Equal Protection seems like a simple legal concept, stemming from post-Civil War sentiments that all men are created equal, deserve equal rights, and should be treated with equal respect under the law. Found in the Fourteenth Amendment, the Equal Protection Clause governs to all states, as it applies the Bill of Rights to state law.FN1 Although this Clause protects to all citizens and provides a Constitutionally secured right, its enforcement has proved to be one of the most divisive and contentious Constitutional law topics since its inception. The facets and subtleties of the meaning of the clause continue to change as our society confronts new social problems and issues that challenge the traditional notions of Equal Protection. Currently, there is incongruent jurisprudence on the topic, and Kentucky will confront and clarify these inconsistencies in the future as the meaning of Equal Protection increasingly expands.
On January 15, 2014 the Sixth Circuit decided Maxwell’s Pic-Pac, Inc. v. Dehner, ruling the Kentucky liquor laws, which ban the sale of high-content alcohol in grocery stores and gas stations, constitutional under equal protection.FN2 These laws provide for the discrimination between “grocery stores” and “gas stations,” which cannot sell liquor and wine, and other alcohol retailers that do not sell staple groceries and gas, which can sell beer, liquor, and wine.FN3 This take on equal protection, however, is complicated by the recent Supreme Court decision, U.S. v. Windsor, in which the Court struck down the Defense of Marriage Act (DOMA) and the ban on same-sex marriages.FN4 The Court found DOMA to be unconstitutional under the Equal Protection Clause,FN5 which could mean big changes for Kentucky, as the Kentucky Constitution currently states “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”FN6
The current inconsistency with Kentucky Equal Protection jurisprudence is that discrimination between types of alcohol retailers is permitted in the Sixth Circuit, but discriminatory treatment of same-sex couples who wish to marry is not permitted under Windsor. Based on the reasoning in Windsor, the Pic-Pac case may have been wrongly decided.
The Windsor Court refrained from using the traditional “rational-basis” test,FN7 which determines if the legislation in question is “rationally related to a legitimate state interest.”FN8 Instead, the Court decided that there was no legitimate interest in the law that could overcome its effect of disparaging and degrading those in same-sex relationships by refusing them marriage, thereby treating them with less respect than others in relationships who can marry. The Court found that there truly is “no legitimate purpose” for DOMA, despite the Dissent pointing out “many perfectly valid—indeed, downright boring—justifying rationales for this legislation.”FN9 In Pic-Pac, the Sixth Circuit decided that the ban on liquor sales in grocery stores and gas stations based on Prohibition-era rationales, such as reducing access to products with high-alcohol content and protecting abstinent citizens who wish to avoid retailers that sell these drinks. These “legitimate state interests” were enough for the Sixth Circuit to find that the legislation is rationally related to the valid interests of the states and therefore Constitutional under Equal Protection.FN10
But, both Courts seem to be taking an opposite stance on related and similar issues. In Windsor the Court decided that a ban on marriage for same-sex couples was degrading because had the effect of shaming those who took part in these “invalid” unions. In Pic-Pac, it seems that legislation that prevents alcohol sales in well-traveled places like grocery stores and gas stations has the same effect. It siphons-off the non-abstaining part of the population and forces them to go into separate stores. It has the same effect of shaming that DOMA had. The liquor law forces non-abstainers into different establishments, thus publically confirming their indulgence, which may not be acceptable in certain parts of the state; while, on the other hand, protecting those that do abstain from the alcohol they do not want to see or interact with. It seems as though the liquor law harms more than just the retailers, but the general public as well because the law protects the abstainers, while harming or restricting access to the non-abstainers.
Even though there may be some “rational” state interests in upholding the liquor laws to reduce access, just as though there may have been some “rational” state interests in preserving traditional marriage unions, the Windsor Court thought that the degrading nature of the law outweighed the potential benefits. A new look at Kentucky’s liquor law might yield the same result. Perhaps forcing non-abstainers into separate establishments for alcohol while protecting abstainers’ enticement-free shopping is similar not only to the degradation found in DOMA but also to segregation laws from the early 20th Century. The Commonwealth and Sixth Circuit should recognize, particularly in the wake of Windsor, that the liquor laws are indeed unconstitutional under Equal Protection, as they sacrifice the protection of one group for preserving the morality of another.
FN1. U.S. Const. amend. XIV, § 1.
FN2. Maxwell’s Pic-Pac, Inc. v. Dehner, 12-6056, 2014 WL 128129, at *7 (6th Cir. Jan. 15, 2014).
FN3. Id. at *4.
FN4. U.S. v. Windsor, 133 S. Ct. 2675 (2013).
FN5. Id. at 2680.
FN6. Ky. Const. § 233A.
FN7. Windsor, 133 S. Ct. at 2696.
FN8. Pic-Pac, 2014 WL 128129, at *5.
FN9. Windsor, 133 S. Ct. at 2696, 2707.
FN10. Pic-Pac, 2014 WL 128129, at *7.