| Craig v. Boren
(No. 75-628)
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| Syllabus
| Opinion
[ Brennan ] | Concurrence
[ Powell ] | Concurrence
[ Stevens ] | Concurrence
[ Blackmun ] | Concurrence
[ Stewart ] | Dissent
[ Burger ] | Dissent
[ Rehnquist ] |
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Craig v. Boren
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
MR. CHIEF JUSTICE BURGER, dissenting.
I am in general agreement with MR. JUSTICE REHNQUIST's dissent, but even at the risk of compounding the obvious confusion created by those voting to reverse the District Court, I will add a few words.
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." United States v. Raines, 362 U.S. 17, 22 (1960). There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them. [p216]
This is not Sullivan v. Little Hunting Park, 396 U.S. 229 (1969), or Barrows v. Jackson, 346 U.S. 249 (1953), for there is here no barrier whatever to Oklahoma males 18-20 years of age asserting, in an appropriate forum, any constitutional rights they may claim to purchase 3.2% beer. 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. Cf. Eisenstadt v. Baird, 405 U.S. 438, 445-446 (1972).
Nor is this controlled by Griswold v. Connecticut, 381 U.S. 479 (1965). 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
was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself.
405 U.S. at 445. This is plainly not the case here. See also McGowan v. Maryland, 366 U.S. 420, 429-430 (1961); Brown v. United States, 411 U.S. 223, 230 (1973).
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." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33 (1973). 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 [p217] textually independent constitutional status. See id. at 29-39 (education); Lindsey v. Normet, 405 U.S. 56 (1972) (housing). Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal McGowan v. Maryland, supra at 425-426, protection afforded by the Equal Protection Clause.
The means employed by the Oklahoma Legislature to achieve the objectives sought may not be agreeable to some judges, but since eight Members of the Court think the means not irrational, I see no basis for striking down the statute as violative of the Constitution simply because we find it unwise, unneeded, or possibly even a bit foolish.
With MR. JUSTICE REHNQUIST, I would affirm the judgment of the District Court.