How Grammar Will Have a Multi-Billion Dollar Impact on Wine Sales
Over the past two months, I’ve seen at least four examples of people arguing that banning out-of-state wine retailers from shipping into a state advances a state’s goal of protecting the health and safety of its citizens. The bans on retailer wine shipping do this, it is argued, because it helps keep lower-priced wines out of the states’ markets, which, in turn, lowers consumption of alcohol.
This argument leads us to a very important question: What is the difference between “pretext” and “pretense”? The difference is subtle.
To understand the difference, let’s first look at the claim about retailer wine shipping. We know that banning retailer shipping does not serve to keep lower-priced wine out of the state banning the shipping. In fact, we know that wines shipped into states from out-of-state retailers are almost always priced higher than the average price of wine sold in the state to which the wine is being shipped. Second, we know the bans were not put in place to keep lower-priced wines out of the states. Equally important, the people making these claims (judges, a state’s attorney general defending their bans against lawsuits, wholesalers submitting amicus briefs in cases and expert witnesses engaged to offer testimony in wine shipping cases) know these things too.
Still, this claim is being made in order to attempt to demonstrate that the laws banning wine retailer shipping meet the Supreme Court’s criteria that a discriminatory law must first advance a legitimate state interest in order for it to have a chance to survive a legal challenge on the grounds that it violates the dormant commerce clause of the U.S. Constitution
Now, let’s look at the definition of the words “pretext” and “pretense”.
Pretext: A false, contrived, or assumed purpose or reason; The reporter called the company on the pretext of trying to resolve a consumer complaint.
Pretense: A false claim or a show of insincere behavior.; The drug should not be legalized under any pretense.
Both words are defined as a form of subterfuge. However, “pretext” is subterfuge with a reason behind it. To understand the difference let’s see how the two words can be properly used in the content of the retailer wine shipping cases.
The claim that banning wine retailer shipping prevents lower-priced wines from entering the state was a pretense. The expert witness’s claim that the law banning wine retailer shipments prevented lower-priced wines from entering the state was a pretext to draw attention away from the law’s protectionist goals.
There are currently eight lawsuits winding their way through eight states challenging the constitutionality of discriminatory bans on wine retailer shipping into those states. In order for retailers and consumers to win these cases, they will have to convince judges that this claim (as well as others) is a mere pretense. If the judges conclude the claim is a pretense, then they can’t help but also conclude that the claim is a pretext for something else.
On occasion, a judge will see a claim like this and react as most non-judges do and simply call out the claim as a pretense. The rare judge, fed up with such subterfuge, will go further and note the claim as a pretext for something more nefarious.
The more likely path for a jurist is to simply point out that there is no evidence that the bans prevent lower-priced alcohol from entering the state without noting the obvious subterfuge. Even more likely is the jurist that points out that even if the bans on retailer shipping could serve the purpose of keeping lower-priced wines out of a state, there are other non-discriminatory alternatives to achieving that goal, and many, many more non-discriminatory alternatives for achieving the goal of reducing consumption.
Everyone knows that discriminatory bans on retailer shipping are pretexts for discrimination—even the people making the arguments that they are not. The problem is that judges often take a very deferential position toward state liquor laws. The hope is that in more than one of the eight retailer wine shipping cases winding their way through the courts, the judge will see the pretense.