14th Amendment Due Process Clause Case Study

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14th Amendment Due Process Clause Case Study



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Supreme Court decision in Near v. Minnesota used the 14 th Amendment to apply the freedom of the press to the states. In , not long after the adoption of the Constitution, the governing Federalist Party attempted to stifle criticism with the Alien and Sedition Acts. The Espionage Act of and the Sedition Act of imposed restrictions on free press during wartime. In Schenck v. Congress repealed both laws in Brandenburg v.

The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. Tornillo , the court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment. So, it ruled that the government may not force newspapers to publish that which they do not desire to publish. However, content-based regulation of television and radio has been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies.

However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. In Federal Communications Commission v. Some of the recent issues in restrictions of free press include: the U. There has also been some controversy over the U. A simplified definition of the right to petition is: the right to present requests to the government without punishment or reprisal. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause.

The right to petition grants people not only the freedom to stand up and speak out against injustices they feel are occurring, but also grants the power to help change those injustices. It is important to note that in response to a petition from a citizen or citizens, the government is not required to actually respond to or address the issue. Under the Petition Clause, the government is only required to provide a way for citizens to petition, and a method in which they will receive the petition.

In the past, Congress has directly limited the right to petition. During the s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In , the House of Representatives adopted the Gag Rule, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished—again, the Supreme Court did not rule on the matter.

Freedom of Assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue, and defend common interests. The right to freedom of association is recognized as a human and political right, and a civil liberty. This right was frequently exercised during the Civil Rights Movement depicted here. The right of assembly was originally distinguished from the right to petition. In United States v. Later cases, however, paid less attention to these distinctions. The right to petition is generally concerned with expression directed to the government seeking redress of a grievance, while the right to assemble is speaking more so to the right of Americans to gather together.

Privacy Policy. Skip to main content. Civil Liberties. Search for:. Learning Objectives Compare and contrast civil rights with civil liberties with respect to the First Amendment. As part of this, the US cannot establish a religion nor prevent free exercise of religion. Originally, the First Amendment applied only to the federal government. However, Gitlow v. New York used provisions found in the Fourteenth Amendment to apply the First Amendment to the states as well. Key Terms First Amendment : The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press.

French Declaration of the Rights of Man and of the Citizen : A fundamental document of the French Revolution and in the history of human rights, defining the individual and collective rights of all the estates of the realm as universal. Freedom of Religion Freedom of religion is a constitutionally guaranteed right, established in the First Amendment of the Bill of Rights. Key Takeaways Key Points The protection of religious freedom is laid out in the First Amendment, which states that Congress cannot establish a state religion nor prohibit free exercise of religion.

The Establishment Clause prevents the U. The Free Exercise Clause gives all Americans the right to practice their religion freely, without interference or persecution by the government. Key Takeaways Key Points The Establishment Clause prohibits the creation of a national religion, and also prohibits the US government from favoring one religion over another or excessively entangling itself with religious issues or groups. Thomas Jefferson is often cited as being the one who introduced the concept of the separation of church and state. The Establishment Clause has been incorporated against the states via the Fourteenth Amendment. However, the process has been tricky, as it is argued that the Fourteenth Amendment speaks to individual rights, while the Establishment Clause does not.

The Supreme Court has made judgments on three main questions: can the US government give financial assistance to religious groups? Is state-sanctioned prayer in public schools acceptable? Are religious displays in government-affiliated places acceptable? Kurtzman provided a three-part test for determining whether or not a law or act violates the Establishment Clause.

Key Terms separation of church and state : The distance in the relationship between organized religion and the nation state. First Amendment : The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press. Constitution which prohibits both the establishment of a national religion by Congress, and the preference by the U.

Learning Objectives Describe how the interpretation of the Free Exercise clause has changed over time. Key Takeaways Key Points The Free Exercise Clause and the Establishment Clause which essentially establishes the separation of church and state , compose the provisions on religious freedom in the First Amendment of the Bill of Rights. The interpretation of the Free Exercise Clause has narrowed and widened throughout the past decades. If rescission by Ohio and New Jersey were illegitimate, South Carolina would have been the 28th state to ratify the amendment, enough for the amendment to be a part of the Constitution. Otherwise, only 26 states ratified the amendment out of the needed Ohio and New Jersey's rescissions which occurred after Democrats retook the states legislature caused significant controversy and debate, but as this controversy occurred ratification by other states continued:.

Seward certified that if withdrawals of ratification by New Jersey and Ohio were illegitimate, then the amendment had become part of the Constitution on July 9, , with ratification by South Carolina as the 28th state. On July 27, Secretary Seward received the formal ratification from Georgia. The inclusion of Ohio and New Jersey has led some to question the validity of the rescission of a ratification. The inclusion of Alabama and Georgia has called that conclusion into question.

While there have been Supreme Court cases dealing with ratification issues, this particular question has never been adjudicated. On October 16, , three months after the amendment was ratified and part of the Constitution, Oregon rescinded its ratification bringing the number of states that had the amendment actively ratified to 27 for nearly a year , but this had no actual impact on the US Constitution or the 14th Amendment's standing. The Fourteenth Amendment was subsequently ratified: []. Johnson: " Who is a citizen of the United States is an open question. The decision of the courts and doctrine of the commentators is, that every man who is a citizen of the State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State Cowan: "I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?

Trumbull: "Undoubtedly. Trumbull: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens. Cowan: "The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind.

That is the fallacy of his argument. Trumbull: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.

Cowan: "Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to a society than I look upon Gypsies. I do not know how my honorable friend from California looks upon Chinese, but I do know how some of his fellow citizens regard them.

I have no doubt that now they are useful, and I have no doubt that within proper restraints, allowing that State and the other Pacific States to manage them as they may see fit, they may be useful; but I would not tie their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom they see fit Why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants?

Women and children are, as we have seen, "persons". They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been elected to express the idea here indicated if suffrage was the absolute right of all citizens. From Wikipedia, the free encyclopedia. Voting Rights. Drafting and ratification timeline Convention Signing Federalism Republicanism. The two pages of the Fourteenth Amendment in the National Archives. Main article: Citizenship Clause. Main article: Privileges or Immunities Clause. Main article: Due Process Clause.

Main article: Substantive due process. Main article: Incorporation of the Bill of Rights. Main article: Equal Protection Clause. Main article: State actor. Main article: Congressional power of enforcement. Wilkins United States v. Wong Kim Ark Afroyim v. Rusk Vance v. Happersett Twining v. New Jersey United States v. Wheeler Oyama v. California Saenz v. Chicago Maxwell v. Dow Twining v. New Jersey Gitlow v. New York Powell v. Alabama Palko v. Connecticut Adamson v.

California Rochin v. California Mapp v. Ohio Robinson v. California Gideon v. Wainwright Malloy v. Hogan Reitman v. Mulkey Duncan v. Louisiana Benton v. Maryland Goldberg v. Kelly Furman v. Georgia Goss v. Lopez O'Connor v. Donaldson Gregg v. Georgia McDonald v. Chicago Timbs v. Illinois Mugler v. Kansas Allgeyer v. Louisiana Lochner v. New York Muller v. Oregon Adkins v. Children's Hospital Meyer v. Nebraska Pierce v. Society of Sisters Nebbia v. Parrish Griswold v. Connecticut Roe v. Wade Planned Parenthood v. Gore Washington v. Glucksberg State Farm v. Campbell Lawrence v. Texas Obergefell v. West Virginia Yick Wo v. Hopkins Santa Clara County v. Southern Pacific Railroad Plessy v. Ferguson Berea College v.

Kentucky Buchanan v. Warley Skinner v. Oklahoma Korematsu v. United States Shelley v. Kraemer Hernandez v. Texas Brown v. Board of Education Bolling v. Sharpe Baker v. Carr Loving v. Virginia Reed v. Reed Palmer v. Thompson Eisenstadt v. Rodriguez Examining Board v. Flores de Otero Regents of the University of California v. Bakke Plyler v. Doe Mississippi University for Women v. Hogan Posadas de Puerto Rico Associates v. Virginia Romer v. Evans Bush v. Morgan Fitzpatrick v. Bitzer City of Boerne v. College Savings Bank United States v. Morrison Kimel v. Garrett Nevada Department of Human Resources v. Hibbs Tennessee v. Lane Shelby County v. See also: Presidency of Andrew Johnson.

Ratified amendment pre-certification, — Ratified amendment pre-certification after first rejecting it, Ratified amendment post-certification after first rejecting it, — Ratified amendment post-certification, Ratified amendment, withdrew ratification rescission , then re-ratified. Oregon rescinded ratification post-certification and was included in the official count. Territories of the United States in , not yet states. Alabama : July 13, Georgia : July 21, after rejection November 9, Virginia : October 8, after rejection January 9, Mississippi : January 17, Texas : February 18, after rejection October 27, Delaware : February 12, after rejection February 8, Maryland : April 4, [] after rejection March 23, California : May 6, Kentucky : March 30, after rejection January 8, Metropolitan Edison Co.

Yaretsky , U. Moose Lodge No. Irvis , U. Pearson Education, Inc. Pearson Education. Archived from the original on January 14, Retrieved October 23, Akron Law Review. Archived PDF from the original on February 22, Retrieved April 2, Kraemer, U. May 2, Retrieved December 24, Arizona State Law Journal. SSRN Chicago , U. The Atlantic. November 8, Retrieved March 18, Archived from the original on March 7, Mayer , U. Wilkins, U. November 3, Retrieved November 22, The New York Times. Retrieved February 7, University of Pennsylvania Journal of Constitutional Law. The Nation. Retrieved November 12, If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.

Trumbull, during the debate, said, "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means. We make treaties with them, and therefore they are not subject to our jurisdiction. If we want to control the Navajoes or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Would he [Senator Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?

It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens. Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the U. Wilkins , U. ISBN Archived from the original on February 18, Retrieved October 2, Oregon Historical Quarterly.

Archived from the original on September 4, Retrieved July 18, From the debate on the Civil Rights Act: Mr. The debate on the Civil Rights Act contained the following exchange: Mr. Constitution of the United States. Convention to propose amendments State ratifying conventions. United States 14th Amendment case law. Citizenship Clause. Slaughter-House Cases Minor v. Happersett Elk v. Wong Kim Ark Perez v. Brownell Afroyim v. Rusk Rogers v. Bellei Saenz v. Roe Due Process Clause. Mugler v. New York Coppage v. Kansas Adams v. Tanner Adkins v. Meyer v. Society of Sisters Griswold v. Wade Doe v. Bolton Bowers v. Hardwick Webster v. Reproductive Health Services Planned Parenthood v. Casey Lawrence v.

Texas Whole Woman's Health v. Hellerstedt Dobbs v. United States v. Vuitch Roe v. Bolton Bellotti v. Baird I Bellotti v. Baird II H. Matheson City of Akron v. Akron Center for Reproductive Health Thornburgh v. Reproductive Health Services Hodgson v. Minnesota Planned Parenthood v. Casey Mazurek v. Armstrong Stenberg v. Carhart Ayotte v. Carhart Whole Woman's Health v. Hellerstedt Azar v. Garza Box v. Planned Parenthood of Indiana and Kentucky, Inc. Russo Whole Woman's Health v. Jackson Dobbs v. Monroe v. Pape McNeese v. Board of Education Pierson v. Ray Jenkins v. McKeithen Scheuer v.

Rhodes Wood v. Strickland O'Connor v. Donaldson Paul v. Davis Imbler v. Pachtman Monell v. Navarette Owen v. City of Independence Harlow v. Fitzgerald Felder v. Casey Will v. Doe Inyo County v. Abrams Fitzgerald v. Barnstable School Committee Ashcroft v. Iqbal Los Angeles County v. Humphries Connick v. Thompson Holden v. Hardy Muller v. Oregon Buck v.

Bell Powell v. Alabama West Coast Hotel v. Alabama Loving v. Virginia Epperson v. Arkansas In re Winship Kolender v. Lawson Edwards v. Aguillard Troxel v. Granville Caperton v. Hodges Williams v. Pennsylvania Equal Protection Clause. Pace v. Alabama Yick Wo v. Hopkins Plessy v. Constantineau, U. It is true that California v. LaRue, U. 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. Rather, Moose Lodge No. Irvis, U. 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.

Fleming, F. Israel, F. Daley, F. Burke, S. Sail'er Inn, Inc. Kirby, 5 Cal. Hawthorne, 57 N. 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.

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. We conclude that the gender-based differential contained in Okla. Appellants did not seek class certification of Craig as representative of other similarly situated males years of age.

Iowa, U. The District Court' opinion confirms that Whitener from the outset has based her constitutional challenge on gender-discrimination ground, F. The standing question presented here is not answered by the principle stated in United States v. Raines, U. 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. New Orleans, U. The fact that Baird chose to disobey the legal duty imposed upon him by the Massachusetts anti-contraception statute, resulting in his criminal conviction, U. 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, U. Mackell, U. Harris, U. Kahn v. Shevin, U. See U. Needless to say, in this case, Oklahoma does not suggest that the age-sex differential was enacted to ensure the availability of 3. 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. Similarly, the attorney for Oklahoma, while proposing traffic safety as a legitimate rationale for the 3.

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. The disparities in year-old male-female arrests were substantial for both categories of offenses: versus 24 for driving under the influence of alcohol, and versus 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. See also n 14, infra. This survey drew no correlation between the accident figures for any age group and levels of intoxication found in those killed or injured.

For an analysis of the results of this exhibit, see n 16, infra. 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.

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. The very social stereotypes that find reflection in age differential laws, see Stanton v. Hence "reckless" young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are chivalrously escorted home. 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. 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.

See also 9 and S. Further Finally, a blood alcohol concentration greater than. Plainly these statistical disparities between the sexes are not substantial. Moreover, when the age boundaries are lifted and all drivers analyzed, the roadside survey indicates that male drinking rose slightly, whereas female exposure to alcohol remained relatively constant. Again, in , the survey established that, "compared to all drivers interviewed,. 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.

The dictum contained in State Board v. 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. 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.

Studies on Alcohol 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. 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.

Other statutes and constitutional provisions proscribed the introduction of alcoholic beverages onto Indian reservations. 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. Higham, Strangers in the Land 25, , 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.

Insofar as Goesaert v. Cleary, U. 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. As noted in Stanton v. 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.

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. 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.

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. 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. There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the. 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. 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. Men as a general class have not been the victims of the kind of historic, pervasive discrimination that has disadvantaged other groups. Frontiero v. 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.

Because males are generally heavier than females, they have a greater capacity to consume alcohol without impairing their driving ability than do females. 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. 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:. 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, U. It forbids the sale of 3. Thus, the statute only slightly impedes access to 3. 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, Over three-fourths of the nonabstainers in both groups expressed a preference for beer. And See ante at U. I join the Court's opinion except U. I agree, however, that the Twenty-first Amendment does not save the challenged Oklahoma statute. I agree that the appellant Whitener has standing to assert the equal protection claims of males between 18 and 21 years old.

Eisenstadt v. Warley, U. I also concur in the Court's judgment on the merits of the constitutional issue before us. Every State has load power under the Twenty-first Amendment to control the dispensation of alcoholic beverages within its borders. California v. LaRue, supra at U. 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. The disparate statutory treatment of the sexes here, without even a colorably valid justification or explanation, thus amounts to invidious discrimination. See Reed v. I am in general agreement with MR. 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. There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them. This is not Sullivan v. Little Hunting Park, U. 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. Nor is this controlled by Griswold v. 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. This is plainly not the case here. See also McGowan v. Maryland, U. United States, U. 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.

Rodriguez, U. 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.

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