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Ladies' Night and the 14th Amendment:

Jonathan Adler posts on the extremely weak class action lawsuit claiming that ladies nights at private night clubs violate the 14th Amendment. Hopefully, the district court will dismiss this seriously misguided lawsuit. Attorney Roy Den Hollender's lawsuit is flawed because the Fourteenth Amendment clearly does not ban this kind of "sex discrimination" by private parties and because certification of the class would violate the rules governing class action lawsuits.

First, the constitutional point. I will cover the class action issue in a follow-up post.

The Equal Protection Clause of the Fourteenth Amendment clearly says that a "state" may not "deny to any person within its jurisdiction the equal protection of the laws." The Amendment does not ban discrimination by private parties, only that undertaken by states. Over the years, courts have sometimes ruled that private racial or sex discrimination can be imputed to states in cases where the private actor is actually an agent of the government or otherwise closely entertwined with it. However, Hollender is claiming that night club owners who institute ladies' nights are state actors merely because they are regulated and licensed by the government. This theory was specifically rejected by the Supreme Court in the Civil Rights Cases of 1883, which held that the Fourteenth Amendment did not give Congress the power to regulate common carriers, "places of public accomodation" (e.g. - hotels, restaurants) despite the fact that most such businesses were highly regulated often required to have government licenses. In his dissent, Justice John Marshall Harlan strongly emphasized the regulated and licensed nature of the businesses in question, a consideration that failed to sway the majority. Although criticized by many academics, the Civil Rights Cases remain binding precedent, and were reaffirmed by the Court in United States v. Morrison in 2000.

Moreover, there is good reason to believe that The Civil Rights Cases majority was right to hold that licensing and regulation alone do not equate to state action. Almost all important private activities are licensed or regulated to some extent. If Hollender's argument prevails, all would be subject to the same restrictions on ethnic, religious, and sex discrimination as are imposed by the Fourteenth Amendment on government. For example, marriage requires a state-issued license. On Hollender's theory, therefore, the Constitution would forbid individuals from engaging in racial, ethnic, or religious discrimination in deciding whom to marry, since the Equal Protection Clause surely forbids such discrimination by government. If the state bans Jews from marrying non-Jews, that is a clear violation of the Fourteenth Amendment under modern doctrine. Yet if licensing is enough to turn a private action into state action, then a Jew who marries a fellow Jew after rejecting gentile suitors solely on religious grounds would be a state actor engaging in unconstitutional discrimination.

It may be that some extreme forms of licensing or regulation do involve the state so pervasively in private activity as to convert that activity into state action for Fourteenth Amendment purposes. But that cannot be true for all types of regulation and licensing, as Hollender's theory requires.

Hollender is therefore right to foresee an "uphill" battle for his suit. He is, wrong, however to attribute his likely difficulties to the fact that "he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given 'preferential treatment for past invidious, economic discrimination.'"

In reality, many of the Supreme Court's most important Equal Protection Clause precedents striking down laws that discriminate on the basis of sex involved discrimination against men. These include landmark decisions such as Craig v. Boren, the 1976 case that instituted the current "intermediate scrutiny" standard for government sex discrimination, and Mississippi University for Women v. Hogan (1982), an important case that ruled that an all-female state university was unconstitutional.

In the area of race discrimination, the Supreme Court has indeed given somewhat looser constitutional scrutiny to programs that benefit racial minorities as opposed to whites. That is not, however, true of the Court's constitutional scrutiny of programs that discriminate in favor of women relative to those that benefit men (the Courts statutory consideration of affirmative action for women under Title VII of the Civil Rights Act of 1964 is a different matter).

UPDATE: As commenter and lawprof Eric Muller points out, the Supreme Court's 1972 Moose Lodge (which held that a Moose Lodge was not a state actor merely because it had a state liquor license) decision probably undercuts Hollender's position even more clearly than the Civil Rights Cases do.

paul lukasiak (mail):
What if it was a whites only night?
7.15.2007 12:14am
Eric Muller (www):
Wouldn't Moose Lodge be a more apposite cite than the Civil Rights Cases?
7.15.2007 12:15am
Ilya Somin:
What if it was a whites only night?

A whites only night at a private night club would not violate the Fourteenth Amendment for exactly the same reasons that ladies night doesn't. It would, however, violate Title II of the Civil Rights Act of 1964, which forbids racial discrimination among customers by businesses acting as places of public accomodation.
7.15.2007 12:30am
Libertarian1 (mail):
Is that the reason why the University Club in NYC, a private membership only club, was forced to accept women as full members? Public accomodation?
7.15.2007 1:50am
Ilya Somin:
Is that the reason why the University Club in NYC, a private membership only club, was forced to accept women as full members? Public accomodation?

I don't know, but the reason was probably a statutory one or a state constitutional provision - not the Fourteenth Amendment.
7.15.2007 2:17am
ReaderY:
The Supreme Court has made it very clear that mere regulation doesn't convert private action into state action, so this part of the complaint is extremely likely to fail.
7.15.2007 2:46am
Dave Hardy (mail) (www):
1. So who says getting plastered isn't a privilege and immunity of American citizenship? To quote the eminent jurist John Wayne, "getting drunk or sober, just as he pleases" is among the fundmental rights of free men. OK, so that may disqualify it under The Slaughterhouse Case, there's still due process...

2. Where did Plaintiffs find some guy willing, not only to take on such a theory, but to try it as a class action? It sounds like one of those "don't take it on a contingency" theories to me.
7.15.2007 3:09am
A. Zarkov (mail):
If the 14th Amendment is so powerful then why did we need the 19th Amendment? If "modern doctrine" somehow expands the original meaning of 14th Amendment, then why don't women have to register for the draft? The point being that modern constitutional law is so results driven that you might as well say it forbids "ladies nights" at private clubs. "Modern doctrine" can potentially do anything.
7.15.2007 5:29am
David Chesler (mail) (www):
OK, Hollender's theory is wrong.
And I wouldn't be surprised that employment is covered by a separate statute.
Plenty of states have stronger sex discrimination laws than federal.

Do you think McSorley's would have prevailed today? If not, why not? (That is, what theory that prohibits "No gurlz aloud" allows "Boyz discouraged [by higher price of admission]" Are those two any different? Could McSorley's have gotten away with "Admission (which includes a ticket good for one beer): Men, $5, Women, $500"?)
7.15.2007 11:03am
unhyphenatedconservative (mail):
What about strapping the state action under the same theory that forbade enforcing racially restrictive covenants in neighborhoods? I cannot recall the cite but when we heard the case in school, I never could understand how the theory would not make everything a state action.
7.15.2007 12:30pm
Syd Henderson (mail):
A. Zarkov (mail):
If the 14th Amendment is so powerful then why did we need the 19th Amendment?


For the same reason we needed the 15th and 26th Amendments. To supersede the state's powers to set qualifications for voting.
7.15.2007 1:01pm
Adler is on to something (mail):
Yet if licensing is enough to turn a private action into state action, then a Jew who marries a fellow Jew after rejecting gentile suitors solely on religious grounds would be a state actor engaging in unconstitutional discrimination.

Yes, that is exactly right. That is why the Civil Rights Cases were wrongly decided.
7.15.2007 3:28pm
EIDE_Interface (mail):
It's only a matter of time before it's illegal to discriminate for the basis of a life partner. Of course you'll have to submit a racially/religiously/ethnically/culturally diverse list of to the Department of Marriage, where a bureaucrat will approve one for you.
7.15.2007 5:08pm
Ilya Somin:
What about strapping the state action under the same theory that forbade enforcing racially restrictive covenants in neighborhoods? I cannot recall the cite but when we heard the case in school, I never could understand how the theory would not make everything a state action.

That case, Shelley v. Kramer, has essentially been confined to its facts, because taken seriously, it would all nearly all private actions to be transformed into state action.
7.15.2007 6:41pm
Toby:
What about Businesses that regularly have seminars for "Women in Management". Or "Women in Science". Or "Women in IT". Corporations all across America have oportunities for women to meet talk with upper management, to participate in training, to have all kindsof oportunities that are not available to the men working beside them.

When I was single, I always liked ladies noght, for the reasons cited above. But if turning it over would break the back of all the anti-man practices that are now routine across American business for it.
7.15.2007 10:59pm
Peter B. Nordberg (mail) (www):
Oh, wait. Apparently it really is Hollander, if the National Law Journal has it right. I apologize to Mr. Hollander for calling him Mr. Hollender the last time I apologized to him for calling him Mr. Hollander.
7.15.2007 11:01pm
A. Zarkov (mail):
"That case, Shelley v. Kramer, has essentially been confined to its facts, because taken seriously, it would all nearly all private actions to be transformed into state action."

Could you decode that statement a little but for us? It sounds to me that you are saying the case was wrongly decided, but for political reasons we will let it stand, and agree to ignore it everywhere else.
7.16.2007 1:36am
Ilya Somin supports racially restrictive covenants (mail):
There is actually a rather good argument that it was rightly decided, if you believe in free markets.
7.16.2007 1:52am
Ilya Somin:
Could you decode that statement a little but for us? It sounds to me that you are saying the case was wrongly decided, but for political reasons we will let it stand, and agree to ignore it everywhere else.


I am simply saying that the Court has not extended it into other areas, and has largely confined it to its facts.
7.16.2007 2:24am
Ilya Somin:
Ilya Somin supports racially restrictive covenants

Not true. I disagree with the Court's reasoning in Shelley (which if applied elsewhere collapses the distinction between private and state action). But I think the decision can be defended on the alternative grounds outlined by Carol Rose in this article.
7.16.2007 2:28am
tvk:
I just have one quibble with the post. Hasn't the court held that sex-discriminatory rules that reflect outdated notions of a woman's "proper place" deserves extra scrutiny? Can't this fairly be said to impose a somewhat stricter standard for some sex-discrminatory laws that disproportionately harm women? Granted, it has the effect of imposing stricter scrutiny on some laws that favor women too (e.g. child custody), but I expect that most of the archaic laws condemned under this test favored men.
7.16.2007 5:25am
whit:
"What about Businesses that regularly have seminars for "Women in Management". Or "Women in Science". Or "Women in IT". Corporations all across America have oportunities for women to meet talk with upper management, to participate in training, to have all kindsof oportunities that are not available to the men working beside them. "

i have seen several classes advertised in law enforcement training that are listed as "defensive tactics for women" etc. and this isn't private business, this IS govt (police dept's).

when i inquired, i was told that these classes did not exclude men, that i was free to apply, but that they were designed FOR women. they said women needed special defensive tactics classes because they got "intimidated" in classes where men were in the majority. talk about patronizing!

i was also told "off the record" that as a male, my chances of being accepted to the class were pretty slim. on paper, they had to be for everybody. in reality, they were not.

considering that classes can also lead to promotions, be put on police resumes, etc. this seems even more problematic. there is nothing inherently different in female anatomy that requires a special kind of defensive tactics. yes, women on average are weaker than men, but there are plenty of strong women and plenty of weak men. might as well title the class "defensive tactics for wimps"
7.16.2007 1:30pm