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White v. Fleming


decided: July 24, 1975.


Appeal from the United States District Court for the Eastern District of Wisconsin - No. 70 C 704 JOHN W. REYNOLDS, Judge.

Swygert and Tone, Circuit Judges, and Perry, Senior District Judge.*fn*

Author: Tone

TONE, Circuit Judge.

Before us in this appeal is the constitutionality of a Milwaukee ordinance which prohibits female employees of "Class B" taverns from sitting with male patrons or from sitting or standing at or behind the bar. The District Court held the ordinance unconstitutional. We affirm the judgment.

In her complaint plaintiff alleges that she is by occupation an entertainer and that she was "charged with the offense of sitting with a male patron in violation of section 90-25 of the Milwaukee Code of Ordinances." Naming as defendants the Milwaukee City Attorney, the state judge before whom her prosecution was pending, and the Milwaukee Police Department, she prayed for injunctive relief against the pending prosecution and for declaratory relief adjudicating the ordinance invalid.

The District Court denied temporary injunctive relief,*fn1 following which the state prosecution came on for trial and the charge against plaintiff was dismissed. Defendants' subsequent motion to dismiss this proceeding based on mootness was denied since the claim for declaratory relief remained. White v. Flemming, 344 F. Supp. 295 (E.D. Wis. 1972).

Subsequently the court ruled on defendants' motion to dismiss addressed to the merits, granting the motion as to the Milwaukee Police Department on the authority of City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973), and denying the motion as to the other defendants. Although the plaintiff had not moved for summary judgment, the court granted summary judgment in her favor, relying, inter alia, on Procter & Gamble Independent Union of Port Ivory, N. Y. v. Procter & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), cert. denied, 374 U.S. 830, 10 L. Ed. 2d 1053, 83 S. Ct. 1872 (1963), and Pitts v. Knowles, 339 F. Supp. 1183 (W.D. Wis. 1972), aff'd, 478 F.2d 1405 (7th Cir. 1973), as authority for that procedure. The court declared the ordinance invalid under the equal protection clause of the fourteenth amendment and enjoined defendants from enforcing it against plaintiff. White v. Flemming, 374 F. Supp. 267 (E.D. Wis. 1974).

The ordinance, which the District Court held invalid in its entirety, applies to female entertainers, waitresses, and other female employees. Although plaintiff is solely an entertainer and is therefore affected only by the provisions of the ordinance applicable to entertainers, the provisions covering other employees are substantially the same and are "so interwoven with the system held invalid that [they] cannot stand alone." Dorchy v. Kansas, 264 U.S. 286, 290, 68 L. Ed. 686, 44 S. Ct. 323 (1924); see also United States v. Raines, 362 U.S. 17, 23, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960). Consequently, the ordinance must stand or fall in its entirety.

The ordinance prohibits female employees from standing or sitting "at or behind the bar, except for the specific purpose of receiving food or drink orders for delivery to patrons who are not at the bar" and from sitting with male patrons anywhere on the premises. Exempted are licensed female bartenders, female employees who are members of the immediate family and household of the licensee, and "female entertainers while actually performing in an area behind the bar which is ordinarily used for back-bar entertainment."

Until recent years the separate treatment of women in the regulation of liquor dispensing establishments was uniformly held to be a valid classification under the equal protection clause of the fourteenth amendment. Justice Frankfurter, speaking for the Supreme Court in 1948 in Goesaert v. Cleary, 335 U.S. 464, 93 L. Ed. 163, 69 S. Ct. 198, sustained a Michigan statute which in effect prohibited any woman from serving as a bartender in a city having a population of 50,000 or more unless she was "the wife or daughter of the male owner." He said:

"The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. See the Twenty-First Amendment and Carter v. Virginia, 321 U.S. 131, 88 L. Ed. 605, 64 S. Ct. 464. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards. " Id. 335 U.S. at 465-466.

The Court held also that the subclassification of women whose husbands or fathers owned a bar, as against other women, was similarly valid:

"Michigan evidently believes that the 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. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws." Id. at 466.

Mr. Justice Rutledge, joined by Justices Douglas and Murphy, dissented on the ground that the statute arbitrarily discriminated between male and female owners of liquor establishments, allowing the male owner to employ his wife or daughter as a barmaid, even though he himself was always absent, but preventing the female owner from employing her daughter or working herself as a barmaid, even if a male employee was always present on the premises to keep order. This analysis, thought the dissenters, showed that the statute was not "motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids." Id. at 468.

The dissenting opinion in Goesaert was perhaps one of the earliest judicial refusals to accept uncritically the stereotyping of women which had so long prevailed in the application of the equal protection clause. It was to be many years, however, before the dissenters' approach found much favor in the courts. State courts and lower federal courts before and after Goesaert v. Cleary sustained, without much critical examination and usually based upon the traditional sex-role of women (see Women's Liberation Union of Rhode Island v. Israel, 379 F. Supp. 44, 50-51 (D. R.I. 1974)), statutes which forbade the sale of liquor to women, the employment of women, and even the presence of women in liquor establishments. See, e.g., Henson v. City of Chicago, 415 Ill. 564, 114 N.E.2d 778 (1953); City of Milwaukee v. Piscuine, 18 Wis. 2d 599, 119 N.W.2d 442 (1963) (upholding the ordinance challenged in the case at bar); Annot., 172 A.L.R. 620 (1948); Annot., 9 A.L.R.2d 541 (1950); see also Women's Liberation Union, supra, 379 F. Supp. at 50.

In recent years, the changing attitudes concerning women's roles in society have been reflected not only in action by Congress (see, for example, the Equal Pay Act of 1963, 29 U.S.C. § 206(d) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, et seq.*fn2) but in court decisions as well. While the Supreme Court has not yet overruled Goesaert v. Cleary, the judicial and social climate has changed since that case was decided. This court showed, arguably, a disposition narrowly to limit Goesaert to its facts in holding that a complaint challenging Chicago's barmaid ordinance, which the district court had dismissed on the authority of Goesaert, presented substantial constitutional questions under the equal protection clause and, in view of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, the supremacy clause.*fn3 McCrimmon v. Daley, 418 F.2d 366, 369-371 (7th Cir. 1969). And at least two district courts have recently held invalid state regulation of the conduct of women in liquor establishments which would surely have been thought to be controlled by Goesaert not many years ago. Daugherty v. Daley, 370 F. Supp. 338, 340-341 (N.D. Ill. 1974) (three-judge court); Women's Liberation Union, supra, 379 F. Supp. 44. Thus, while we would not be free to disregard Goesaert in a case from which it was indistinguishable, McCrimmon v. Daley, supra, 418 F.2d at 369, neither do we feel bound to extend its holding in light of the developments of recent years in the law of equal protection and the rights of women. Cf. Foster v. Sparks, 506 F.2d 805, 827 (5th Cir. 1975).

It is true that Goesaert was grounded in part upon the broad powers of the state to regulate the traffic in liquor under the twenty-first amendment, and the Court has recently reaffirmed those powers in California v. LaRue, 409 U.S. 109, 114-115, 118-119, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972), which upheld a California Department of Alcoholic Beverage Control regulation prohibiting explicit sexual entertainment in bars. The subject of the ordinance here in question is, once again, liquor dispensing establishments. However, as the Supreme Court recognized in LaRue, 409 U.S. at 115, this is only one circumstance entitled to weight: ". . . the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened" by the amendment, id., but other constitutional provisions are not rendered inapplicable. It is still necessary to consider and apply the appropriate equal protection test, see Daugherty v. Daley, supra, 370 F. Supp. at 340, and this is where we now proceed.

The Supreme Court has rejected classifications based on sex which do not bear a rational relationship to the objective the regulation is designed to achieve. Reed v. Reed, 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); Frontiero v. Richardson, 411 U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973). In Reed a unanimous Court, speaking through the Chief Justice, held invalid under the equal protection clause an Idaho statute which gave preference to men as administrators of decedents' estates. In Frontiero sex-based classifications of members of the uniformed services for purposes of dependents' benefits were held to be unjustifiably discriminatory. While no opinion in Frontiero commanded a majority, all justices except Mr. Justice Rehnquist, who dissented, relied on Reed. Justices Brennan, Douglas, White, and Marshall believed that "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny" and found "at least implicit support for such an approach in" Reed. 411 U.S. at 682 (footnotes omitted). See also Mr. Justice Brennan's dissent, joined by Justices Douglas and Marshall, in Geduldig v. Aiello, 417 U.S. 484, 497, 41 L. Ed. 2d 256, 94 S. Ct. 2485 (1974). The other members of the Court, however, are uncommitted on the question of whether classifications based on sex are inherently suspect.*fn4 Subjecting the Wisconsin classification to a strict scrutiny test would therefore be inappropriate,*fn5 and it thus becomes necessary to examine the breadth of less rigorous standards.

The minimal requirement for the validity of state statutes and city ordinances under the equal protection clause is that the statutory classification bear some rational relationship to a legitimate state purpose. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1972); Morey v. Doud, 354 U.S. 457, 465-466, 1 L. Ed. 2d 1485, 77 S. Ct. 1344 (1957); Williamson v. Lee Optical Co., 348 U.S. 483, 489-490, 99 L. Ed. 563, 75 S. Ct. 461 (1955). How far a court will go today in attributing to a legislative classification a purpose which would support its validity depends more perhaps upon the court's devotion to principles of judicial restraint than upon any set rules clearly articulated by the Supreme Court. In McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), for example, the Court said that a classification must be sustained "if any state of facts reasonably may be conceived to justify it." This might be considered the traditional approach for use in ordinary cases in which state regulations are challenged under the equal protection clause and has been followed in a large number of cases. See, e.g., Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970); Hoyt v. Florida, 368 U.S. 57, 59-65, 7 L. Ed. 2d 118, 82 S. Ct. 159 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 590-592, 6 L. Ed. 2d 551, 81 S. Ct. 1135 (1961); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-529, 3 L. Ed. 2d 480, 79 S. Ct. 437 (1959); Goesaert v. Cleary, supra. See also Developments in the Law - Equal Protection, 82 Harv. L. Rev. 1065, 1076-1085 (1969). Until the Supreme Court's recent decision in Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975), this approach, which of necessity accords great deference to legislative choices, appeared to be losing momentum. The Court, in a number of cases dealing with classifications it did not declare to be inherently suspect, was nevertheless less willing than it formerly had been to ascribe legitimate purposes to the legislative body, and thus seemed to subject the classifications in question to a review of somewhat greater intensity. See, in addition to Reed and Frontiero, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 651 and n.2, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974) (Powell, J., concurring); San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973); Eisenstadt v. Baird, 405 U.S. 438, 477 et seq., 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); cf. Weber v. Aetna Casualty & Surety Co., supra, 406 U.S. at 173-175; see also Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 33-37 (1972). In the recent Salfi decision, the Court reaffirmed the traditional rational basis test as applicable in disposing of constitutional challenges to social welfare legislation. See also Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974). Compare Jimenez v. Weinberger, 417 U.S. 628, 632-637, 41 L. Ed. 2d 363, 94 S. Ct. 2496, and (Rehnquist, J., dissenting) 638-641 (1974).

In the area of sex classifications, which, as we noted above, four members of the Court regard as "inherently suspect," a number of lower courts have viewed Reed and Frontiero as indicating that a less deferential test is to be applied. The Fourth Circuit, in fact, based upon its interpretation of Reed, has gone so far as to recognize a standard which lies between the rational basis and compelling interest tests for use in sex classification cases, the "intermediate" test being whether there is a "fair and substantial" relation between the basis of the classification and the object of the classification. Eslinger v. Thomas, 476 F.2d 225, 230-231 (4th Cir. 1973).*fn6 The Ninth Circuit has interpreted Reed and Frontiero as suggesting "that a classification based upon sex will have to be justified by more than the traditional 'rational' connection between the classification and some valid legislative purpose." Berkelman v. San Francisco Unified School Dist., 501 F.2d 1264, 1269 (9th Cir. 1974). See also Wark v. Robbins, 458 F.2d 1295, 1297 n. 4 (1st Cir. 1972).

The Second Circuit, while applying a rational basis standard to hold a maternity leave regulation invalid on the ground of equal protection, found evidence in recent Supreme Court decisions "that rational basis scrutiny is not so deferential a standard of review as had been previously and generally supposed." Green v. Waterford Board of Education, 473 F.2d 629, 633 (1973).*fn7 More recently the Second Circuit, in a case that did not involve a classification based on sex, concluded that even though Green had been cited with approval in LaFleur (414 U.S. at 642) the Supreme Court's application of a rational basis test in Village of Belle Terre v. Boraas, supra, reversing the Second Circuit's decision in that case which had applied a less deferential test, Boraas v. Village of Belle Terre, 476 F.2d 806, 814 (2d Cir. 1973), rendered it "unclear whether the Court now accepts an intermediate form of equal protection analysis." Citizens Committee for Faraday Wood v. Lindsay, 507 F.2d 1065, 1068 n. 5 (2d Cir. 1974), cert. denied, 421 U.S. 948, 95 S. Ct. 1679, 44 L. Ed. 2d 102 (1975).

Two other Supreme Court cases must also be considered. Eisenstadt v. Baird, supra, 405 U.S. 438, held that the different treatment of married and unmarried persons under a Massachusetts statute regulating the sale of contraceptives violated equal protection. Mr. Justice Brennan, speaking for the Court, quoted the statement from Reed which has led some courts to conclude that there is an intermediate standard (see note 6, supra) and then said:

"The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons [under the challenged Massachusetts statutes]." Id. at 447.

In Geduldig v. Aiello, supra, 417 U.S. at 494-495, the Court held the exclusion of pregnancy from the disabilities covered by workmen's compensation not to be violative of the equal protection clause. The dissenters argued that the classification was sex-based and should be subjected to the strict scrutiny test and invalidated, id. at 497-505, but the majority, speaking through Mr. Justice Stewart, did not view the classification as sex-based and, in a footnote, distinguished Reed and Frontiero as "involving discrimination based upon gender as such." Id. at 496 n. 20.

The precise terms of the test ultimately to be evolved by the Supreme Court for judging the validity of a classification based on sex cannot now be determined. But whatever formulation the Court may ultimately adopt, it can at least be divined from the authorities discussed above that we may not accept a classification based solely on sex without further inquiry as to whether the differences between men and women rationally justify the classification.

The interest sought to be advanced by the ordinance before us, judging from its terms, from the Wisconsin Supreme Court's decision upholding it (City of Milwaukee v. Piscuine, supra, 18 Wis.2d at 608-613, 119 N.W.2d at 447-450), and from the history and legal literature cited above pertaining to similar regulations,*fn8 is the protection of employees, customers, and society generally against promiscuous sexual activity that is thought likely to follow from contacts between men and women where liquor is sold by the drink.*fn9 The classification chosen to further that interest is female employees versus male employees. A "ground of difference that rationally explains the different treatment" of men and women by the ordinance (Eisenstadt v. Baird, supra, 405 U.S. at 447) would exist only if it could rationally be assumed that a female employee is more likely than a male employee to engage in promiscuous sexual contacts with customers of the opposite sex. While a legislative body may draw on history for an assumption that most of those who will engage in prostitution will be women, and perhaps for an assumption that prostitution and other promiscuous sexual activities sometimes stem from contacts made in bars, those assumptions do not in logic or experience support broader assumptions about all or most women who work in bars or the relative proclivities of men and women who work in, or are patrons of, bars. We think it is impermissible under the equal protection clause to classify on the basis of stereotyped assumptions concerning propensities thought to exist in some members of a given sex. This is not necessarily to say that sex is an inherently suspect classification, a point which the Supreme Court has yet to decide. There are anatomical and physiological differences between the sexes that may justify classification for certain purposes. But these differences hardly include a greater or lesser propensity for a given kind of conduct.

We hold, therefore, that the provisions of the Milwaukee ordinance in issue here are in violation of the equal protection clause.




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