Twenty-First Amendment, Section 1:
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Notwithstanding the 1936 assertion that
[a] classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth, 1 the Court has now in a series of cases acknowledged that § 2 of the Twenty-first Amendment did not repeal provisions of the Constitution adopted before ratification of the Twenty-first, save for the severe cabining of Commerce Clause application to the liquor traffic, but it has formulated no consistent rationale for a determination of the effect of the later provision upon earlier ones. In Craig v. Boren, 2 the Court invalidated a state law that prescribed different minimum drinking ages for men and women as violating the Equal Protection Clause. To the state’s Twenty-first Amendment argument, the Court replied that the Amendment
primarily created an exception to the normal operation of the Commerce Clause and that its
relevance . . . to other constitutional provisions is doubtful.
‘Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.’ 3 The holding on this point is
that the operation of the Twenty-first Amendment does not alter the application of the equal protection standards that would otherwise govern this case. 4 Other decisions reach the same result but without discussing the application of the Amendment. 5 Similarly, a state
may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment. 6
The Court departed from this line of reasoning in California v. LaRue, 7 in which it sustained the facial constitutionality of regulations barring a lengthy list of actual or simulated sexual activities and motion picture portrayals of these activities in establishments licensed to sell liquor by the drink. In an action attacking the validity of the regulations as applied to ban nude dancing in bars, the Court considered at some length the material adduced at the public hearings which resulted in the rules demonstrating the anti-social consequences of the activities in the bars. It conceded that the regulations reached expression that would not be deemed legally obscene under prevailing standards and reached expressive conduct that would not be prohibitable under prevailing standards, 8 but the Court thought that the constitutional protection of conduct that partakes
more of gross sexuality than of communication was outweighed by the state’s interest in maintaining order and decency. Moreover, the Court continued, the second section of the Twenty-first Amendment gave an
added presumption in favor of the validity of the regulations as applied to prohibit questioned activities in places serving liquor by the drink. 9
A much broader ruling resulted when the Court considered the constitutionality of a state regulation banning topless dancing in bars.
Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State’s power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs. 10 This recurrence to the greater-includes-the-lesser-power argument, relatively rare in recent years, 11 would if it were broadly applied give the states in the area of regulation of alcoholic beverages a review-free discretion of unknown scope.
In 44 Liquormart, Inc. v. Rhode Island, 12 the Court disavowed LaRue and Bellanca, and reaffirmed that,
although the Twenty-first Amendment limits the effect of the dormant Commerce Clause on a state’s regulatory power over the delivery or use of intoxicating beverages within its borders, ‘the Amendment does not license the States to ignore their obligations under other provisions of the Constitution,’ 13 and therefore does not afford a basis for state legislation infringing freedom of expression protected by the First Amendment. There is no reason, the Court asserted, for distinguishing between freedom of expression and the other constitutional guarantees (e.g., those protected by the Establishment and Equal Protection Clauses) held to be insulated from state impairment pursuant to powers conferred by the Twenty-first Amendment. The Court hastened to add by way of dictum that states retain adequate police powers to regulate
grossly sexual exhibitions in premises licensed to serve alcoholic beverages.
Entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations. 14