Join the Military in the Alaska, Crack Open a Bud?

By Dara Poltrock

On April 1 the New York Daily News reported that Alaska State Representative Bob Lynn has introduced a bill that would allow military members under 21 to drink and smoke legally.  Mr. Lynn, a Vietnam Vet, let off steam to his blog followers, “It’s outrageous that a member of our military can be subjected to the horrors of war, but can’t legally have a beer or smoke a cigarette.”

The News discussed the policy arguments on either side of the debate:  Mr. Lynn and his supporters question how we can trust these soldiers to fire weapons, while not trusting them to handle a beer or two. But Mothers Against Drunk Driving (MADD) thinks the bill should be killed.  Anna Duerr, director of communications for MADD, explained, “MADD fully supports the courageous work of our men and women in uniform.” But  everyone should still “adhere to the federal 21 minimum drinking age law, which saves lives and protects still-developing young minds.”

Though the article highlighted reactions to the bill, it didn’t t mention the possible legal implications. Can a state implement a different minimum drinking age depending on whether you are a member of the military?  LASIS wanted to know:  How would a proposal like this fare if it was challenged in federal court?

Before delving into an analysis of the issue, it’s important to understand how courts would approach the topic.  Under the Constitution’s Equal Protection Clause, no state can enact legislation that advantages or disadvantages one group of people, but not another.  So when a state creates a law that applies differently to different classifications, such as military or non-military, it raises equal protection concerns.

To decide whether a law violates the Equal Protection Clause, courts use different standards of review depending on what classification is receiving the different treatment.  Strict scrutiny is the toughest standard for a state to overcome: at this level it is nearly impossible to convince the court that the discrimination is justified.  Intermediate scrutiny is less limiting; here the state must show that the discrimination serves an important government purpose.  The court’s default standard, rational basis, is the easiest for a state to satisfy.  A state only needs to show that it has a legitimate purpose for the different treatment.  Most classifications are subject only to rational basis review, unless they have a history of being discriminated against.

Getting back to the issue at hand, here’s what we think:

Because every state has had a minimum drinking age of 21 since 1984, there is little case law on recent legislation that has lowered the drinking age.  But a 1976 Supreme Court case determined that a law mandating different drinking ages for men and women violated the Equal Protection Clause.

In Craig v. Boren the plaintiffs challenged the validity of an Oklahoma statute prohibiting the sale of beer to males under 21, but allowing females over 18 to purchase it.  After the Court determined that gender classifications would be subject to intermediate scrutiny, it deemed the statute unconstitutional.  The state offered statistical evidence to prove why it was justified in implementing a different drinking age based on gender, but the Court held that the statistics were insufficient to satisfy intermediate scrutiny—the state had failed to show the discrimination served an important government purpose.

Mr. Lynn’s proposal concerns different classifications, but Craig sheds light on the Court’s reluctance to prescribe different minimum drinking ages for different people. Unlike the distinction made between men and women, distinguishing military or non-military would probably be subject to rational basis review.  As a result, it would be easier for a state to prove that the different age requirements are justified, as it would only have to show a legitimate state purpose for applying different standards to different classes.

But this lower standard may not be enough for the proposed law to survive.  After all, what legitimate interest could a state really have in lowering the drinking age for men and women in uniform?

And then there are the practical considerations…

Although states are responsible for setting their own minimum drinking age, every state has set their minimum age at 21 to be in compliance with the National Minimum Drinking Age Act of 1984.  If a state lowers its drinking age, it loses about ten percent of its federal funding for highway public transportation.  In today’s recessionary times, a state would not likely risk losing funding just so some of its citizens can kick back and have a beer.


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