Futures At Stake: Youth, Gambling, And Society

7 Underage Gambling and the Law

Chapter Seven Underage Gambling and the Law® I. Nelson Rose Finally 21, and Legally Able To Do Everything I’ve Been Doing Since I Was 15 Bumper Sticker Introduction: Age Limits for Gambling How old should a child be before he or she is allowed to gamble? This question is not merely rhetorical. Every government has both the power and the obligation to set the minimum age to gamble once it has legalized that activity. Not establishing an age limit is itself a decision, a legal declaration that anyone, even a small child, can legally wager. The regulation and control of gambling comes under a government’s police power, the power and obligation of a government to protect the health, safety, and welfare of its citizens. In the United States, as in most parts of the world, the police power has almost always been reserved to local governments, primarily the states, but also to cities, counties, and Indian tribes. Federal governments, on the other hand, do not normally have police power over local issues, such as gambling. The powers of a federal government are usually limited to those explicitly listed in a constitution. Congress and other branches of the federal government of the United States, for example, probably do not have the power to set a minimum age for gambling, unless authority can be found in the U.S. Constitution, such as Congress’s power over interstate commerce and Indian tribes. The police power of a state is virtually unlimited—even constitutional rights are put aside. Historically, situations calling for police power actions often have been emergencies, like fires and plagues, when there was no time for considerations such as the due process right to a trial. The Nevada Supreme Court has gone so far as to declare that when it comes to legal gambling, there are no federal civil rights. We view gaming as a matter reserved to the states within the meaning of the Tenth Amendment to the United States Constitution. Within this context we find no room for federally protected constitutional rights. This distinctively state problem is to be governed, controlled and regulated by the state legislature and, to the extent the legislature decrees, by the Nevada Constitution. It is apparent that if we were to recognize federal protections of this wholly privileged-state enterprise, necessary state control would be substantially diminished and federal intrusion invited.1 Taking the Nevada Supreme Court at its word: To control gaming a state may discriminate on the basis of race; federal constitutional prohibitions on discrimination would not apply. Even state constitutional rights do not apply, unless the state legislature gives its blessing. If a state can discriminate on the basis of race, it certainly can draw reasonable categories on the basis of age. Other courts have said the Rosenthal opinion goes too far.2 But the Nevada Supreme Court’s basic approach still holds true. In cases involving legal gaming, the burden is on the individual to prove that his or her rights outweigh the important government policies behind restrictions and prohibitions. The most striking example of how a state’s police power trumps constitutional rights was decided in 2001, when the Louisiana Supreme Court ruled that some adults could be barred from gambling, purely on the basis of their age. In 1998 the Louisiana State Legislature raised the minimum age to gamble on both the state lottery and privately owned video poker machines.3 The state is saturated with these privately owned gaming devices, since they may be put into every truck stop, racetrack, and any other business holding an easily obtained liquor license . Other forms of gaming, including slot machines and identical video poker machines at the state’s many casinos, on riverboats, Indian land, and in the heart of New Orleans, had always been limited to players over 21. A 19-year-old resident, William B. Norton, and David Melius, the owner of Bruno’s Bar in New Orleans, filed suit in January 1999, claiming the new law violated the state constitutional provision against age discrimination.4 The argument had some merit, because 18-year-olds are legally adults in Louisiana , and the state has the strongest provision found in any state constitution against age discrimination. But on January 29, 2001, a majority of the Supreme Court of Louisiana held it was not unconstitutional to prohibit 18-, 19-, and 20-year-old adults from participating in some forms of legal gambling.5 Although the justices may have...