Ladies’ Nights Ruling Shows Power of Precedent
On Wednesday a federal appeals panel upheld the sanctity of an all-American tradition. It ruled unanimously that Ladies’ Nights in clubs do not violate the Constitution. We’re all over this like a bad leisure suit but will refrain from levity. Let’s focus instead on a couple of key aspects of the law and the ruling that affect us all.
Ladies Nights OK in Federal Law; States May Differ
OK, let’s just pause one moment to acknowledge a couple of things. First, charging men and women different prices for drinks or cover charges actually is discriminatory. It’s just not illegal discrimination. Second, some of us get right to the conclusion that the discrimination actually benefits males. Certainly a fair proportion of male club-goers do so not to drink, but to meet women. The logic goes like this: free admission/drinks for women = more women = what’s wrong with that?
Here’s the two takeaways. The lawyer who sued the clubs (who says he’s "antifeminist") lost because the constitutional Equal Protection principle applies only to what’s called "state action." This refers to discrimination by governments, not private individuals. The Civil Rights Act of 1964 does prohibit discrimination in public accommodations (including bars) but applies only to discrimination against race, color, religion, or national origin. The lawyer who sued the clubs tried to bring state action into it because the clubs had state-issued liquor licenses, but the court didn’t buy it. In short, the licenses did not the cause the price discrimination.
The other interesting thing is that the court "with reluctance" referred to a 1972 Supreme Court case it said tied its hands. In that case the Supreme Court said it was OK for an all-white private fraternal lodge, i.e. the Moose Lodge, to refuse service to an African American. Obviously that’s a far more serious and distasteful form of discrimination. But the case remains binding on all lower courts as a matter of federal Constitutional law.
It’s worth pointing out here that New York City’s Commission on Human Rights says it is unlawful to discriminate in public accommodations on the basis of gender. The Commission has said that a "ladies day" promotion at New York Yankees games was illegal, but has not prosecuted a complaint since then. In June, Minnesota outlawed ladies’ nights under a similar set of rules. It makes you wonder, if our antifeminist antihero really wanted to end this insidious discrimination, he would take a different tack.
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