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Beer Sellers Aren't a 'Suspect Class,' 7th Cir. Rules

By Jonathan R. Tung, Esq. on December 15, 2015 | Last updated on March 21, 2019

How do you keep underage teens from drinking beer? Obviously, by limiting the sale of cold beer to taverns, liquor stores, and bars! That's right, temperature is the key.

At least that's the argument promulgated by the state of Indiana. The Seventh Circuit said, "Sure, yeah right." And as weird as the rationale behind the law sounds, the real issue is whether or not it is fair to ban the sale of cold beer in some businesses and not in others. We challenge you to find weirder equal protection violation allegation before the year is out.

Indiana's "Cold Beer" Law

Indiana is unique in the United States in that it is the only jurisdiction in the country that places regulations on the sale of beer based on its temperature.

The plaintiffs in the case were a group of marketers and convenience stores who sought to invalidate Indiana's law which allows for the sale of cold beer only in taverns, bars, and other places where the beer would be consumed on the premises. They too wanted to have the ability to serve cold beer, and thus petitioned to have the law invalidated.

"Dealers" Versus "Retailers"

In Indiana, two license types exist that permit the sale of beer by the holder: a beer dealer's license and a beer retailer's license. The former authorizes the sale of non-chilled beer to customers for consumption off the premises. The latter authorizes the sale of any temperature beer (including chilled) on the premises.

And why does this matter to the convenience stores? Customers.

If the law is invalidated for any reason, customers will no longer be limited to going to bars and taverns if they want a chilled one. They can go to the local gas station or Wal-Mart. In other words, the law favors bars.

Equal Protection Classifications: Cold Beer Sellers?

The circuit court affirmed the lower district court ruling; and while it disagreed with Indiana's argument that the state had "nearly absolute" authority of how to regulate beer sales within its borders, it did agreed that the 21st Amendment did give broad power to the states to regulate alcohol sales. Even though Indiana's law places heavy regulations on the sale and purchase of alcohol, it is reasonable given the classes involved.

Beer Sellers Are NOT a Suspect Class

It was clear from the beginning of the opinion that things did not look good for the plaintiffs. They sought to paint themselves as just another seller of alcohol. The problem with this strategy is immediately apparent to lawyers who will appreciate that beer selling is not a suspect class deserving of strict scrutiny protection. As a result, the circuit court found that the plaintiffs carried the heavy burden of proving that the cold-beer law was not in some way rationally related to the legitimate purpose of reducing underage drinking.

The state could have almost said anything, but rational-basis review all but guaranteed that the court would have found for the state -- which they did. In failing to "negat[e] every conceivable basis which might support" the law, the circuit upheld this rather peculiar state scheme that protects the interests of local businesses -- a seeming (but apparently not actual) infringement of the Dormant Commerce Clause.

How interesting that the temperature of beer would be a case study in Constitutional Law.

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