Loyola Law Review
MANUEL v. STATE: BLURRING THE LINE BETWEEN FEDERAL EQUAL PROTECTION AND LOUISIANA INDIVIDUAL DIGNITY
Victor C. Johnson
Copyright (c) 1997 by the Loyola University, Loyola Law Review; Victor C. Johnson
Reprinted with permission of the author,
Victor C. Johnson .
On August 15, 1995, Jody W. Manuel and Stacy P. Foret, Louisiana citizens under the age of twenty-one, and Burke G. Pierrotti and Wendell J. Manuel ("Manuel"), Louisiana retailers of alcoholic beverages, filed suit in Evangeline Parish challenging Louisiana's minimum age drinking laws as unconstitutional age discrimination. [FN1] The suit contested that Louisiana Revised Statutes 14:93.10 [FN2] through 14:93.14, 26:90, [FN3] and 26:286, [FN4] ("Louisiana Minimum Drinking Age Laws"), violated Article 1, Section 3 [FN5] of the Louisiana Constitution of 1974 ("Individual Dignity Clause"). Manuel, naming the State of Louisiana ("State") as defendant, [FN6] sought an injunction against the statutes' enforcement and a declaratory judgment declaring the statutes unconstitutional. [FN7]
On August 15, 1995, the trial judge issued a temporary restraining order, preventing the enforcement of Louisiana's Minimum Drinking Age Laws pending the hearing on the preliminary injunction. [FN8] On August 24, 1995, the trial judge granted the plaintiffs' declaratory judgment holding that Louisiana's Minimum Drinking Age Laws constituted arbitrary age discrimination and prohibited the enforcement of the statutes throughout the state by granting the preliminary injunction. [FN9]
On that same day, the State, pursuant to Louisiana Revised Statute 13:4431 [FN10] and Article V, Section 5(D) [FN11] of the 1974 Louisiana Constitution, filed a Petition for Suspensive Appeal to the Louisiana Supreme Court. After the trial court erroneously refused to grant the appeal, [FN12] the State filed an application for a Supervisory Writ [FN13] to the Louisiana Supreme Court which the court granted on August 24, 1995, [FN14] thus staying the trial court's ruling. [FN15]
On March 8, 1996, the supreme court on original hearing affirmed the trial court's declaration that Louisiana's Minimum Age Drinking Laws were unconstitutional age discrimination. [FN16] On that same day, the court granted the State's application for rehearing to reconsider the correctness of the decision and withdrew its original opinion. [FN17] On rehearing, the Louisiana Supreme Court reversed its original opinion and held that Louisiana's Minimum Drinking Age Laws, establishing the minimum drinking age at a level higher than the age of majority, were not arbitrary because they substantially furthered the appropriate governmental purpose of improving highway safety, and thus were constitutional. Manuel v. State, 677 So.2d 116, 118 (La.1996).
Prior to the adoption of the 1974 Louisiana Constitution, Louisiana law provided no express guarantee to equal protection of laws. [FN18] Rather, violations of equal protection were protected solely by the federal guarantee of equal protection in the Fourteenth Amendment to the United States Constitution [FN19] and analyzed by the federal three-tiered standard of review of rational basis, intermediate, and strict scrutiny. [FN20] Under rational basis scrutiny, the constitutionality of the contested legislation will be upheld as long as the classification drawn bears a rational relationship to a legitimate state purpose. [FN21] Intermediate scrutiny is applied when legislation classifies persons based on semi-suspect classification and will be upheld if the legislation serves important governmental objectives and is substantially related to the achievement of those objectives. [FN22] Strict scrutiny is applied only when legislative classification interferes with a fundamental right [FN23] or operates against a suspect class [FN24] and is presumed unconstitutional unless the legislation is shown to be necessarily related to a compelling state interest and must be narrowly tailored to achieve that interest. [FN25]
In an attempt to provide greater protection for individual rights of Louisiana citizens and to eliminate the perceived failings of the United States Supreme Court in affording adequate protection to the individual, [FN26] the Declaration of Rights committee expressly provided for the right to individual dignity in the 1974 Louisiana Constitution. [FN27] The Individual Dignity Clause requires the courts to prohibit enforcement of legislation based on classification in three situations. [FN28] First, when the legislation classifies individuals on the basis of race or religious beliefs, such legislation is repudiated completely. [FN29] Second, when the legislation classifies individuals on the basis of one of the six enumerated categories, [FN30] the legislation is presumed unconstitutional and the proponent of the classification has the burden of establishing that the classification is not arbitrary, capricious, or unreasonable because it substantially furthers an appropriate governmental objective. [FN31] Third, when the legislation classifies individuals on any basis not enumerated in the section, it will be upheld unless the discriminated individual shows that the legislation does not suitably further any appropriate state interest. [FN32] Despite the attempt to enlarge the rights of Louisiana citizens, [FN33] Louisiana courts continued to employ the federal three-tiered standard to equal protection claims without scrutinizing the Louisiana Constitution's Individual Dignity Clause. [FN34]
However, in 1985 the Louisiana Supreme Court, in Sibley v. Board of Supervisors of Louisiana State University, analyzed for the first time the Individual Dignity Clause as a separate tripartite system, distinct from its federal counterpart. [FN35] In Sibley, the plaintiff filed a malpractice suit against a state hospital. [FN36] Pursuant to Louisiana Revised Statute 40:1299.39, prohibiting malpractice judgments in excess of $500,000 against the state, the defendant's liability was limited to the statutory maximum which was significantly below plaintiff's actual damages. [FN37] Hence, the Sibley court was asked to decide whether the judgment limitation violated the Individual Dignity Clause, as discrimination based on physical condition. [FN38] The court concluded that the federal three-tiered standard was a rigid, disordered, and theoretically unsound framework for constitutional adjudication and should not be used as a model for the interpretation or application of Louisiana's Individual Dignity Clause. [FN39] The court reasoned that because the delegates to the convention had contemplated greater protection against arbitrary discrimination due to the federal courts' failure to afford "real or substantial protection by applying the Fourteenth Amendment to legislation based on all these classifications," [FN40] Louisiana had moved from having "no equal protection clause to that of having three provisions going beyond the decisional law construing the Fourteenth Amendment." [FN41]
Based on this reasoning, the court formulated a new framework in analyzing legislative classification of individuals. First, when the legislation classifies individuals by race or religious beliefs, it shall be repudiated completely. [FN42] Second, when the legislation classifies individuals on the "basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis." [FN43] Third, when the legislation classifies individuals on any other basis, "it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest." [FN44] After establishing these guidelines, the court held that revised statute 40:1299.39 arbitrarily discriminated against one class of individuals based on their physical condition and could be upheld only if the state could show that the legislative classification substantially furthered a legitimate state purpose. [FN45]
The supreme court further distinguished the federal standard from the Sibley model in Pace v. State of Louisiana, Through Louisiana State Employees Retirement System. [FN46] In Pace, an unmarried woman applied for survivors' benefits from the Louisiana State Employees Retirement System (Lasers, Inc.), claiming that a deceased state employee was the father of her two children. [FN47] Lasers, Inc. denied the claim because pursuant to Louisiana Revised Statutes 42:543(19), 42:602, and 42:604, [FN48] the children were not entitled to recovery. [FN49] Consequently, the Pace court was asked to decide whether this statutory classification contravened the Individual Dignity Clause by discriminating against a person because of birth. [FN50] The supreme court concluded that the classification discriminating against illegitimate children did not present a reasonable opportunity for the assertion of their claims and did not substantially further the state's asserted interest in avoiding stale or fraudulent claims. [FN51]
The court, in deciding whether the restriction placed on the classification substantially furthered the state's interests, focused their attention on three factors: first, examining the statute to determine whether it substantially furthered the state's interests; second, whether the state's interest could be served more effectively by adopting a non-discriminatory alternative; and third, whether the asserted state interest in the discriminatory classification is undercut by a countervailing state interest. [FN52] Based on this reasoning, the court held that the statutes violated the illegitimate children's rights under the Individual Dignity Clause. [FN53]
In 1986, the Louisiana Legislature passed Act 33 of 1986 ("Act 33") [FN54] in response to Congress' adoption of 23 U.S.C. s 158. [FN55] Act 33 raised Louisiana's minimum drinking age to twenty-one by providing that it shall be unlawful for any person over the age of eighteen and under the age of twenty-one to purchase or have public possession of alcoholic beverages. [FN56] While Act 33 made purchase and public possession of alcoholic beverages by persons under twenty-one illegal, it did not provide penalties for selling alcoholic beverages to such persons. [FN57] Additionally, while this anomaly did not prevent Louisiana from receiving full federal highway funding under section 158, the practical effect made the act unenforceable. [FN58]
In 1995, in an effort to alleviate this 'loophole,' Louisiana Legislature passed Act 639 of 1995 ("Act 639") to amend and reenact Louisiana Revised Statutes 26:90 and 26:286, [FN59] to enact Revised Statutes 14:93.10 through 14:93.14, [FN60] and to repeal Revised Statutes 14:91.1 through 14:91.5. [FN61] Act 639 retained the criminal sanctions for the purchase or public possession of alcoholic beverages by persons under the age of twenty-one, but added penalties to retailers of alcoholic beverages for selling alcoholic beverages to persons under the age of twenty-one, "thus closing the previous 'loophole' which had made the minimum drinking age law unenforceable as a practical matter." [FN62]
In the 1996 case of Louisiana Associated General Contractors, Inc. v. State of Louisiana (LAGC), [FN63] the supreme court for the first time addressed the Individual Dignity Clause as it applied to discrimination on the basis of race. [FN64] In LAGC, the plaintiff filed suit against the state seeking to have Louisiana Revised Statute 39:1951 (Louisiana Minority and Women's Business Enterprise Act) declared unconstitutional when the Louisiana Health Care Authority designated the renovation project at the Perdido Clinic of University Hospital as a minority set-aside. [FN65] Consequently, the LAGC court was asked to decide whether mandatory minority set-aside programs and preference *144 programs unconstitutionally violated the Individual Dignity Clause as discrimination based on race. [FN66] The supreme court concluded that legislation classifying individuals on the basis of race is to be "repudiated completely, regardless of the justification behind the racial discrimination." [FN67]
The court began its analysis by declaring that by the express literal language of the Individual Dignity Clause, as well as by the intent of its drafters and the voters who ratified the provision, the clause gave "the citizens of this state greater equal protection rights than are provided under the Fourteenth Amendment." [FN68] The court found most compelling the defeating of a proposed equal protection clause conforming substantially to the federal constitution provision as clear and unambiguous proof that the citizens of this state moved "above and beyond [equal protection of the laws] protected under the federal Constitution and its interpreting jurisprudence." [FN69] Based on this reasoning, the court held that the act violated the Individual Dignity Clause by "racial classifications through the use of minority set-asides and preferences." [FN70]
On original hearing, the State in the noted case argued that Louisiana's Minimum Age Drinking Laws were not arbitrary, capricious, or unreasonable because they substantially furthered important governmental objectives. [FN71] The State also argued that Louisiana's Minimum Age Drinking Laws substantially furthered important governmental objectives by maintaining Louisiana's compliance with 23 U.S.C. s 158, [FN72] thus ensuring the receipt of federal highway funds and improving highway safety by reducing the incidences of alcohol related serious injuries and fatalities in the eighteen to twenty-one year age group. [FN73] The *145 court found that the discriminated age group was not responsible for the greatest number of alcohol related accidents; thus, prohibiting the sales of alcoholic beverages by the discriminatory classification to that age group neither directly implicated nor substantially furthered the State's objective of increasing highway safety. [FN74]
In the noted case on rehearing, the supreme court began its analysis with an examination of the Individual Dignity Clause. [FN75] The court again expressly repudiated the federal three-tiered standard of review as a model for interpreting the state constitution and noted that the express language of the constitution sets up a "spectrum for analyzing equal protection challenges." [FN76] The court declared that under Article I, Section 3 of the Louisiana Constitution, [FN77] laws at one end of the spectrum, based on race or religious beliefs, are repudiated completely, while laws at the other end, classifying persons on any non-enumerated category, must be rationally related to a legitimate governmental purpose with the opponent of such classification having the "stringent burden of demonstrating that the law does not suitably further any appropriate state interest." [FN78] In the middle of the spectrum, legislation based on one of the enumerated categories is presumed unconstitutional and reviewed with a heightened standard of scrutiny, requiring the proponent of the legislation to establish that the classification is not "arbitrary, *146 capricious or unreasonable because it substantially furthers an appropriate governmental objective." [FN79] The Manuel court then concluded that "[t]he narrow issue is thus whether the age classification in these statutes substantially furthers [the governmental purpose of improving highway safety]." [FN80]
For guidance in the determination of the issue, the court stated the inquiry should focus on the reasons and effect of removing the discriminated class from the non-discriminated class, the relation of the two classes to each other by comparison in alcohol-related accidents, and consideration of the reasons for raising the minimum drinking age in order to affect highway safety. [FN81] The court observed that the statutes will improve highway safety for all motorists by removing an "over-represented" [FN82] group from the group of licensed drivers who are allowed to drink alcohol legally. The court concluded that "[a] lthough any prohibition in the use of alcohol would have some beneficial effect on alcohol-related accidents, ... the increase in the drinking age to twenty- one [will] have a significantly greater effect in reducing alcohol-related accidents." [FN83]
Moreover, the court clarified the Pace decision as a "specific application of the Sibley standard to a concrete factual record and that Pace neither altered nor expanded the Sibley standard." [FN84] The Manuel court declared that the three factors were *147 neither part of the holding nor "adopted as mandatory requirements for the intermediate level of scrutiny." [FN85] Despite this limitation, the supreme court nonetheless addressed each separately. First, the court noted the innocuous language of Pace stating that the state's interests were not actually implicated by the legislation, and indicated that there was not a substantial relationship between the classification and the asserted state's interests. [FN86] Second, the court observed that the requirement of proving non-discriminatory alternative methods is a burden rarely applied under intermediate scrutiny and more appropriate under federal strict scrutiny cases involving suspect classes or fundamental rights and not the Sibley model. [FN87] Finally, the supreme court noted that the Sibley intermediate standard made no requirement that the proponent of the legislation prove that the classification does not undercut any countervailing governmental interest. [FN88] Thus, the court concluded that the Sibley model merely requires that there be a substantial relationship between the classification and the asserted governmental interest. [FN89]
Based on this understanding, the court then addressed whether the asserted governmental interest of improving highway safety was substantially furthered in light of the statutory exception. [FN90] The court reasoned that the statutory exceptions did not undermine the asserted governmental interest because they recognized the division between state and family controlled settings and the "reality that the Legislature can control alcohol acquisition, possession and consumption in certain settings, but cannot exercise control ... in certain other settings." [FN91] Therefore, the court held that Louisiana's Minimum Drinking Age *148 Laws were constitutional and not arbitrary because they substantially fevered the government interest of improving highway safety. [FN92]
The noted case is significant because the Louisiana Supreme Court had the opportunity to emphasize the difference between federal equal protection and Louisiana individual dignity, but regrettably blurred the two. The difference, as the Sibley court recognized, is that the state standard is stricter with respect to arbitrary discrimination than the federal standard. [FN93] After the decision not to review intermediate scrutiny by requiring that the discriminatory legislation be tested under the Pace factors, the inevitable question arises: exactly what is the difference between the two standards?
The result of Manuel diminishes the distinctions between the federal three-tiered standard and the Sibley standard, especially for enumerated classes. [FN94] LAGC retains the greater protection envisioned by the drafters and voters who ratified the 1974 Constitution for the Individual Dignity Clause by following the express language of the clause and its intention by commanding complete repudiation for any racial or religious discrimination. [FN95] However, Manuel adopts federal intermediate scrutiny and the Sibley model for discrimination based on an enumerated class as "virtually the same." [FN96] Additionally, the court's decision breezes over precedent interpreting the enumerated classes under a heightened standard, [FN97] beyond federal decisional law, disavowing the notion that the clause provides greater protection against arbitrary discrimination than the federal standard. [FN98]
Equally troubling is the court's statement that the Sibley standard for enumerated classes and the federal intermediate scrutiny standard are "virtually the same." [FN99] This is troubling *149 because it is in direct conflict with Sibley's outright rejection of the federal three-tiered standard and the delegates' intent. [FN100] Because of the express guarantee of protection against discrimination based on the enumerated categories, the Louisiana Constitution affords stronger protection for equal protection of the laws than can be found in the United States Constitution. Additionally, the textual differences between the state and federal provisions emphasize that the Individual Dignity Clause was intended to provide a level of protection above the minimum standard set by the federal counterpart. [FN101]
Also troubling is the court's empirical
reasoning that because the discriminated class is over-represented in alcohol
related accidents, their removal from the non-discriminated class "has to increase
highway safety substantially." [FN102] However, the legislation fails to take
into account any displacement of this over-represented class into the class
with the greatest number of incidents and the affect it may have in diminishing
highway safety. [FN103] The Louisiana Constitution provides the "[o]pportunity
for the fullest development of the individual." [FN104] The Manuel opinion leaves
that development without the heightened scrutiny envisioned by the Louisiana
FN1. Appellant's Original Brief of the
Attorney General on Behalf of All State Defendants at 4, Manuel v. State, 677
So.2d 116 (La.1996) (No. 95-CA-2189) [hereinafter Appellant's Original Brief].
Plaintiff's commenced the suit as a class action, which was not certified, representing
two subclasses--purchasers between the ages of eighteen and twenty-one who wished
to obtain alcoholic beverages and retailers who wished to sell or serve alcoholic
beverages to them. Id.
FN2. La.Rev.Stat.Ann. s 14:93.10-.14
(West Supp.1997). Revised Statute 14:93.10(2) provides in pertinent part: "Public
possession" does not include the following: (a) The possession or consumption
of any alcoholic beverage: (i) For an established religious purpose. (ii) At
a function sponsored by a bona fide nonprofit organization ... where an individual
had received or purchased a ticket for admittance. (iii) When a person under
twenty-one years of age is accompanied by a parent or legal custodian twenty-one
years of age or older. (iv) For medical purposes.... (v) In private residences.
La.Rev.Stat.Ann. s 14:93.10 (West Supp.1997). Revised Statute 14:93.11(A) provides
in pertinent part: "Unlawful sales to persons under twenty-one is the selling
... of any alcoholic beverage to any person under twenty-one years of age."
La.Rev.Stat.Ann. s 14:93.11(A) (West Supp.1997). Revised Statute 14:93.12(A)
provides in pertinent part: "It is unlawfully for any person under twenty-one
years of age to purchase or have public possession of any alcoholic beverage."
La.Rev.Stat.Ann. s 14:93.12(A) (West Supp.1997). Revised Statute 14:93.13(A)
provides in pertinent part: "It is unlawful for any person, other than a parent
or legal custodian ... to purchase on behalf of a person under twenty-one years
of age any alcoholic beverage." La.Rev.Stat.Ann. s 14:93.13(A) (West Supp.1997).
Revised Statute 14:93.14 provides: "Nothing in R.S. 14:93.10 through 93.13 shall
be construed as relieving any licensed retail dealer in alcoholic beverages
any responsibilities imposed under the provisions of Title 26 of the Louisiana
Revised Statutes of 1950." La.Rev.Stat.Ann. s 14:93.14 (West Supp.1997).
FN3. La.Rev.Stat.Ann. s 26:90 (West 1989
& Supp.1997). Revised Statute 26:90 provides in pertinent part: "No person
holding a retail dealer's permit ... shall ... [s]ell or serve alcoholic beverages
to any person under the age of twenty-one years.... Violation of this Section
is ... sufficient cause for the suspension or revocation of a permit...." Id.
FN4. La.Rev.Stat.Ann. s 26:286 (West
1989 & Supp.1997). Revised Statute 26:286 provides in pertinent part: "No
person holding a retail dealer's permit shall ... [s]ell or serve beverages
of low-alcoholic content to any person under the age of twenty-one.... Violation
of this Section is ... sufficient cause for the suspension or revocation of
a permit...." Id.
FN5. Manuel, 677 So.2d at 118. Article
I, section 3--entitled "Right to Individual Dignity"--of the Louisiana Constitution
provides: No person shall be denied the equal protection of the laws. No law
shall discriminate against a person because of race or religious ideas, beliefs,
or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate
against a person because of birth, age, sex, culture, physical condition, or
political ideas or affiliations. Slavery and involuntary servitude are prohibited,
except in the latter case as punishment for crime. La. Const. art. I, s 3 (emphasis
added). See also Pace v. State, 648 So.2d 1302 (La.1995) (discussing Louisiana's
express guarantee of a right to individual dignity and arbitrary discrimination
based on enumerated grounds), cited in Manuel, 677 So.2d at 123.
FN6. Manuel, 677 So.2d at 116. In addition,
Plaintiffs named Governor Edwin Edwards, Attorney General Richard Ieyoub, District
Attorney J. William Pucheu, and Commissioner Terry Pitre. Id.
FN7. Id. at 118.
FN8. Manuel v. State, No. 95-CA-2189,
slip op. at 2 (La. Mar. 8, 1996), opinion withdrawn on grant of reh'g, 1996
WL 100802 (La. Mar. 8, 1996), rev'd, 677 So.2d 116, cited in Manuel, 677 So.2d
FN10. La.Rev.Stat.Ann. s 13:4431 (West
1989). Revised Statute 13:4431 provides in pertinent part: "In any case where
any district court has granted any ... preliminary injunction ... which may
restrain the execution or enforcement of any ... law ... of Louisiana, the defendant
... may suspensively appeal ... to the court of competent appellate jurisdiction."
FN11. La. Const. art. V, s 5(D)(1). Section
5(D)(1) provides: "In addition to other appeals provided by this constitution,
a case shall be appealable to the supreme court if (1) a law or ordinance has
been declared unconstitutional...." Id.
FN12. Manuel, No. 95-CA-2189, slip op.
at 2 (opinion on original hearing).
FN13. LA.ST.S.CT.R. 10 (West Supp.1997).
Rule 10 provides in pertinent part: "[T]he follow ... indicate the character
of the reasons that ... must ordinarily be present in order for an application
[for a Supervisory Writ] to be granted: ... [a] court of appeal has erroneously
interpreted or applied the constitution ... of this state...." Id.
FN14. Manuel, No. 95-CA-2189, slip op.
at 2 (opinion on original hearing). On September 21, the parties entered a stipulation
converting the trial court's preliminary injunction to a permanent injunction
thus closing the trial court proceedings. Id.
FN15. Manuel, 677 So.2d at 118 n.l.
FN16. Manuel, No. 95-CA-2189, slip op.
at 21 (opinion on original hearing). The court held that when a law singles
out a particular age group for different treatment under the law, the classification
was constitutional only if it was the classification that most directly implicated
or furthered the asserted state interest. Id. at 6.
FN17. Manuel, No. 95-CA-2189, 1996 WL
100802 (La. Mar. 8, 1996).
FN18. For a discussion on the state of
the law prior to the 1974 Louisiana Constitution, see Hargrave, The Declaration
of Rights of the Louisiana Constitution of 1974, 35 LA.L.REV. 1 (1974).
FN19. U.S. Const. amend. XIV, s 1. Section
1 provides in pertinent part: "[N]o State shall ... deny to any person within
its jurisdiction the equal protection of the laws." Id.
FN20. Sibley v. Board of Supervisors
of La. State Univ., 477 So.2d 1094, 1105 (La.1985), cited in Manuel, 677 So.2d
FN21. McGowan v. Maryland, 366 U.S. 420,
426 (1961). See also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
FN22. Reed v. Reed, 404 U.S. 71 (1971)
(first Supreme Court decision to invalidate gender discrimination by establishing
that gender constituted a semi-suspect class and must bear a substantial relationship
to a state objective that is sought to be advanced by the operation of the statute).
See also Graham v. Richardson, 403 U.S. 365 (1971) (holding alienage a semi-
suspect class); Oyama v. California, 332 U.S. 633 (1948) (holding ancestry a
FN23. Skinner v. Oklahoma, 316 U.S. 535
(1942) (first Supreme Court decision holding that the Fourteenth Amendment protects
certain fundamental rights under equal protection of laws including marriage
and procreation). See also Bullock v. Carter 405 U.S. 134 (1972) (holding right
to vote a fundamental right); Shapiro v. Thompson, 394 U.S. 618 (1969) (holding
interstate travel a fundamental right); Williams v. Rhodes, 393 U.S. 23 (1968)
(holding rights under First Amendment fundamental rights).
FN24. Korematsu v. United States, 326
U.S. 214 (1944) (first Supreme Court decision holding race a suspect class and
last Supreme Court decision upholding intentional race-specific discrimination).
FN25. Adarand Constructors, Inc. v. Pena,
115 S.Ct. 2097, 2113 (1995).
FN26. Michael L. Berry, Jr., Comment,
Equal Protection--The Louisiana Experience in Departing from Generally Accepted
Federal Analysis, 49 LA.L.REV. 903, 906 (1989). "It's been too many times that
even the Supreme Court of the United States has dodged the issue with respect
to equal protection." Id. at n.18 (quoting Records of the Louisiana Constitutional
Convention of 1973).
FN27. La. Const. art. 1, s 3. For text
of Individual Dignity Clause see supra note 5.
FN28. Sibley, 477 So.2d at 1107.
FN29. Louisiana Associated Gen. Contractors,
Inc. v. State, 669 So.2d 1185 (La.1996), cited in Manuel, 677 So.2d at 119.
See also Sibley, 477 So.2d at 1107 n. 20. "The authors believe that there is
absolutely no basis for any discrimination of any sort on the basis of, on the
account of race or religion...." Id. (quoting Records of the Louisiana Constitutional
Convention of 1973).
FN30. See supra note 5 for text of the
Individual Dignity Clause's enumerated categories.
FN31. Manuel, 677 So.2d at 119. See also
Sibley, 477 So.2d at 1107 n. 21. "[T]his section ... merely shifts to the state
the burden of proving that if a law or policy is discriminatory with respect
to any of these categories, that state must prove that the basis for the discrimination
is founded on reason." Id. (quoting Records of the Louisiana Constitutional
Convention of 1973).
FN32. Sibley, 477 So.2d at 1108 n. 22.
"[This class has] the burden of proving two things. The discrimination against
them in whatever class they happen to be, and the fact that there is no reasonable
basis for it...." Id. (quoting Records of the Louisiana Constitutional Convention
FN33. See, e.g., Arizona v. Evans, 115
S.Ct. 1185, 1190 (1995) (holding state courts are free to interpret state constitutional
provisions to accord greater protection to individual rights than provisions
of the United States Constitution).
FN34. Lovell v. Lovell, 378 So.2d 418
(La.1979). See also Succession of Robins, 349 So.2d 276 (La.1977) (where supreme
court took notice of the Individual Dignity Clause, yet applied the federal
three-tiered standard); Southland Corp. v. Collector of Revenue for La., 321
So.2d 501 (La.1975) (where supreme court judged equal protection claim solely
on federal standard).
FN35. Sibley, 477 So.2d 1094.
FN36. Id. at 1098.
FN38. Id. at 1104. See supra note 5 for
text of Individual Dignity Clause.
FN39. Sibley, 477 So.2d at 1104-07. See
supra notes 20-25 and accompanying text for a discussion of the federal three-tiered
FN40. Sibley, 477 So.2d at 1108.
FN42. Id. at 1107.
FN45. Id. at 1107-09. The court found
that the statute created two classes: First, a group who could recover all their
damages under the statute because their award would not exceed the statutory
limitation; and second, a disadvantaged group who could not recover all their
damages because their award would exceed the statutory limit. Id. at 1108.
FN46. Pace, 648 So.2d 1302.
FN47. Id. at 1304.
FN48. Id. at 1304-05.
FN49. Id. The statutes provided that
an illegitimate child of the male member must obtain a judgment of paternity
or filiation during the lifetime of that member in order to receive survivors'
benefits, while illegitimate children of female members are eligible without
such a judgment. Id. at 1304.
FN50. Id. at 1304. See supra note 5 for
text of Individual Dignity Clause.
FN51. Pace, 648 So.2d at 1307. The state
also asserted that the classification furthered the state's interests of discouraging
immoral behavior and protecting the family by conserving the family's patrimony.
Id. at 1308. The court concluded these were not legitimate state interests.
FN52. Id. at 1308-10.
FN63. Id. at 1310.
FN54. 1986 La. Acts 33, s 1 (repealed
by 1995 La. Acts 639, s 3) and (codified at La.Rev.Stat.Ann. s 14:91.1-.5).
Former Louisiana Revised Statute 14:91.1 provided: "It is unlawful for any person
seventeen years of age to purchase ... [or] possess any alcoholic beverage...."
La.Rev.Stat.Ann. s 14:91.1 (West 1992). Former Louisiana Revised Statute 14:91.2
provided: "It is unlawful for any person under the age of seventeen to purchase
or possess any alcoholic beverage...." La.Rev.Stat.Ann. s 14:91.2 (West 1992).
Former Louisiana Revised Statute 14:91.3 provided: "It is unlawful for any adult
to purchase on behalf of a person under the age of eighteen any alcoholic beverage...."
La.Rev.Stat.Ann. s 14:91.3 (West 1992). Former Louisiana Revised Statute 14:91.4
provided: "Nothing in [this act] shall be construed as relieving any licensed
retail dealer in beverages of ... alcoholic content of any responsibilities
imposed upon said dealer...." La.Rev.Stat.Ann. s 14:91.4 (West 1992). Former
Louisiana Revised Statute 14:91.5 provided: "It shall be unlawful for any person
eighteen years of age or older and under twenty-one years of age to purchase
or have public possession of any alcoholic beverage." La.Rev.Stat.Ann. s 14:91.5
(West Supp.1997) (emphasis added).
FN55. See infra note 72 for text of section
FN56. 1986 La. Acts 33, s 1 (repealed
by 1995 La. Acts 639, s 3) (codified at La.Rev.Stat.Ann. s 14:91.1-.5). See
supra note 54 for text of Revised Statutes 14:91.1-.5.
FN57. Manuel, 677 So.2d at 118.
FN58. Manuel, No. 95-CA-2189, slip op.
at 3 (option on original hearing).
FN59. See supra notes 3-4 for text of
Revised Statutes 26:90, 26:286.
FN60. See supra note 2 for text of Revised
FN61. See supra note 54 for text of Revised
FN62. Manuel, 677 So.2d at 118.
FN63. 669 So.2d 1185 (La.1996).
FN64. See supra note 5 for text of Individual
FN65. LAGC, 669 So.2d at 1189. The act required all state agencies to allocate a percentage of funds expended on public works and procurement contracts to be designated for bidding to certain designated races, while excluding others. Id. at 1188. The act applied to all state agencies, all state work contracts, and all procurement contracts for goods and services by state agencies and educational institutions. Id. Additionally, the act set mandatory percentage requirements for women's business enterprises. Id. Finally, the act mandated "preferences" in limited situations where minority enterprises were given the opportunity to match the lowest bid made by a non- minority bidder. Id. at 1189.
FN66. Id. at 1188.
FN67. Id. at 1198.
FN68. Id. at 1196.
FN69. Id. at 1198.
FN70. Id. at 1202.
FN71. Appellant's Original Brief, at
FN72. 23 U.S.C. s 158 (1996). Section
158--entitled National Minimum Drinking Age--provides in pertinent part: "[T]he
Secretary shall withhold 5 per centum of the amount required to be apportioned
to any State [for the first year] ... in which the purchase ... of any alcoholic
beverage by a person ... less than twenty-one years of age is lawful ... 10
per centum of the amount required to be apportioned to any State [after the
first year]...." Id.
FN73. Appellant's Original Brief, at
6-16. The State contended that falling out of compliance with section 158 would
result in the withholding of $8,979,400 for the first year and $18,000,000 thereafter.
Id. at 11. Additionally, the State argued that because eighteen to twenty-one
year olds are over-represented in alcohol-related crashes, the increase in the
drinking age would save lives and improve the safety of the state's highways
by reducing the number of fatal and injurious crashes. Id. at 13-16.
FN74. Manuel, No. 95-CA-2189, slip op.
at 15 (opinion on original hearing). The court found the State's argument of
reducing the incidences of DWI's, and injurious and fatal automobile accidents
in that age group circular and illegitimate. Id. First, targeting a specific
age group for a reduction in that age group begs the question of whether there
is a legitimate reason. Id. at 8. Second, because every age group of licensed
drivers had some incidences of DWI's and alcohol related accidents, prohibiting
the sale to any age group would necessarily lead to a reduction in the number
of incidences in that age group but did not justify the initial selection of
that group for discrimination. Id. Finally, reasoning that discrimination in
that age group substantially furthered the important governmental objective
of reducing the incidences of DWI's and alcohol related accidents among that
age group, was circular because the State could choose any age group and justify
the discrimination by simply asserting that the law will reduce the number of
incidences in that age group. Id.
FN75. Id. For text of Article I, section
3, see supra note 5.
FN76. Manuel, 677 So.2d at 119 (citing
Sibley, 477 So.2d at 1107).
FN77. La. Const. art. I, s 3.
FN79. Id. The court emphasized the difference
between the federal and Sibley models by noting that under the federal system,
the standard of review for legislation based on age is the minimum standard,
compared to Louisiana's heightened standard. Id. at 120 n. 4 (citations omitted).
FN80. Id. at 120. The court noted that
on original hearing the majority framed the issue as "whether eighteen to twenty-one
year olds are the age group responsible for the greatest number of alcohol related
accidents in Louisiana" and focused on the fact that this age group was not
responsible for the greatest number of alcohol related accidents. Id. (emphasis
in original). However, in the context of a legislation that discriminates on
the basis of age, it may be argued that the issue was whether the classification
most directly implicates or furthers the asserted governmental interest. Manuel,
No. 95-CA-2189, slip op. at 6 (opinion on original hearing).
FN81. Manuel, 677 So.2d at 121.
FN82. Id. at 120 n. 6. An "over-represented"
group is a specific group who has a greater percentage representation compared
to their respective percentage within the general group. Id. Thus, eighteen
to twenty-one year olds were "over-represented" in Louisiana's alcohol-related
accidents in 1993, because they represented five percent of Louisiana licensed
drivers, but accounted for ten percent of these accidents. Id. at 122.
FN84. Id. at 123. For a discussion of
Pace, see supra notes 46-53 and accompanying text.
FN85. Manuel, 677 So.2d at 124.
FN87. Id. at 125.
FN89. Id. The court also noted that the
Sibley standard, requiring the classification substantially further an appropriate
governmental interest, was virtually the same as the federal intermediate scrutiny
standard--namely,--that the classification must serve important governmental
objectives and be substantially related to their achievement. Id. (citing Craig
v. Boren, 429 U.S. 190, 197 (1976) (interpreting gender as a semi-suspect class
under federal intermediate scrutiny)).
FN90. Id. at 126. See supra note 2 for
FN91. Manuel, 677 So.2d at 127.
FN92. Id. at 118.
FN93. Sibley, 477 So.2d at 1108. For
a discussion of Sibley, see supra notes 35-45 and accompanying text.
FN94. Manuel, 677 So.2d at 125.
FN95. LAGC, 669 So.2d at 1198. For a
discussion of LAGC, see supra notes 63-70 and accompanying text.
FN96. Manuel, 667 So.2d at 125.
FN97. Pace, 648 So.2d at 1306. "[W]e
consider the high court's cases as setting the minimum but not the determinative
standards for our equal protection review...." Id. (emphasis added).
FN98. Sibley, 477 So.2d at 1106-07.
FN99. Manuel, 677 So.2d at 125.
FN100. See supra notes 35-45 and accompanying
FN101. LAGC, 669 So.2d at 1197. While
the federal intermediate standard only requires that the classification substantially
achieve important governmental objectives, the express textual requirements
of the Individual Dignity Clause additionally requires no "arbitrary, capricious,
or unreasonable" discrimination. Sibley, 477 So.2d at 1108. Additionally, the
use of the disjunctive "or" is a clear indication of the intent of the drafter
to require a more rigorous standard of scrutiny than had been developed under
the federal standard for the enumerated grounds. Hargrave, supra note 18, at
FN102. Manuel, 667 So.2d at 122.
FN103. In 1986, 18-20 year olds accounted
for 854 total alcohol-related motor accidents, while 21-23 year olds accounted
for 924 in Louisiana. Id. at 128 app. 1. Thus, the result is to displace drivers
with few years driving experience into the category with the highest yearly
recorded incidences of alcohol-related driving accidents.
FN104. LA. CONST. pmbl.