click here to return to the Calico Cat homepage

Ladies' night is unconstitutional

“The [New Jersey] Assembly voted 78-0 to approve a bill making it legal for bar owners and others to offer special promotions such as charging women different prices for drinks. The measure was designed to specifically overturn [a] June 1 [administrative] ruling.” (CBS News: Jersey: Oh Yes It's Ladies' Night)

But it’s still unconstitutional. The state of New Jersey can overturn its own administrative courts, but it can't overturn the United States Constitution.

The Civil Rights Act of 1964 does not prohibit discrimination against women in places of public accommodation. The relevant sentence is: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” § 201 (a). It doesn’t say anything about sex.

The Supreme Court, however, held in Reed v. Reed, 404 U.S. 71 (1971), that the Equal Protection Clause of the Fourteenth Amendment prohibits state actors from “arbitrarily” favoring one sex over the other. And more on point is Craig v. Boren, 429 U.S. 190 (1976), where the Supreme Court held unconstitutional an Oklahoma statute that allowed 3.2% beer to be sold to women 18 or older but not to men unless they were 21 or older.

But those are state actors, you say, and bars are private establishments? In the somewhat famous Seidenberg v. McSorleys' Old Ale House, 317 F. Supp. 593 (SDNY 1970), case, there was a bar in New York City that was only open to men. The court ruled that bars were so heavily regulated by the state that they became state actors, and thus it violated the Constitution for bars to discriminate based on sex. There was a similar set of facts and the same ruling in Bennett v. Dyer’s Chop House, 350 F. Supp. 153 (N.D. Ohio 1972).

Although McSorleys’ was only a District Court case, because it has been cited favorably by many other courts, including the Supreme Court in the Craig case, it has a much stronger weight of precedent than your average District Court case.

The conclusion is clear. Given the existing legal precedents, ladies’ nights at bars are unconstitutional. All we need is someone to challenge a bar in federal court so we can get the practice abolished.

Yes, I’m aware that there are various sociological and economic reasons for why bars have ladies’ nights. Men like to drink where there are women around, and women get into the bar for free and/or get less expensive drinks, so it’s a win-win situation for both sexes, right? Well yes and no. Men who can’t afford the higher prices lose. Men who are just going to the bar to have a drink and not pick up any women lose. Maybe the men would be better off if they stayed home and read a book instead of getting drunk at a bar and ogling women?

In the end, it doesn’t really matter if it’s a win-win situation, because it’s important that the laws be applied consistently, and it has consistently been held that sex based discrimination in the sale of alcohol is unconstitutional.

posted Saturday, June 19, 2004