Seidenberg, Faith A.

English

Valparaiso University

Valparaiso University Law Review Volume 5 Number 2 Symposium on Women and the Law pp.318-325 Symposium on Women and the Law The Federal Bar v. The Ale House Bar: Women and Public Accommodations Faith A. Seidenberg Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation Faith A. Seidenberg, The Federal Bar v. The Ale House Bar: Women and Public Accommodations, 5 Val. U. L. Rev. 318 (1971). Available at: https://scholar.valpo.edu/vulr/vol5/iss2/4 This Symposium is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. THE FEDERAL BAR v. THE ALE HOUSE BAR:WOMEN AND PUBLIC ACCOMMODATIONSFAITH A. SEIDENBERG*INTRODUCTIONOn a dark wintry night in January, 1969, two women stood shiver-ing before the double doors of an old ale house whose portals had with-stood for one hundred and fifteen years the entry of female customers.The women were shivering as much from fear as from cold, but, afterstanding uncertainly for a few minutes, they pushed open both sets ofdoors and plunged in.The effect was electrifying. Bells were rung, the all-male clienteleof the bar clapped and stamped, and the waiters whooped it up. Thewomen did not retreat, however, and the noise slowly subsided. Thencame the coup de gras; the women requested service! At first, they werepolitely refused, then more heatedly. The customers as well as theemployees became incensed, but the two invaders stood fast. Finally, ayoung man appeared, surveyed the situation and offered to buy the twowomen a drink. Much to his chagrin, however, he was thereupongrabbed roughly by several of the men and thrown unceremoniouslyonto the curb. The two women withdrew in his wake, upset by the treat-ment that he had received on their behalf. The saga might have endedthere, but, instead, the women shortly thereafter filed an action in federalcourt. So began the battle for the soul of McSorleys' Old Ale House.In spite of its somewhat frivolous beginning, the case itself had avery serious purpose. All over the United States women were, and stillare, excluded from places of public accommodation such as restaurants,hotels, airlines and the like. This article examines the case of Seidenberg.v. McSorleys' Old Ale HouSe, Inc.' which culminates a series of legalactions asserting the right of women to public accommodations.THE CIVIL RIGHTS ACT OF 1964Although the 1964 Civil Rights Act2 forbids discrimination inemployment on account of sex, it has been found not to forbid suchdiscrimination in public accommodations. In DeCrow v. Hotel Syracuse* Member of the New York Bar.1. 317 F. Supp. 593 (S.D.N.Y. 1970).2. Civil Rights Act of 1964 § 201(a), 42 U.S.C. § 2000a(a) (1964), guaranteesto all persons the full and equal employment of public accommodations without regardto race, color, religion or national origin.Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public AccommodatProduced by The Berkeley Electronic Press, 1971PUBLIC ACCOMMODATIONSCorp.,8 the National Organization for Women brought suit in federalcourt in the Northern District of New York against the Hotel Syracusebecause it served unescorted women only when they were seated at atable. Plaintiffs were told that this was to protect the male customersfrom female solicitation. (No mention was made, however, as to malesolicitation.) The judge, in deciding against the plaintiffs held that: 1)there was no state action as they were not arrested' and 2) that althoughthe hotel may have been discriminating, it was allowed to do so becausethe word "sex" did not appear in the public accommodations section ofthe 1964 Civil Rights Act.The conduct of hotels and restaurants is governed by section2 01(a) of said Act (42 U.S.C. § 2000(a)). The full andequal employment of public accommodations without discrim-ination on account of "race, color, religion, or national origin"... including the right to be served at a bar, has been guarante-ed by Congress. No such guarantee has been made on accountof sex. This Court should not gratuitously do what Congresshas not seen fit to do. Mrs. Kennedy's complaint should beaddressed to Congress.It should be pointed out, however, that in Paterson Tavern & Grill v.City of Paterson' a New Jersey court took the opposite position ininterpreting its public accommodation statute:' "While the statutedoes not mention specifically sex, I think it is the public policy of ourstate that such discrimination should not be practiced." 8Having suffered defeat at the hands of the federal district court,the plaintiffs then brought a state cause of action under a New Yorkstatute which, though largely untested, seemed promising. This particularstatute states:A person who either on his own account or as agent or officerof a corporation, carries on business as innkeeper, or ascommon carrier of passenger, and refuses, without just causeor excuse, to receive and entertain any guest, or to receive andcarry any passenger, is guilty of a misdemeanor.93. 288 F. Supp. 530 (N.D.N.Y. 1968).4. See notes 16-22 infra and accompanying text.5. 288 F. Supp. at 532.6. No. 9248-68 PW (N.J. Super., Dec. 17, 1968).7. N.J. STAT. ANN. §§ 10:1-2 to -7 (1960), as amended, N.J. STAT. ANN. §§10:1-3, 10:1-6 (Supp. 1970). The 1970 amendment prohibits sexual discrimination.8. Paterson Tavern & Grill v. City of Paterson, No. 9248-68 PW (N.J. Super.,Dec. 17, 1968).9. N.Y. Cxv. RXGHTS LAw § 40-e (Supp. 1970) (emphasis added).1971]Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4https://scholar.valpo.edu/vulr/vol5/iss2/4320 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5Plaintiffs felt that simply the fact of being a woman did not constitute"just cause" to refuse to serve. The judge thought otherwise:[I]t is eminently clear that on neither occasion did the de-fendant refuse to receive or entertain the plaintiff but simplyconditioned their reception and entertainment of her by requir-ing that she be escorted to the bar or be seated at a table removedtherefrom.'This is in accord with an earlier case which arose in the state of Wash-ington, Randles v. Washington State Liquor Control Board," whereservice was refused to women unless they were seated at a table. As aresult of these and similar decisions, women continued to be excludedfrom restaurants where they had appointments with male colleagues,barred from certain airline flights"2 and refused service "unless accom-panied by a male." Therefore, finding protection under neither federalnor state civil rights law, a different approach had to be attempted. Thisattack was to be under the equal protection clause of the fourteenthamendment.EQUAL PROTECTION. UNDER THE FOURTEENTH AMENDMENTThere are two threads that weave their way through the fabric ofevery public accommodations suit brought under the fourteenth amend-ment. One deals with state action; the other concerns the concept ofclassification of persons.State ActionThe first desideratum is state action. This principle was bestexpressed in Shelley v. Kraemer"3 which held that discrimination byprivate persons is not barred by the fourteenth amendment unless ac-companied by state action. 4 This doctrine was further amplified in Bur-ton v. Wilmington Parking Authority"2 where the plaintiff was deniedservice in a coffee shop solely because of his color. The Court found forthe plaintiff because the coffee shop was part of the State Authority'sPublic Parking Garage. The Court ruled that although the state had notexpressly authorized or commanded the discriminatory conduct, it had10. DeCrow v. Hotel Syracuse Corp., 59 Misc. 2d 383, 386, 298 N.Y.S.2d 859,862-63 (Sup. Ct. 1969).11. 33 Wash. 2d 688, 206 P2d 1209 (1949).12. United Airlines had an "executive flight" which translates to mean "men only."13. 334 U.S. 1 (1948).14. See also Civil Rights Cases, 109 U.S. 3 (1883) ; Williams v. Hot Shoppes,Inc., 293 F.2d 835 (D.C. Cir. 1961); Powell v. Utz, 87 F. Supp. 811 (D. Wash. 1949).15. 365 U.S. 715 (1961).Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public AccommodatProduced by The Berkeley Electronic Press, 1971PUBLIC ACCOMMODATIONSbecome sufficiently involved and that its inaction was enough to establishstate action.In Williams v. Howard Johnson's Restaurant,6 the Fourth Circuitupheld a restaurant's refusal to serve the plaintiff because of his race.The court stated that the state's licensing statute "does not authorizestate officials to control the management of the business or to dictatewhat persons shall be served."' 7 The involvement was not sufficient tojustify a finding of state action and thus there was no violation of thefourteenth amendment.Turning to the case at hand, Seidenberg v. McSorleys' Old AleHouse, Inc.,'8 such involvement was uncovered. Plaintiffs brought anaction to quell the sex discrimination evident in McSorleys' Ale House.McSorleys' moved to dismiss for failure to state a cause of action. In aninitial ruling against the defendant 9 Judge Tenny stated:To adhere to practices supported by ancient chivalristic con-cepts, when there may no longer exist a need or basis therefor,may only serve to isolate women from the realities of everydaylife, and to perpetuate, as a matter of law, economic and sexualexploitation. While members of each sex may at times relishthe opportunity to withdraw to the exclusive company of theirown gender, if it be ultimately found that the State hasbecome significantly involved in a policy which mandates suchseclusion then considerable question is presented as to whether,for the purposes of the Fourteenth Amendment, this discrim-ination is founded upon a basis in reason.2"Plaintiffs then moved for judgment as, oddly enough consideringthe judge's decision, did the defendants. Plaintiffs argued that defendant'sale house could not discriminate because it was licensed by the stateand, that, therefore, this was not a private discrimination but one backedby state action. On May 26, 1970, in a scholarly opinion, Judge Mans-field, District Judge of the Southern District of New York, grantedplaintiffs' motion.2' The court found state action within the licensingprocedure.16. 268 F.2d 845 (4th Cir. 1959).17. Id. at 848.18. 317 F. Supp. 593 (S.D.N.Y. 1970).19. Seidenberg v. McSorleys' Old Ale House, Inc., 308 F. Supp. 1253 (S.D.N.Y.1969).20. Id. at 1260-61.21. Seidenberg v. McSorleys' Old Ale House, Inc., 317 F. Supp. 593 (S.D.N.Y.1970).19711Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4https://scholar.valpo.edu/vulr/vol5/iss2/4322 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5[W]ithout the state license to serve beer, defendant herecould never have discriminated in the sale of beer .... Further-more, the state has continued annually to renew defendant'slicense over the years despite its open discrimination againstwomen, without making any effort in the exercise of the broadauthority granted it, to remedy the discrimination or revokethe license which defendant must have in order to practice it.These circumstances convince us that the state's participationhere is significant, as distinguished from situations where thelicensor-licensee relationship is not accompanied by any exten-sive state regulation and the licensee is not a commercialestablishment or has not offered its facilities or services to thepublic generally."In a similar decision, a three-judge court in Pennsylvania held that thediscriminatory admission policies of a private liquor-serving club violatedthe fourteenth amendment because of the extensive state regulation ofthose holding state licenses to serve liquor. 3We believe the decisive factor is the uniqueness and all-per-vasiveness of the regulation by the Commonwealth of Pennsyl-vania of the dispensing of liquor under licenses granted by thestate.24Sex as a ClassificationThe second desideratum is the validity of sex as a classification.Only arbitrary or unreasonable classifications are forbidden by the four-teenth amendment.2 ' The answer to this query therefore depends onwhether sexual discrimination as is supported by McSorleys' is withoutfoundation in reason. As stated by Judge Mansfield: "[D]iscriminationbased on sex will be tolerated under the Equal Protection Clause only ifit bears a rational relation to a permissable purpose of the classification."26Unfortunately for the plaintiffs, the Supreme Court has consistentlyupheld classification on the basis of sex. 7 Faced with such authority,plaintiffs argued that barring women from public places which the statehas licensed to sell alcoholic beverages is an unreasonable and arbitraryclassification.22. Id. at 598-99.13. Irvis v. Scott, 318 F. Supp. 1246 (M.D. Pa. 1970).24. Id. at 1248.25. See Eastwood, The Double Standard of Justice: Women's Rights Under theConstitution, 5 VAL. U.L. REV. 281 (1971).26. 317 F. Supp. at 605.27. Muller v. Oregon, 208 U.S. 412 (1908). See Eastwood, supra note 25.Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public AccommodatProduced by The Berkeley Electronic Press, 1971PUBLIC ACCOMMODATIONSEskridge v. Division of Alcoholic Beverage Control" was an earlycase where a woman was refused service at a bar. A tavern owner'slicense was suspended for serving women at a U-shaped counter. Thecourt found the counter was, in fact, a bar, and that the tavern ownerhad violated a municipal ordinance by serving alcohol to a woman seatedat the bar. In its opinion, the court stated:Ordinances which forbid the serving of liquor to women exceptwhen seated at tables do not violate any constitutional right ofeither the licensees or the women, and are well within theregulatory power of the State.29The Eskridge decision has been largely overruled by Gallagher v. Cityof Bayonne.30 In upholding the right of a woman to obtain service, thecourt stated that it cannot acceptas a general assumption that mere sexual difference is a viableclassification under equal protection concepts . . [W] e aredealing with the application of laws to humanity generally, andhumanity quite clearly is comprised of both masculine andfeminine elements .... The truly mature male or female . . . iscomposed of a wholesome synthesis of the elements of per-sonality which perhaps we have been too prone to oversimplifyand relegate to categories labeled male or female."There is a line of cases which considers the right of a woman to workin a tavern, but this goes beyond the problem of the right to be servedand is of interest only tangentially. In Goesaert v. Cleary,32 the SupremeCourt upheld the constitutionality of a Michigan statute which prohibitedwomen from working as bar maids unless they were wives or daughtersof tavern owners. However, in Wilson v. Hacker,"3 a woman's right tojoin a union as a bartender was upheld, the court stating that[u]nder the present New York statutes, the special penaltiesor procedures cannot be invoked against discrimination on theground of sex, but it does not follow that a court may notcondemn such discrimination as a violation of fundamental28. 30 N.J. Super. 472, 105 A.2d 6 (1954).29. Id. at 476-77, 105 A.2d at 9.30. 102 N.J. Super. 77, 245 A.2d 373 (1968), aff'd, 106 N.J. Super. 901, 256 A2d61, aff'd, 55 N.J. 159, 259 A.2d 912 (1969).31. Id. at 82,245 A2d at 376.32. 335 U.S. 464 (1968).33. 200 Misc. 124, 101 N.Y.S.2d 461 (Sup. Ct. 1950).19711Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4https://scholar.valpo.edu/vulr/vol5/iss2/4324 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5principles and judge the legitimacy of union activities in thelight of such principle. 4Since Judge Mansfield in McSorleys' treated the issue of sexualclassification as discrimination without foundation in reason, 5 the courtlimited the impact of the decision. Thus, McSorleys' is directly applicableonly to situations where women are denied the right to enter a publicaccommodation under sufficient control of the state. The case would,however, appear to have persuasive value in any factual situation wherethe state attempts to regulate the relationship between women and alcohol.Judge Mansfield found no rational basis for excluding women fromMcSorleys' ;36 he concluded that the exclusion violated the equal pro-tection clause of the fourteenth amendment.Without suggesting that chivalry is dead, we no longer holdto Shakespeare's immortal phrase "Frailty, thy name iswoman." Outdated images of bars as dens of coarseness andiniquity and of women as peculiarly delicate and impression-able creatures in need of protection from the rough and tumbleof unvarnished humanity will no longer justify sexual separat-ism. At least to this extent Woman's "emancipation" is re-cognized."CONCLUSIONPhilosophically, the courts have changed slowly in the approximatelyhundred years since Bradwell v. State.8" There, Justice Bradley, in aconcurring opinion, stated his belief thatIt] he natural and proper timidity and delicacy which belongsto the female sex evidently unfits it for many of the occupationsof civil life .... The paramount destiny and mission of womenare to fulfill the noble and benign offices of wife and mother.This is the law of the Creator.The law of the Creator may have been changed by secular law, but theviews of most people concerning women have not. The New York Times,in reporting the McSorleys' story, said, "There was, perhaps a traceof34. Id. at 135, 101 N.Y.S.2d at 473. See also McCrimmon v. Daley, 418 F.2d 366(7th Cir. 1969).35. 317 F. Supp. at 603.36. Id. at 605-06.37. Id. at 606.38. 83 U.S. (16 Wall.) 130 (1872).39. Id. at 141-42.Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public AccommodatProduced by The Berkeley Electronic Press, 19711971] PUBLIC ACCOMMODATIONS 325wistfulness in the ruling [in that] the sawdust-floored haven was justanother 'public place' that must admit any customer who comes in, evena woman."'040. N.Y. Times, June 26, 1970, at 1, col. 7 (emphasis added).Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4https://scholar.valpo.edu/vulr/vol5/iss2/4

The Federal Bar v. The Ale House Bar: Women and Public Accommodations

ValpoScholar

Valparaiso University Law Review 
Volume 5 
Number 2 Symposium on Women and the Law pp.318-325 
Symposium on Women and the Law 
The Federal Bar v. The Ale House Bar: Women and Public 
Accommodations 
Faith A. Seidenberg 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
Faith A. Seidenberg, The Federal Bar v. The Ale House Bar: Women and Public Accommodations, 5 Val. U. 
L. Rev. 318 (1971). 
Available at: https://scholar.valpo.edu/vulr/vol5/iss2/4 
This Symposium is brought to you for free and open 
access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
THE FEDERAL BAR v. THE ALE HOUSE BAR:
WOMEN AND PUBLIC ACCOMMODATIONS
FAITH A. SEIDENBERG*
INTRODUCTION
On a dark wintry night in January, 1969, two women stood shiver-
ing before the double doors of an old ale house whose portals had with-
stood for one hundred and fifteen years the entry of female customers.
The women were shivering as much from fear as from cold, but, after
standing uncertainly for a few minutes, they pushed open both sets of
doors and plunged in.
The effect was electrifying. Bells were rung, the all-male clientele
of the bar clapped and stamped, and the waiters whooped it up. The
women did not retreat, however, and the noise slowly subsided. Then
came the coup de gras; the women requested service! At first, they were
politely refused, then more heatedly. The customers as well as the
employees became incensed, but the two invaders stood fast. Finally, a
young man appeared, surveyed the situation and offered to buy the two
women a drink. Much to his chagrin, however, he was thereupon
grabbed roughly by several of the men and thrown unceremoniously
onto the curb. The two women withdrew in his wake, upset by the treat-
ment that he had received on their behalf. The saga might have ended
there, but, instead, the women shortly thereafter filed an action in federal
court. So began the battle for the soul of McSorleys' Old Ale House.
In spite of its somewhat frivolous beginning, the case itself had a
very serious purpose. All over the United States women were, and still
are, excluded from places of public accommodation such as restaurants,
hotels, airlines and the like. This article examines the case of Seidenberg.
v. McSorleys' Old Ale HouSe, Inc.' which culminates a series of legal
actions asserting the right of women to public accommodations.
THE CIVIL RIGHTS ACT OF 1964
Although the 1964 Civil Rights Act2 forbids discrimination in
employment on account of sex, it has been found not to forbid such
discrimination in public accommodations. In DeCrow v. Hotel Syracuse
* Member of the New York Bar.
1. 317 F. Supp. 593 (S.D.N.Y. 1970).
2. Civil Rights Act of 1964 § 201(a), 42 U.S.C. § 2000a(a) (1964), guarantees
to all persons the full and equal employment of public accommodations without regard
to race, color, religion or national origin.
Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public Accommodat
Produced by The Berkeley Electronic Press, 1971
PUBLIC ACCOMMODATIONS
Corp.,8 the National Organization for Women brought suit in federal
court in the Northern District of New York against the Hotel Syracuse
because it served unescorted women only when they were seated at a
table. Plaintiffs were told that this was to protect the male customers
from female solicitation. (No mention was made, however, as to male
solicitation.) The judge, in deciding against the plaintiffs held that: 1)
there was no state action as they were not arrested' and 2) that although
the hotel may have been discriminating, it was allowed to do so because
the word "sex" did not appear in the public accommodations section of
the 1964 Civil Rights Act.
The conduct of hotels and restaurants is governed by section
2 01(a) of said Act (42 U.S.C. § 2000(a)). The full and
equal employment of public accommodations without discrim-
ination on account of "race, color, religion, or national origin"
... including the right to be served at a bar, has been guarante-
ed by Congress. No such guarantee has been made on account
of sex. This Court should not gratuitously do what Congress
has not seen fit to do. Mrs. Kennedy's complaint should be
addressed to Congress.
It should be pointed out, however, that in Paterson Tavern & Grill v.
City of Paterson' a New Jersey court took the opposite position in
interpreting its public accommodation statute:' "While the statute
does not mention specifically sex, I think it is the public policy of our
state that such discrimination should not be practiced." 8
Having suffered defeat at the hands of the federal district court,
the plaintiffs then brought a state cause of action under a New York
statute which, though largely untested, seemed promising. This particular
statute states:
A person who either on his own account or as agent or officer
of a corporation, carries on business as innkeeper, or as
common carrier of passenger, and refuses, without just cause
or excuse, to receive and entertain any guest, or to receive and
carry any passenger, is guilty of a misdemeanor.9
3. 288 F. Supp. 530 (N.D.N.Y. 1968).
4. See notes 16-22 infra and accompanying text.
5. 288 F. Supp. at 532.
6. No. 9248-68 PW (N.J. Super., Dec. 17, 1968).
7. N.J. STAT. ANN. §§ 10:1-2 to -7 (1960), as amended, N.J. STAT. ANN. §§
10:1-3, 10:1-6 (Supp. 1970). The 1970 amendment prohibits sexual discrimination.
8. Paterson Tavern & Grill v. City of Paterson, No. 9248-68 PW (N.J. Super.,
Dec. 17, 1968).
9. N.Y. Cxv. RXGHTS LAw § 40-e (Supp. 1970) (emphasis added).
1971]
Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4
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320 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5
Plaintiffs felt that simply the fact of being a woman did not constitute
"just cause" to refuse to serve. The judge thought otherwise:
[I]t is eminently clear that on neither occasion did the de-
fendant refuse to receive or entertain the plaintiff but simply
conditioned their reception and entertainment of her by requir-
ing that she be escorted to the bar or be seated at a table removed
therefrom.'
This is in accord with an earlier case which arose in the state of Wash-
ington, Randles v. Washington State Liquor Control Board," where
service was refused to women unless they were seated at a table. As a
result of these and similar decisions, women continued to be excluded
from restaurants where they had appointments with male colleagues,
barred from certain airline flights"2 and refused service "unless accom-
panied by a male." Therefore, finding protection under neither federal
nor state civil rights law, a different approach had to be attempted. This
attack was to be under the equal protection clause of the fourteenth
amendment.
EQUAL PROTECTION. UNDER THE FOURTEENTH AMENDMENT
There are two threads that weave their way through the fabric of
every public accommodations suit brought under the fourteenth amend-
ment. One deals with state action; the other concerns the concept of
classification of persons.
State Action
The first desideratum is state action. This principle was best
expressed in Shelley v. Kraemer"3 which held that discrimination by
private persons is not barred by the fourteenth amendment unless ac-
companied by state action. 4 This doctrine was further amplified in Bur-
ton v. Wilmington Parking Authority"2 where the plaintiff was denied
service in a coffee shop solely because of his color. The Court found for
the plaintiff because the coffee shop was part of the State Authority's
Public Parking Garage. The Court ruled that although the state had not
expressly authorized or commanded the discriminatory conduct, it had
10. DeCrow v. Hotel Syracuse Corp., 59 Misc. 2d 383, 386, 298 N.Y.S.2d 859,
862-63 (Sup. Ct. 1969).
11. 33 Wash. 2d 688, 206 P2d 1209 (1949).
12. United Airlines had an "executive flight" which translates to mean "men only."
13. 334 U.S. 1 (1948).
14. See also Civil Rights Cases, 109 U.S. 3 (1883) ; Williams v. Hot Shoppes,
Inc., 293 F.2d 835 (D.C. Cir. 1961); Powell v. Utz, 87 F. Supp. 811 (D. Wash. 1949).
15. 365 U.S. 715 (1961).
Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public Accommodat
Produced by The Berkeley Electronic Press, 1971
PUBLIC ACCOMMODATIONS
become sufficiently involved and that its inaction was enough to establish
state action.
In Williams v. Howard Johnson's Restaurant,6 the Fourth Circuit
upheld a restaurant's refusal to serve the plaintiff because of his race.
The court stated that the state's licensing statute "does not authorize
state officials to control the management of the business or to dictate
what persons shall be served."' 7 The involvement was not sufficient to
justify a finding of state action and thus there was no violation of the
fourteenth amendment.
Turning to the case at hand, Seidenberg v. McSorleys' Old Ale
House, Inc.,'8 such involvement was uncovered. Plaintiffs brought an
action to quell the sex discrimination evident in McSorleys' Ale House.
McSorleys' moved to dismiss for failure to state a cause of action. In an
initial ruling against the defendant 9 Judge Tenny stated:
To adhere to practices supported by ancient chivalristic con-
cepts, when there may no longer exist a need or basis therefor,
may only serve to isolate women from the realities of everyday
life, and to perpetuate, as a matter of law, economic and sexual
exploitation. While members of each sex may at times relish
the opportunity to withdraw to the exclusive company of their
own gender, if it be ultimately found that the State has
become significantly involved in a policy which mandates such
seclusion then considerable question is presented as to whether,
for the purposes of the Fourteenth Amendment, this discrim-
ination is founded upon a basis in reason.2"
Plaintiffs then moved for judgment as, oddly enough considering
the judge's decision, did the defendants. Plaintiffs argued that defendant's
ale house could not discriminate because it was licensed by the state
and, that, therefore, this was not a private discrimination but one backed
by state action. On May 26, 1970, in a scholarly opinion, Judge Mans-
field, District Judge of the Southern District of New York, granted
plaintiffs' motion.2' The court found state action within the licensing
procedure.
16. 268 F.2d 845 (4th Cir. 1959).
17. Id. at 848.
18. 317 F. Supp. 593 (S.D.N.Y. 1970).
19. Seidenberg v. McSorleys' Old Ale House, Inc., 308 F. Supp. 1253 (S.D.N.Y.
1969).
20. Id. at 1260-61.
21. Seidenberg v. McSorleys' Old Ale House, Inc., 317 F. Supp. 593 (S.D.N.Y.
1970).
19711
Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4
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322 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5
[W]ithout the state license to serve beer, defendant here
could never have discriminated in the sale of beer .... Further-
more, the state has continued annually to renew defendant's
license over the years despite its open discrimination against
women, without making any effort in the exercise of the broad
authority granted it, to remedy the discrimination or revoke
the license which defendant must have in order to practice it.
These circumstances convince us that the state's participation
here is significant, as distinguished from situations where the
licensor-licensee relationship is not accompanied by any exten-
sive state regulation and the licensee is not a commercial
establishment or has not offered its facilities or services to the
public generally."
In a similar decision, a three-judge court in Pennsylvania held that the
discriminatory admission policies of a private liquor-serving club violated
the fourteenth amendment because of the extensive state regulation of
those holding state licenses to serve liquor. 3
We believe the decisive factor is the uniqueness and all-per-
vasiveness of the regulation by the Commonwealth of Pennsyl-
vania of the dispensing of liquor under licenses granted by the
state.2
4
Sex as a Classification
The second desideratum is the validity of sex as a classification.
Only arbitrary or unreasonable classifications are forbidden by the four-
teenth amendment.2 ' The answer to this query therefore depends on
whether sexual discrimination as is supported by McSorleys' is without
foundation in reason. As stated by Judge Mansfield: "[D]iscrimination
based on sex will be tolerated under the Equal Protection Clause only if
it bears a rational relation to a permissable purpose of the classification."26
Unfortunately for the plaintiffs, the Supreme Court has consistently
upheld classification on the basis of sex. 7 Faced with such authority,
plaintiffs argued that barring women from public places which the state
has licensed to sell alcoholic beverages is an unreasonable and arbitrary
classification.
22. Id. at 598-99.
13. Irvis v. Scott, 318 F. Supp. 1246 (M.D. Pa. 1970).
24. Id. at 1248.
25. See Eastwood, The Double Standard of Justice: Women's Rights Under the
Constitution, 5 VAL. U.L. REV. 281 (1971).
26. 317 F. Supp. at 605.
27. Muller v. Oregon, 208 U.S. 412 (1908). See Eastwood, supra note 25.
Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public Accommodat
Produced by The Berkeley Electronic Press, 1971
PUBLIC ACCOMMODATIONS
Eskridge v. Division of Alcoholic Beverage Control" was an early
case where a woman was refused service at a bar. A tavern owner's
license was suspended for serving women at a U-shaped counter. The
court found the counter was, in fact, a bar, and that the tavern owner
had violated a municipal ordinance by serving alcohol to a woman seated
at the bar. In its opinion, the court stated:
Ordinances which forbid the serving of liquor to women except
when seated at tables do not violate any constitutional right of
either the licensees or the women, and are well within the
regulatory power of the State.29
The Eskridge decision has been largely overruled by Gallagher v. City
of Bayonne.30 In upholding the right of a woman to obtain service, the
court stated that it cannot accept
as a general assumption that mere sexual difference is a viable
classification under equal protection concepts . . [W] e are
dealing with the application of laws to humanity generally, and
humanity quite clearly is comprised of both masculine and
feminine elements .... The truly mature male or female . . . is
composed of a wholesome synthesis of the elements of per-
sonality which perhaps we have been too prone to oversimplify
and relegate to categories labeled male or female."
There is a line of cases which considers the right of a woman to work
in a tavern, but this goes beyond the problem of the right to be served
and is of interest only tangentially. In Goesaert v. Cleary,32 the Supreme
Court upheld the constitutionality of a Michigan statute which prohibited
women from working as bar maids unless they were wives or daughters
of tavern owners. However, in Wilson v. Hacker,"3 a woman's right to
join a union as a bartender was upheld, the court stating that
[u]nder the present New York statutes, the special penalties
or procedures cannot be invoked against discrimination on the
ground of sex, but it does not follow that a court may not
condemn such discrimination as a violation of fundamental
28. 30 N.J. Super. 472, 105 A.2d 6 (1954).
29. Id. at 476-77, 105 A.2d at 9.
30. 102 N.J. Super. 77, 245 A.2d 373 (1968), aff'd, 106 N.J. Super. 901, 256 A2d
61, aff'd, 55 N.J. 159, 259 A.2d 912 (1969).
31. Id. at 82,245 A2d at 376.
32. 335 U.S. 464 (1968).
33. 200 Misc. 124, 101 N.Y.S.2d 461 (Sup. Ct. 1950).
19711
Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4
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324 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 5
principles and judge the legitimacy of union activities in the
light of such principle. 4
Since Judge Mansfield in McSorleys' treated the issue of sexual
classification as discrimination without foundation in reason, 5 the court
limited the impact of the decision. Thus, McSorleys' is directly applicable
only to situations where women are denied the right to enter a public
accommodation under sufficient control of the state. The case would,
however, appear to have persuasive value in any factual situation where
the state attempts to regulate the relationship between women and alcohol.
Judge Mansfield found no rational basis for excluding women from
McSorleys' ;36 he concluded that the exclusion violated the equal pro-
tection clause of the fourteenth amendment.
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 impression-
able creatures in need of protection from the rough and tumble
of unvarnished humanity will no longer justify sexual separat-
ism. At least to this extent Woman's "emancipation" is re-
cognized."
CONCLUSION
Philosophically, the courts have changed slowly in the approximately
hundred years since Bradwell v. State.8" There, Justice Bradley, in a
concurring opinion, stated his belief that
It] he natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations
of civil life .... The paramount destiny and mission of women
are to fulfill the noble and benign offices of wife and mother.
This is the law of the Creator.
The law of the Creator may have been changed by secular law, but the
views of most people concerning women have not. The New York Times,
in reporting the McSorleys' story, said, "There was, perhaps a traceof
34. Id. at 135, 101 N.Y.S.2d at 473. See also McCrimmon v. Daley, 418 F.2d 366
(7th Cir. 1969).
35. 317 F. Supp. at 603.
36. Id. at 605-06.
37. Id. at 606.
38. 83 U.S. (16 Wall.) 130 (1872).
39. Id. at 141-42.
Seidenberg: The Federal Bar v. The Ale House Bar: Women and Public Accommodat
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1971] PUBLIC ACCOMMODATIONS 325
wistfulness in the ruling [in that] the sawdust-floored haven was just
another 'public place' that must admit any customer who comes in, even
a woman."'
0
40. N.Y. Times, June 26, 1970, at 1, col. 7 (emphasis added).
Valparaiso University Law Review, Vol. 5, No. 2 [1971], Art. 4
https://scholar.valpo.edu/vulr/vol5/iss2/4


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