cast in those terms, the argument carries little weight, in
light of our decisions indicating that such questions call for a
balance of the State's interest against the harm resulting from any
overinclusiveness or underinclusiveness. Vlandis v. Kline, 412 U. S. 441 , 412 U. S.
448 -452 (1973). The personal interest harmed Page 429 U. S. 227 here is very minor -- the present legislation implicates only
the right to purchase 3.2% beer, certainly a far cry from the
important personal interests which have on occasion supported this
Court's invalidation of statutes on similar reasoning. Cleveland Board of Education v. LaFleur, 414 U.
S. 632 , 414 U. S. 640 (1974); Stanley v. Illinois, 405 U.
S. 645 , 405 U. S. 651 (1972). And the state interest involved is significant -- the
prevention of injury and death on the highways.

															This is not a case where the classification can only be
justified on grounds of administrative convenience. Vlandis v.
Kline, supra, at 412 U. S. 451 ; Stanley v. Illinois, supra at 405 U. S. 656 .
There being no apparent way to single out persons likely to drink
and drive, it seems plain that the legislature was faced here with
the not atypical legislative problem of legislating in terms of
broad categories with regard to the purchase and consumption of
alcohol. I trust, especially in light of the Twenty-first
Amendment, that there would be no due process violation if no one
in this age group were allowed to purchase 3.2% beer. Since males
drink and drive at a higher rate than the age group as a whole, I
fail to see how a statutory bar with regard only to them can create
any due process problem.

															The Oklahoma Legislature could have believed that 18-20-year-old
males drive substantially more, and tend more often to be
intoxicated than their female counterparts; that they prefer beer
and admit to drinking and driving at a higher rate than females;
and that they suffer traffic injuries out of proportion to the part
they make up of the population. Under the appropriate rational
basis test for equal protection, it is neither irrational nor
arbitrary to bar them from making purchases of 3.2% beer, which
purchases might in many cases be made by a young man who
immediately returns to his vehicle with the beverage in his
possession. The record does not give any good indication of the
true proportion of males in the age group who drink and drive
(except Page 429 U. S. 228 that it is no doubt greater than the 2% who are arrested), but,
whatever it may be, I cannot see that the mere purchase right
involved could conceivably raise a due process question. There
being no violation of either equal protection or due process, the
statute should accordingly be upheld.

															[ Footnote 3/1 ]

															In Stanley v. Illinois, 405 U.
S. 645 (1972), the Court struck down a statute allowing
separation of illegitimate children from a surviving father, but
not a surviving mother, without any showing of parental unfitness.
The Court stated that

															"the interest of a parent in the companionship, care, custody,
and management of his or her children 'come[s] to this Court with a
momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements.'"

															In Kahn v. Shevin, 416 U. S. 351 (1974), the Court upheld Florida's $500 property tax exemption for
widows only. The opinion of the Court appears to apply a rational
basis test, id. at 416 U. S. 355 ,
and is so understood by the dissenters. Id. at 416 U. S. 357 (BRENNAN, J., joined by MARSHALL, J., dissenting).

															In Weinberger v. Wiesenfeld, 420 U.
S. 636 (1975), the Court invalidated § 202(g) of the
Social Security Act, which allowed benefits to mothers, but not
fathers, of minor children who survive the wage earner. This
statute was treated, in the opinion of the Court, as a
discrimination against female wage earners, on the ground that it
minimizes the financial security which their work efforts provide
for their families. 420 U.S. at 420 U. S.
645 .

															[ Footnote 3/2 ]

															I am not unaware of the argument, from time to time advanced,
that all discriminations between the sexes ultimately redound to
the detriment of female because they tend to reinforce "old
notions" restricting the roles and opportunities of women. As a
general proposition applying equally to all sex categorizations, I
believe that this argument was implicitly found to carry little
weight in our decisions upholding gender-based differences. See
Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra. Seeing no assertion that it
has special applicability to the situation at hand, I believe it
can be dismissed as an insubstantial consideration.

															[ Footnote 3/3 ]

															Extract from: Oklahoma Bureau of Investigation, Arrest
Statistics for September, October, November, and December, 1973.
Defendants' Exhibit 1, Jurisdictional Statement A22. Extract from:
Oklahoma City Police Department, Arrest Statistics for 1973.
Defendants' Exhibit 2, Jurisdictional Statement A23. See
ante at 429 U. S. 200 n. 8.

															[ Footnote 3/4 ]

															Extract from: Federal Bureau of Investigation, Crime in the
United States, 1972. Defendants' Exhibit 6, App. 182-184.

															[ Footnote 3/5 ]

															Extract from: Oklahoma Department. of Public Safety, Summary of
Statewide Collisions for 1972, 1973. Defendants' Exhibits 4 and 5,
Jurisdictional Statement A30-A31.

															[ Footnote 3/6 ]

															Extract from: Oklahoma Management and Engineering Consulting,
Inc., Report to Alcohol Safety Action Program (1973). Defendants'
Exhibit 3, Table 1, Jurisdictional Statement A25.

															[ Footnote 3/7 ] Id. at A27 (Table 3), A29 (Table 5).

															[ Footnote 3/8 ] Id. at A25 (Table (1)). See ante at 429 U. S. 203 n. 16.

Summary:
Here is a summary of the Supreme Court case Craig v. Boren (1976):

Issue: Whether an Oklahoma law prohibiting the sale of 3.2% beer to males under 21 and females under 18 violated the Equal Protection Clause of the Fourteenth Amendment.

Holding: Yes, the Court held that the gender-based differential in the Oklahoma law constituted invidious discrimination against males aged 18-20 in violation of the Equal Protection Clause.

Reasoning: The Court recognized that gender-based classifications must substantially further important governmental objectives. However, the Court found that the statistical evidence presented by Oklahoma regarding drunk-driving arrests and traffic injuries among young males did not warrant the conclusion that gender was an accurate proxy for regulating drinking and driving.

Conclusion: The Court ruled that the Oklahoma law's gender-based differential violated the Equal Protection Clause, and that vendors had standing to challenge the law on equal protection grounds.