The Equal Protection Clause of the U.S. Constitution allows the law to discriminate if there is a rational basis for the discrimination.
A question facing this General Assembly is whether keeping wine off grocery shelves is a rational approach to protecting Kentuckians from the very real dangers of underage drinking.
A bipartisan group in the House is offering a bill aimed at shielding youngsters from exposure to wine and liquor on grocery shelves. House Bill 310 also attempts to put state law on sound constitutional footing in response to last year's ruling striking down a discriminatory alcohol law that favored pharmacies.
One obvious problem with HB 310 is that it preserves the Prohibition-rooted advantage that established Kentucky pharmacies enjoy over other retailers that are prohibited from selling wine and liquor.
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U.S. District Judge John G. Heyburn II ruled that the law, which dates to when a prescription was required to buy booze, violates the Equal Protection Clause by discriminating against groceries, convenience stores, gas stations and other retailers by refusing them licenses to sell liquor and wine.
Even though Prohibition is long gone, pharmacies are allowed to sell liquor and wine. (Beer is allowed to be sold pretty much everywhere — providing, of course, the locale is wet or moist. )
HB 310 would level the playing field for newcomers by requiring any grocery, new pharmacy or other retailer to build a separate entrance for wine and liquor sales.
Anyone entering would have to be 21, unless accompanied by a parent or guardian, and no one younger than 21 could work in the area.
Under HB 310, existing pharmacies would be grandfathered in and still be allowed to sell liquor and wine from their regular shelves and coolers.
So, let's see if we have this right: Kids could still walk past rows of wine or booze displays on their way to buy school supplies or a snack in a pharmacy? And they would still see beer in groceries across from the yogurt and in convenience stores next to the chocolate milk? But they would be protected from the sight of wine or booze at a grocery or convenience store?
Pretty whacky, but no more so than the rest of Kentucky's crazy quilt of alcohol laws.
Rather than enacting what might be another unconstitutional law, the legislature should commission a study of what influences teens to drink and how to combat those influences. Then decisions could have an empirical, rational basis.
The ruling striking down the law left over from Prohibition has been appealed. Taking more time for study also would provide a chance for that appeal to be heard and for lawmakers to receive further guidance on their constitutional bounds.