Tuesday, June 27, 2006

Seidenberg v. McSorleys' Old Ale House, Inc.

317 F. Supp. 593 (S.D.N.Y., 1970) (redacted)

Mansfield, District Judge.

Two determined ladies, both board members of the National Organization for Women ("NOW"), have brought this suit pursuant to 42 U.S.C. § 1983 challenging defendant's 115-year practice of catering to men only. They claim that defendant's refusal to serve women at its bar constitutes a denial of rights secured by the Equal Protection Clause of the Fourteenth Amendment. Both parties have moved for summary judgment. For reasons stated in detail below, plaintiffs' motion is granted and defendant's denied.

The essential facts are not in dispute. Defendant McSorleys' Old Ale House, Inc. is a New York corporation operating a bar located at 15 East 7th Street in New York City. While food may be purchased on the premises, the complaint specified, and it is conceded, that McSorleys' is "primarily a bar which serves alcoholic and non-alcoholic beverages." On January 9, 1969, plaintiffs, unescorted by any male companions, entered McSorleys' and seated themselves at the bar. Their request for service was refused by the bartender, who informed them that it was McSorleys' policy, and had been for 114 years, to refuse to serve women under any conditions. Their repeated requests for service were met with similar refusals. Thereupon they were escorted by the bartender to the door and voluntarily departed, wisely choosing to stage this battle of the sexes in the courthouse rather than resort to militant tactics. Their action accords with the principle that an ale house, with its "nut-brown drafts," should be treated as a peaceful center and source of happiness, once described by Johnson as "the throne of human felicity."

State Action

Beginning with Mr. Justice Bradley's opinion for the Court in the Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883), the principle has become firmly embedded in our constitutional law that the Equal Protection Clause of the Fourteenth Amendment reaches "only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). No simple or precise test for distinguishing between state action and private action has, however, yet been devised, in spite of "eight decades of metaphysical writhing around the 'state action' doctrine" by both courts and commentators. Black, Foreword, The Supreme Court 1966 Term, 81 Harv. L. Rev. 69, 89 (1967). Justice Bradley stated only that the requirement was for "acts done under State authority," a standard met by "State action of every kind." 109 U.S. 3, at 13, 11, 3 S. Ct. 18, at 22, 21, 27 L. Ed. 835.

Turning to the case before us, we are asked to find state action in the licensing of McSorleys' Old Ale House under the New York State Alcoholic Beverage Control Law. It is in this context that the State of New York's relationship to McSorleys' as a liquor licensee must be examined.

Defendant McSorleys' is the holder of a retail beer license for on-premises consumption issued under § 55 of the Law. As such it is subject to a wide variety of provisions affecting the operation of its business. At the most elementary level, the personal qualifications of liquor licensees are subject to SLA review. The issuance of a license is a privilege afforded only to those of "high standing and character," Belden v. State Liquor Authority, 294 N.Y.S. 2d at 851; Rios v. State Liquor Authority, 302 N.Y.S. 2d at 81, and since license renewals are judged by the same standards applied to applications for new licenses, Wager v. State Liquor Authority, 4 N.Y. 2d at 468, 176 N.Y.S. 2d at 312, 151 N.E. 2d at 870; Farina v. State Liquor Authority, 20 N.Y. 2d 484, 491, 285 N.Y.S. 2d 44, 49, 231 N.E. 2d 748 (1967), a licensee may be deprived of the right to operate his business if the SLA determines that he has demonstrated sufficiently undesirable propensities.

The effect of this pervasive regulatory scheme goes beyond the immediate and extensive control over the operation of the businesses of liquor licensees. In addition, the general restrictions with which the retail sale of alcohol is hedged about, and in particular the restrictions imposed upon applications for new licenses, operate to limit competition to a degree sufficient to render the issuance of a license a commercially valuable privilege granted by the state to the licensee.

Defendant's policy of refusing service to women hardly represents an exercise of individual choice in the use of private property. McSorleys' is open to the public. Any one of the male sex who is over 18 and neither drunk nor disorderly may enter and purchase a drink. The success of the business depends, in fact, upon large numbers of individuals doing precisely that, and a continuing invitation is extended to as many males as can, consistent with fire regulations, be served on the premises. In this significant respect defendant differs from a private men's club, which does not purport, and is not required, to serve the public.

When a state licenses such an enterprise, in an area peculiarly subject to state regulation, pursuant to a statute imposing pervasive controls upon the conduct of the business, and under circumstances in which state licensing practices endow the license with a certain franchise value as well, the state's involvement in the operation of defendant's business, and hence by implication in the exclusionary practice under attack, rises to the level of significance within the meaning of Burton, and requires McSorleys' to comply with the proscriptions of the Fourteenth Amendment "as certainly as though they were binding covenants written into the [license] itself." 365 U.S. at 726, 81 S. Ct. at 862.


We turn to the question of whether defendant's practice of refusing service to women denies plaintiffs the equal protection of the laws. The answer turns on whether such discrimination is without foundation in reason. It is only irrational or arbitrary distinctions or classifications that are forbidden by the Fourteenth Amendment.

Although the difference between the sexes has been the source of more poetry and prose than almost any other phenomenon of life, discrimination based on sex will be tolerated under the Equal Protection Clause only if it bears a rational relation to a permissible purpose of the classification. For instance, in Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908), the Supreme Court took account of differences in physical structure, strength and endurance of women in upholding a state work-hour limitation for women only. In Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961), home and family responsibilities were held to justify a jury duty exemption for women. Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert. denied sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S. Ct. 456, 21 L. Ed. 2d 445 (1968), upheld Social Security Act provisions favoring women in computation of benefits as reasonably related to the legislative objective of redressing the imbalance in economic opportunity and achievement between men and women. Conversely sex-based discriminations have been nullified when no persuasive difference between women and men could be offered to justify the difference in treatment. See, e.g., United States ex rel. Robinson v. York, 281 F. Supp. 8 (D. Conn. 1968), invalidating a statute providing that women, but not men, could be committed to the state farm for indefinite terms exceeding the statutory maxima provided by the substantive statutes under which they were convicted; White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966), declaring unconstitutional a statute excluding women from jury service; and Karczewski v. Baltimore & O.R.R., 274 F. Supp. 169 (N.D. Ill. 1967), overturning the Indiana practice of denying women the right to sue for loss of consortium.

In the case before us no difference between men and women, as potential customers of the defendant, has been offered as a rational basis for serving the one and not the other. It may be argued that the occasional preference of men for a haven to which they may retreat from the watchful eye of wives or womanhood in general to have a drink or pass a few hours in their own company, is justification enough; that the simple fact that women are not men justifies defendant's practice. The answer is that McSorleys' is a public place, not a private club, and that the preferences of certain of its patrons are no justification under the Equal Protection Clause. Such preferences, no matter how widely shared by defendant's male clientele, bear no rational relation to the suitability of women as customers of McSorleys'.

Nor do we find any merit in the argument that the presence of women in bars gives rise to "moral and social problems" against which McSorleys' can reasonably protect itself by excluding women from the premises. Social mores have not stood still since that argument was used in 1948 to convince a 6-3 majority of the Supreme Court that women might rationally be prohibited from working as bartenders unless they were wives or daughters of male owners of the premises. Goesaert v. Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948). Quite apart from the differences between tending a bar and being served at one, we take judicial notice that the vast majority of bars and taverns do cater to both sexes. Without suggesting that chivalry is dead, we no longer hold to Shakespeare's immortal phrase "Frailty, thy name is woman." Outdated images of bars as dens of coarseness and iniquity and of women as peculiarly delicate and impressionable creatures in need of protection from the rough and tumble of unvarnished humanity will no longer justify sexual separatism. At least to this extent woman's "emancipation" is recognized.

Finally, we note defendant's argument that it is unreasonable to impose upon it by judicial mandate the modifications in its sanitary facilities that would be required if it is directed to cater to women as well as men. As defendant's brief puts it, "Such collateral rules and regulations as would be necessary to make the overall mandate viable and workable, are most feasibly arranged by the enactment of laws by the legislature." Precisely such "collateral rules and regulations" have already been spelled out in the municipal codes dealing with health and sanitation, and are observed as a matter of course by the "vast majority of bars and taverns" mentioned above in which customers of both sexes are served. Defendant should have no difficulty in ascertaining exactly what the law requires of it in this area.

Plaintiffs' motion for summary judgment is granted.

It is so ordered.


At 8:41 PM, Anonymous Anonymous said...

what was the exact date that women were first served?

At 7:25 PM, Blogger Evan said...

I realize this was posted three years ago, but perhaps the blog owner still checks the comments: Given this ruling, in particular the part of about there being "no difference between men and women, as potential customers", what is the legal rational for hosting "ladies night" at bars, where women are given free entry and/or discounts on purchases compared to their male counterparts?


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