Effect of Section 2 upon Other Constitutional Provisions.
Notwithstanding the 1936 assertion that “[a] classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth,”26 the Court has now in a series of cases acknowledged that § 2 of the Twenty-first Amendment did not repeal provisions of the Constitution adopted before ratification of the Twenty-first, save for the severe cabining of Commerce Clause application to the liquor traffic, but it has formulated no consistent rationale for a determination of the effect of the later provision upon earlier ones. In Craig v. Boren,27 the Court invalidated a state law that prescribed different minimum drinking ages for men and women as violating the Equal Protection Clause. To the state’s Twenty-first Amendment argument, the Court replied that the Amendment “primarily created an exception to the normal operation of the Commerce Clause” and that its “relevance . . . to other constitutional provisions” is doubtful. “ ‘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.’ ”28 The holding on this point is “that the operation of the Twenty-first Amendment does not alter the application of the equal protection standards that would otherwise govern this case.”29 Other decisions reach the same result but without discussing the application of the Amendment.30 Similarly, a state “may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment.”31
The Court departed from this line of reasoning in California v. LaRue,32 in which it sustained the facial constitutionality of regulations barring a lengthy list of actual or simulated sexual activities and motion picture portrayals of these activities in establishments licensed to sell liquor by the drink. In an action attacking the validity of the regulations as applied to ban nude dancing in bars, the Court considered at some length the material adduced at the public hearings which resulted in the rules demonstrating the anti-social consequences of the activities in the bars. It conceded that the regulations reached expression that would not be deemed legally obscene under prevailing standards and reached expressive conduct that would not be prohibitable under prevailing standards,33 but the Court thought that the constitutional protection of conduct that partakes “more of gross sexuality than of communication” was outweighed by the state’s interest in maintaining order and decency. Moreover, the Court continued, the second section of the Twenty-first Amendment gave an “added presumption in favor of the validity” of the regulations as applied to prohibit questioned activities in places serving liquor by the drink.34
A much broader ruling resulted when the Court considered the constitutionality of a state regulation banning topless dancing in bars. “Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs.”35 This recurrence to the greater-includes-the-lesser-power argument, relatively rare in recent years,36 would if it were broadly applied give the states in the area of regulation of alcoholic beverages a review-free discretion of unknown scope.
In 44 Liquormart, Inc. v. Rhode Island,37 the Court disavowed LaRue and Bellanca, and reaffirmed that, “although the Twenty-first Amendment limits the effect of the dormant Commerce Clause on a state’s regulatory power over the delivery or use of intoxicating beverages within its borders, ‘the Amendment does not license the States to ignore their obligations under other provisions of the Constitution,’ ”38 and therefore does not afford a basis for state legislation infringing freedom of expression protected by the First Amendment. There is no reason, the Court asserted, for distinguishing between freedom of expression and the other constitutional guarantees (e.g., those protected by the Establishment and Equal Protection Clauses) held to be insulated from state impairment pursuant to powers conferred by the Twenty-first Amendment. The Court hastened to add by way of dictum that states retain adequate police powers to regulate “grossly sexual exhibitions in premises licensed to serve alcoholic beverages.” “Entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations.”39
- State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 64 (1936). In Craig v. Boren, 429 U.S. 190, 206–07 (1976), this case and others like it are distinguished as involving the importation of intoxicants into a state, an area of increased state regulatory power, and as involving purely economic regulation traditionally meriting only restrained review. Neither distinguishing element, of course, addresses the precise language quoted. For consideration of equal protection analysis in an analogous situation, the statutory exemption of state insurance regulations from Commerce Clause purview, see Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 655–74 (1981).
- 429 U.S. 190 (1976).
- 429 U.S. at 206 (quoting P. BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING — CASES AND MATERIALS 258 (1975).
- 429 U.S. at 209–210.
- E.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178–97 (1972) (invalidating a state liquor regulation as an equal protection denial in a racial context); Wisconsin v. Constantineau, 400 U.S. 433 (1971) (invalidating a state law authorizing the posting of someone as an “excessive drinker” and thus barring him from buying liquor, as reconstrued in Paul v. Davis, 424 U.S. 693, 707–09 (1976)).
- Larkin v. Grendel’s Den, 459 U.S. 116, 122 n.5 (1982).
- 409 U.S. 109 (1972).
- Cf. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (ban on live nude dancing in Borough); Doran v. Salem Inn, 422 U.S. 922 (1975) (ban on nude dancing in “any public place” applied to topless dancing in bars).
- 409 U.S. at 114–19. In Doran v. Salem Inn, 422 U.S. 922, 932–33 (1975), the Court described its holding in LaRue more broadly, saying that “we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as part of its liquor license control program.”
- New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981).
- For a rejection of the argument in another context, contemporaneously with Bellanca, see Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 657–68 (1981). For use of the argument in the commercial speech context, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345–46 (1986); this use of the argument in Posadas was disavowed in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). See also Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), not addressing the commercial speech issue but holding state regulation of liquor advertisements on cable TV to be preempted, in spite of the Twenty-first Amendment, by federal policies promoting access to cable TV).
- 517 U.S. 484 (1996) (statutory prohibition against advertisements that provide the public with accurate information about retail prices of alcoholic beverages is not shielded from constitutional scrutiny by the Twenty-first Amendment).
- 517 U.S. at 516 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984)).
- 517 U.S. at 515.