From the Oklahoma Attorney General Opinion 2026-13, issued on September 8:
This office has received your request for an Attorney General Opinion, framed by the following question:
Does the citizenship requirement found in title 37A, section 2-146(A)(1) for applicants pursuing licenses to handle or sell wine and spirits—whether wholesale, retail spirits, retail wine, or retail beer—violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
The citizenship criterion contravenes the Equal Protection Clause and cannot be enforced against noncitizens who are lawfully present in the United States. The statute discriminates against lawfully present aliens on the basis of alienage. 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 demonstrate 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 permits a State to reserve certain positions for citizens does not extend to a private commercial licensee who sells alcohol. That exception allows a State to reserve only those roles that lie at the heart of representative government—positions like police officer, probation officer, or schoolteacher—i.e., offices where the holder would necessarily exercise broad discretionary power over public policies affecting the citizenry. It applies only where the officeholder would be entrusted with powers essential to self-government. The Supreme Court has confined this exception to a relatively limited class of governmental functions and has declined to extend it to occupational licensing; in Bernal v. Fainter (1984), for example, the Court held that a citizenship requirement for notaries public failed strict scrutiny and violated equal protection.
Moreover, the requirement is neither supported by a compelling governmental 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….
