United States District Court, Northern District of Illinois, E.D
February 5, 1974
MARY JANE DAUGHERTY ET AL., PLAINTIFFS,
RICHARD J. DALEY ET AL., DEFENDANTS.
Before Kiley, Circuit Judge, and Parsons and McGARR,
The opinion of the court was delivered by: Parsons, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs bring this action pursuant to Rule 23(a), Federal
Rules of Civil Procedure, Title 28 U.S.C. on their own behalf
and on behalf of all others similarly situated. They charge
that Ill. Rev.Stat., Ch. 38, Secs. 26.1-2(a) and 26.1-3(c) are
unconstitutional and seek a declaratory judgment, temporary
and permanent injunctions, and other relief.
The statutory provisions in question may be described
generally as prohibiting the solicitation by females in
taverns of the purchase of alcoholic or nonalcoholic
beverages, and prohibiting anyone from serving female
employees beverages purchased by male patrons of taverns.
Plaintiffs sue as representatives of several subclasses. The
first are hostesses and entertainers employed on premises
licensed to sell alcoholic liquor by the drink, who have been
arrested and prosecuted for violation of the state statutes
and later discharged. The second are waitresses and bartenders
who serve or sell alcoholic liquor by the drink on licensed
premises and who have been arrested and prosecuted for
violation of the state law and later discharged. And the third
are licensees of premises whose violations of the state
statutes could result in revocations of licenses by the City.
Defendants are the Mayor of Chicago who is the Local Liquor
Control Commissioner of the City; the Superintendent of Police
of Chicago whose officers investigate and make arrests for
violations of the statutes concerned; the Corporation Counsel
for the City of Chicago; the State's Attorney of Cook County,
who presents violations of the statutes and proceedings for
revocation of licenses; and certain police officers who have
made arrests under the statutes.
The defendants moved for dismissal for want of jurisdiction
and, alternatively, applied for the convening of a three-judge
court (28 U.S.C. § 2281). Notice was given to the Governor and
Attorney General of Illinois, required by 28 U.S.C. § 2284. Each
indicated by letter that, for the time being, he will not
intervene nor participate in the matter.
A temporary restraining order was entered by a single judge
of this district. It restrained the Chicago Liquor Commission
from enforcing §§ 26.1-2 and 26.1-3 through revocation
proceedings against any of plaintiffs' establishments. The
order was expanded later to restrain the defendants
Superintendent of Police and policemen from entering
plaintiffs' establishments for purposes of harassment, but
allowed them to enter for the purpose of arrest upon probable
cause to believe that violations of the questioned statutes
This three-judge court was convened to consider the question
of the constitutionality of the statutes. Finding that at
least the tavern owners and licensees have standing to sue and
that jurisdiction exists, we have had the matter of
constitutionality of the statutes on their face briefed and
argued by the parties.
The pertinent provisions of Sections 26.1-2 and 26.1-3 are
"No female, whether employee, entertainer or
"(a) Solicit, induce or request a patron to
purchase any alcoholic or nonalcoholic
beverage for herself or any other
person * * *." * * *
"26.1-3 Other Prohibited Activities
"No person may * * *
"(c) Knowingly serve to a female employee any
alcoholic or nonalcoholic beverage which was
purchased by any male person not related to such
employee by blood or marriage."
The plaintiffs complain that these statutory provisions
discriminate against females and against persons who serve
drinks to female employees solely on the basis of sex. Such
discrimination, they argue, constitutes an invidious
limitation of and infringement upon the equality of the sexes
without any rational or legitimate basis. They also complain
of statutory overbreadth and vagueness.
The defendants urging the constitutionality of the statutes,
seek to rely on the decisions of the Supreme Court in Goesaert
v. Clary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), and
California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d
342 (1972) which, they say, upheld similar statutory
prohibitions against a variety of constitutional challenges.
We conclude that the classifications contained in Sections
26.1-2(a) and 26.1-3(c) and their overbreadth and vagueness
violate the Fourteenth Amendment to the Constitution of the
In California v. LaRue, supra, the Supreme Court upheld a
California regulation which prohibited the performance of
certain sexual acts in places where liquor by the drink was
sold. In arriving at its conclusion the Court recognized that
the broad sweep of the Twenty-first Amendment conferred upon
states something more than the usual state authority over
public health, welfare, and morals. Id. at 114, 93 S.Ct. 390.
But it ". . . did not go so far as to hold or say that the
Twenty-first Amendment supersedes all other provisions of the
United States Constitution in the area of liquor regulations."
Id. at 115, 93 S.Ct. at 395. The standard to be applied is
rationality: the state regulation must have some rational
basis. Id. at 116, 93 S.Ct. 390. More recently, Mr. Justice
Brennan, writing for a plurality in Frontiero v. Richardson,
411 U.S. 677, 682, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973),
stated that classifications based upon sex "are inherently
suspect and must therefore be subjected to close judicial
The Illinois Legislature has broad regulatory authority over
the disposition and sale of liquor within Illinois. We do not
have here the question of the authority of the State to impose
reasonable controls upon employee solicitations or the
inducing of patrons to buy drinks, or even to ban solicitation
entirely. But to prohibit solicitation by female persons and
not male persons sets up a classification based on sex which
is subject to "close scrutiny" under the Equal Protection
Clause of the Fourteenth Amendment. Reed v. Reed, 404 U.S. 71,
92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
In Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed.
163 (1948), the Court upheld*fn1 the validity of a Michigan
barmaid statute which prohibited a woman from tending bar who
was neither the wife nor daughter of the male owner. Licenses
were issued only to men, and a rational inference was drawn
that the protection and "oversight assured through ownership
of a bar by a barmaid's husband or father minimizes hazards
that may confront a barmaid without such protecting
oversight." Id. at 466, 69 S.Ct. at 200. The issue in that case
was decided by examining the specific rational basis for the
legislative goals which were presented to that Court. The
question concerning the constitutionality of a classification
must be decided on a case by case basis. Goesaert, supra, 335
U.S. at 467, 69 S.Ct. 198. In addition, in Goesaert the Supreme
Court reviewed a Michigan
statutory classification of women in employment before the
enactment of the 1964 Federal Civil Rights Act, 42 U.S.C. § 2000a
et seq., which with a very limited exception (Sub-sec.
e-2) provides a blanket prohibition against sex discriminations
in employment. This was pointed out in the more recent decision
of the Seventh Circuit Court of Appeals in McCrimmon v. Daley,
418 F.2d 366, 370-371 (1969).
The defendants argue that Illinois classification
nevertheless is reasonable because it attempts to eliminate
commercial exploitation through those well-known sexual
inducements inherent in the practice of solicitation by female
employees. Clearly, the objective of eliminating undesirable
commercial exploitation particularly through sexual
inducements practiced in the surrounding of a bar is not
without some legitimacy. The question, however, is whether the
statutes advance that objective in a manner consistent with
the Equal Protection Clause. See, Reed v. Reed, supra, 404 U.S.
at 76, 92 S.Ct. 251. No reason appears nor is advanced to show
why the elimination of commercial exploitation is more
attainable by prohibition of solicitation by women employees
than by male employees. Absent such a showing we see no reason
for discriminating in favor of males and against females in
serving the legitimate purpose of the legislature in enacting
the sections in suit.
We find today no rational basis for distinguishing between
female and male tavern employees who solicit drinks for
themselves or others; nor between the bartender or barmaid who
serves solicited drinks to a male employee. There is both sex
discrimination and statutory overreaching when a male
bartender or waiter may lawfully suggest that a patron
purchase a drink for him, the barman or for anyone else,
regardless of sex; but when this suggestion is made by a
female bartender, waitress or entertainer she has a committed
a State crime and as a result a business license may be
revoked. (Illinois delegates to its cities its authority to
grant tavern licenses and to revoke them for cause including
violations of state law restricting use of taverns by women
and minors. Ill.Rev.Stats. Ch. 43, §§ 110-114.)
Section 26.1-2(a) is overbroad and vague for a further
reason. If read literally, it would prohibit all females
whether employees or patrons from requesting the purchase of
alcoholic or nonalcoholic beverages. Even in the most innocent
circumstance this section would prevent a woman from asking
her male companion to purchase any liquid refreshment for her
while they are in a bar. The principal source of this
over-breadth stems from the words "or otherwise". ("No female,
whether employee, entertainer or otherwise shall:. . . .")
"Ejusdem Generis", as a rule of statutory construction, does
not confine these all-embracing words to the class of females
employed by a licensed establishment. Section 26.1-1, a
preface provision to the sections under attack, provides the
specific meaning for the words "female employee".*fn2 It
includes any woman hired for whatever purpose. The words "or
otherwise", to have any meaning, must relate to the entire
class of women whether hired or not.
We conclude that both Sections 26.1-2(a) and 26.1-3(c) of
the Illinois Criminal Code, Ill.Rev.Stats., Ch. 38, violate
the Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. They are discriminatory on
their face, overbroad and vague.
Defendants' motions to dismiss should be and hereby are
denied. Defendants are permanently enjoined from enforcing
these two provisions of the Illinois Criminal Code.
It is so ordered.