Selling Alcohol Isn't a Political Function

From Okla. A.G. Opinion 2026-13, released Sept. 8:

This office has received your request for an Attorney General Opinion in which you ask the following question:

Does the requirement in title 37A, section 2-146(A)(1) that an applicant for a wine and spirits wholesaler, retail spirits, retail wine, or retail beer license be a citizen of the United States violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution? …

The citizenship requirement violates the Equal Protection Clause and is unenforceable as applied to noncitizens who are lawfully present in the United States…. [The statute] discriminates against lawfully present aliens on the basis of alienage. State classifications that disadvantage lawfully present aliens are inherently suspect and trigger strict judicial scrutiny. Graham v. Richardson (1971). To survive that scrutiny, the State would have to show that the citizenship requirement is narrowly tailored to serve a compelling state interest—an onerous standard. It cannot meet that standard.

The narrow "political-function" exception that sometimes allows a State to reserve a position to citizens does not extend to a private commercial licensee who sells alcohol. {That exception permits a State to reserve only to citizens those positions that "go to the heart of representative government" [such as the positions of police officer, probation officer, or schoolteacher -EV]. It applies only where the officeholder "would necessarily exercise broad discretionary power over the formulation or execution of public policies importantly affecting the citizen population— power of the sort that a self-governing community could properly entrust only to full-fledged members of that community." Bernal v. Fainter (1984). The U.S. Supreme Court has confined the exception to a relatively limited class of governmental functions and has declined to extend it to occupational licensure; in Bernal, for example, the Court held that a citizenship requirement for notaries public failed strict scrutiny and violated equal protection.}

And the requirement is neither supported by a compelling interest nor narrowly drawn. The Act exempts beer distributors from the same citizenship requirement it imposes on other licensees. That exemption undercuts any claim that citizenship is essential to the interests the Act serves. The requirement is also overinclusive, because it disqualifies every lawfully present alien regardless of any individualized concern, and underinclusive, because of that same beer-distributor exception.

The Twenty-first Amendment does not change this analysis; a State's authority to regulate alcohol does not relax the commands of the Equal Protection Clause, whether expressly or by implication. Finally, the companion requirement that an applicant be a qualified elector in this state is unenforceable as applied to lawfully present noncitizens for the same reasons. A qualified elector in Oklahoma must be a United States citizen. The elector requirement thus rests on the same citizenship classification.

This conclusion is confined to lawfully present noncitizens. Nothing in this opinion requires the Alcoholic Beverage Laws Enforcement Commission ("ABLE Commission") to license a person who is unlawfully present, or a lawfully present noncitizen whom federal law does not authorize to engage in the licensed business….