The respondent brought an action against the petitioner, a dining bar, that refused service to plaintiff solely because he is a Negro, alleging the violation of the equal protection rights of the Fourteenth Amendment.
The application of state sanctions to enforce a rule that requires racial discrimination would violate the Fourteenth Amendment.
A Caucasian member brought plaintiff, a Negro, to the Moose Lodge’s dining room and bar as his guest and requested service of food and beverages. The Lodge through its employees refused service to plaintiff solely because he is a Negro. Each local Moose Lodge is bound by the constitutional and general laws of the Supreme Lodge, the latter of which contain a provision limiting membership in the lodges to white male Caucasians. The district court found that the lodges maintain a policy and practice of restricting membership to the Caucasian race and permitting members to bring only Caucasian guests on lodge premises. Appellee, while conceding the right of private clubs to choose members upon a discriminatory basis, asserts that the licensing of Moor Lodge to serve liquor by the Pennsylvania Liquor Control Board amounts to such state involvement with the club’s activities as to make its discriminatory practices forbidden by the Equal Protection Clause.
Can a private (not public) social club, refuse to provide service to a person solely because he is Black?
Yes, Moose Lodge is not open to the public at large nor is it located or operated in such surroundings that although private in name, it discharges a function or performs a service that would otherwise in all likelihood be performed by the State. The private clubs in question did not foster or encourage racial discrimination in any way, nor can it be said to make the State a partner or even a join venturer in the club’s enterprise. The operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board dose not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to make the latter “state action” within the ambit of the Equal Protection Clause of the Fourteenth Amendment.
Justice Douglas and Brennan
Douglas: Liquor licenses in Pennsylvania are not freely available to those who meet racially neutral qualifications. The quota for Harrisburg, where Moose Lodge No. 107 is located, has been full for many years. No more club licenses may be issued in that city. This state-enforced scarcity of licenses restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week. Access by blacks to places that serve liquor is further limited by the fact that the state quota is filled. Thus, Pennsylvania is putting the weight of its liquor license behind racial discrimination.
Brennan: When Moose Lodge obtained its liquor license, the State of Pennsylvania became an active participant in the operation of the Lodge bar. Liquor licensing laws are primarily pervasive regulatory schemes under which the State dictates and continually supervises virtually every detail of the operation of the business.
The Pennsylvania Liquor Control Board plays absolutely no part in establishing or enforcing the membership or guest policies of the club that it licenses to serve liquor. There is no suggestion in the record that Pennsylvania law, either as written or as applied, discriminates against minority groups either in their right to apply for club licenses themselves or in their right to purchase and be served liquor in places of public accommodation. The only effect that the state licensing of Moose Lodge to serve liquor can be said to have on the right of any other Pennsylvanian to buy or be served liquor on premises other than those of Moose Lodge is that for some purposes club licenses are counted in the maximum number of licenses that may be issued in a given municipality. This falls far short of conferring upon club licensees a monopoly in the dispensing of liquor in any given municipality or in the State as a whole. Thus, the Board’s operation does not constitute a state action and therefore does not violate the Constitution.