Tuesday, June 7, 2011

Women Can't be Bartenders - SCOTUS Flashback

Can a state ban women from bartending except for the wives or daughters of male owners? You bet!... if it's 1948. The Supreme Court upheld just such a law, from Michigan, in Goesaert v. Cleary, 335 U.S. 464 (1948). I came across this case while reading Rehabilitating Lochner by Prof. David Bernstein (pictured). Sidenote: Bernstein was my Con Law II - Individual Rights professor at George Mason. It's an interesting book about the infamous liberty of contract case, Lochner v. New York, 198 U.S. 45 (1905), and its impact on subsequent civil rights issues.

But back to these female bartenders. The Court's analysis reflects a different time, and begins with the premise that "Michigan could, beyond question, forbid all women from working behind the bar." Although the Court recognized "vast changes in the social and legal position of women," Justice Frankfurter wrote that "[t]he Constitution does not require [state] legislatures to reflect . . . shifting social standards." The analysis was therefore limited to whether the Michigan law "play[ed] favorites among women without rhyme or reasons."

The Court found that the distinction between all women, and wives and daughters of owners, was grounded in sound reason:
Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition.
And, "oversight [by a] husband or father minimizes hazards that may confront a barmaid without such protecting oversight." Thus, the Michigan law was a-ok.

Prof. Bernstein notes that 26 states prohibited women from working as bartenders by 1960. Such laws became illegal discrimination following enactment of Title VII and a "series of Supreme Court cases in the early 1970s." I can't help but think of the movie Coyote Ugly as a great contrast to the "protective" bartending laws of the mid-20th century.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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