Moose Lodge No. 107 v. Irvis

PETITIONER:Moose Lodge No. 107
RESPONDENT:Irvis
LOCATION:Former Moose Lodge No. 107

DOCKET NO.: 70-75
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 407 US 163 (1972)
ARGUED: Feb 28, 1972
DECIDED: Jun 12, 1972

ADVOCATES:
Frederick Bernays Wiener – Argued the cause for the appellant
Harry J. Rubin – Argued the cause for the appellees

Facts of the case

K. Leroy Irvis, a black man who was a guest of a white member of the Moose Lodge No. 107, was refused service at the club’s dining room because of his race. The bylaws of the Lodge limited membership to white male Caucasians. Irvis challenged the club’s refusal to serve him, arguing that the action of the Pennsylvania liquor board issuing the Lodge a license made the club’s discrimination “state action.”

Question

Did the discriminatory practices violate the Equal Protection Clause of the Fourteenth Amendment?

Warren E. Burger:

This morning in number 70-75, Moose Lodge against Irvis.

Frederick Bernays Wiener:

Mr. Chief Justice —

Warren E. Burger:

Just suspend for one moment, Mr. Wiener?

Mr. Wiener you may proceed.

Frederick Bernays Wiener:

Mr. Chief Justice and may it please the Court.

The substantive issue in this case is whether anything in the Constitution of the United States requires the virtual destruction of private clubs in this country.

But before I can reach that question, the rules require that I reach the jurisdictional issue which the Court postponed.

Before I can usefully do either, I must re-sketch the facts.

Appellant Moose Lodge is a private club in every respect and the parties have so stipulated in detail.

It has selective and invitational membership procedures.

Admission to the club house is restricted to members and their guests.

It has never received, and isn’t now receiving any public funds.

It’s club house is not located on public property.

It performs no public functions.

It conducts no community activity.

It has never ask for public assistance either from courts or police in the conduct of it affairs.

It’s never sought public patronage through advertising.

It’s not a recent transformation.

There is no sham or substitutes here.

It is a non-profit corporation, controlled by its membership and the object of its bounty are Mooseheart which is an orphanage and school and Mooseheaven which is a home for the elder. Now here is all that Moose Lodge receives from public bodies.

It has a occupancy permit for its building.

It has an operating permit for its elevator.

It has a health permit for its restaurant.

It gets also what every private residents within the city limits gets, water, steam heat, and trash removal for which it pays and it has a club liquor license from the Commonwealth.

Moose Lodge’s membership is restrictive as is that of other clubs and organizations in this country that include more than 70,000,0000 Americans.

Restriction are; first Male, second Caucasian and not married to a non Caucasian, third belief in the supreme being.

I better read from the court’s findings as to how this case arose.

A Caucasian member in good standing brought plaintiff, a Negro to the 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.

There upon, the plaintiff Mr. Irvis, who is the majority leader of the Pennsylvania house of representatives brought this action against the Moose Lodge and the members of the Pennsylvania Liquor Control Board, alleging the unconstitutionality of the Pennsylvania Liquor Code as applied, because it did not prohibit the issuance of club licenses to clubs with racial membership restrictions.

Frederick Bernays Wiener:

The three-judge court held that liquor regulation by Pennsylvania was so pervasive that Moose Lodge’s membership restrictions were there by transformed into State action, but it made a significant qualification which I’d better read in preference to characterizing, this is from page 40 of the appendix.

Nothing in what we hearsay implies a judgment on private clubs which limits participation to those of a shared religious affiliation or a mutual heritage in national origin.

Such cases are not the same as the present one where discrimination is practiced solely on racial grounds and the judgment was that either the Moose Lodge had to drop it’s racial restrictions or else lose its liquor license.

Moose Lodge moved to modify that judgment so as to permit Mr. Irvis guest privileges.

He opposed that it was denied by the court.

This appeal followed and Your Honors postponed jurisdiction.

Now under the rules I must argue that jurisdictional point first.

Potter Stewart:

What specific was the Moose Lodge’s motion to amend the judgment, is that — where in the record is that?

Frederick Bernays Wiener:

That is at page 42 of the appendix.

There is an answer at page 44 and the motion was denied.

Potter Stewart:

Does the affect of it would have been to —

Frederick Bernays Wiener:

Permit any member to bring Mr. Irvis in as a guest.

Potter Stewart:

Only Mr. Irvis?

Frederick Bernays Wiener:

Well, anybody similarly situated.

Potter Stewart:

Anybody similarly situated?

Frederick Bernays Wiener:

Yes.

Now one of the points on which we agree with Irvis is that the complaint did in did state a cause of action within the jurisdiction of a three-judge court because it is an action to enjoin state wide legislation on the ground that as applied, it denied the plaintiff the equal protection of the law.

Now it’s just not like that Texas University case where the legislation wasn’t a state wide application.

It wasn’t like that Native American Church case where some of the members of the court couldn’t find an allegation of unconstitutionality.

Here that allegation was made.

I don’t think it would be proper to both or helpful to the Court for me to discuss the cases in detail, they are all set out in our break.

We think that even though jurisdiction originally attached and of course the touch tone is the compliant, it was thereafter laws and it is our view that there is no present case for controversy because the decree gives Irvis no personal redress, but to the contrary is a judgment punitive in character and legislative in it’s application.

Now they stipulated that the loss of a liquor license would seriously impair Moose Lodge’s ability to contribute to the benevolent purposes of the supreme lodge.

Irvis didn’t ask for damages, he did not sue as a tax payer, he didn’t bring a class action, he doesn’t seek membership.

He repeatedly conceded here and below the right of the Moose Lodge to exclude him, and he repeatedly said that there was nothing illegal in its doing so and he rejected modification of the judgment which would have let him in as a guest.

So that all he wants is to have the Moose Lodge lose its liquor license and we say he has no personal stake in that anymore than any of the 12,000,000 other inhabitants of the county.

So that —

Byron R. White:

You are saying that there is no longer a case of controversy?

Frederick Bernays Wiener:

Yes, Your Honor, and having done our duty by raising the jurisdictional question, I ask for the substantive issue.

By way of essential preliminary, I must deal with the district court’s suggestion that there is somehow a difference between racial restrictions on the one hand and religious or ethnic restrictions on the other.

Frederick Bernays Wiener:

Now that, to put it most gently is completely mistaken.

There is no constitutional distinction whatever between state action that discriminates either on races — racial or religious or ethnic grounds.

It is simply not true that the Constitution sustains the anti semi while denouncing the anti hemi (ph).

It is simply not true that some groups are entitled to more equal protection than others.

What this purported distinction really does is picking and choosing among association and groups on the bases of their beliefs and preference which seems to me a most glaring denial of due process because all three restrictions are equally bad if the membership requirements are indeed state action and interestingly enough that is the one of the few points on which the Attorney General of the Commonwealth agrees with us.

He says they are all equally bad.

Therefore, if the private club with the racial restriction can’t have a liquor license because those restrictions are state action, then either can any other private club with religious or ethnic distinctions.

So that if the judgment below is correct, scores of millions of Americans now associated in all manner of private clubs can’t have liquor licenses either and since precedents invariably build on each other, the next will be they will risk losing building permits, restaurant permits and all the rest.

Irvis says they are all different, but there is a main statue that makes the racially restricted club lose its restaurant permit also, while not taking it away from the religiously or ethnically restrictive club.

Fortunately for the continued pluralistic existence of the republic and the Elks’ brief amicus documents this statement that we are indeed a nation of jointness.

The decision below is wrong for three separate reasons which I shall discuss in order.

First, the First Amendment right of associational privacy protects private clubs and fraternal organizations from any and all state efforts, directed at the full exercise and joined under that right.

Second, the issuance of a liquor license does not and cannot transform the acts of the licensee into those of the licensing authority and three, Congress in the Civil Rights Act of 1964 has twice drawn a line between these apparently competing Constitutional rights by accepting from the public accommodations title, private clubs not in fact open to the public and by forbidding the Civil Rights Commission from investigating the membership practices and the internal operations, both of private clubs and a fraternal organization and I will take first the right of associational privacy which it seems to us can be viewed in either negatively or affirmatively.

Negatively it is the proposition that social rights are not enforceable in the courts or by law and for this proposition I draw on the dissenting opinion of the elder justice Harlan in the civil rights cases.

I better give that citation because it is not in brief, 109 US at 59.

I agree that government has nothing to do with social as distinguished from technically legal rights of individuals.

No government has ever brought or ever can bring its people into social intercourse against their wishes.

Whether one person will permit or maintain social relations with another is a matter with which government has no concern I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard.

For even upon grounds of race, no legal right of the citizen is violated by the refusal of others to maintain nearly social relations with it.

Now that as I had indicated is a dissenting opinion, but it is in an area where the dissents of the elder Justice Harlan have now moral weight than those of the Court.

Affirmatively there is a right of constitutional right of liberty of association which is documented by many decisions of this Court and which amounts to this that in my home and in my club and in my chose of business associates, I can act on my prejudice as even those of race, I — they can — my preferences maybe enlightened, they maybe eccentric, they may be bigoted, they may represent prejudices, they may represent postjudices, but in my private domain, I can exclude whom I want and for any reasons and as indicated there is no doubt here.

William H. Rehnquist:

Colonel Wiener, wouldn’t a logical conclusion from that affirmative statement of right of privacy means that state couldn’t chose to prohibit the type of discrimination that was found here?

Frederick Bernays Wiener:

I think very clearly so on the analogy that we used in the brief where the it was the doctrine of unconstitutional conditions.

Your Honor will recall anti removal statutes.

Well the basis, the rationality for striking down those statures was that the state cannot interfere with the exercise of a federally guaranteed right, so that the answer is, the short answer Your Honor is yes.

The state can interfere the right to pick ones associates from among those like minded is an area beyond governmental cognizance and the result below really strikes a wounding blow at human types.

Byron R. White:

You wouldn’t carry that to the extent that saying hence it would be illegal for Pennsylvania to deny a liquor license to a establishments that discriminates?

Frederick Bernays Wiener:

If that private I would, definitely, definitely because if it is private you can discriminate.

If it is a public place, no, fairly not, but this is private, this is — the club is just an extension of the home and evidently knew — the court said that if you have a golf club that is all white or a golf club that is all black, that is the right of private association, but if you have a municipal golf course then you cannot discriminate.

So I would say as long as long as it is private, you can’t — the state can’t — can no more lift the license of Moose because it is limited to Caucasians only or to those who aren’t agnostics or aliens, and it can lift the license of the Knights of Columbus Council which is restricted as I am told to practice in catholic or the liquor license of the Knights of Peter Claver, who are black male and catholics, so if it is a boa fide, a private club and of course I am excluding the shams and subterfuges and —

Byron R. White:

You answering that liquor license is like water or electricity?

Frederick Bernays Wiener:

It would.

There isn’t much deference because Your Honor, once you say that the liquor license is special, we get to the restaurant license.

Now my brother says that the restaurant license is different.

The state of Maine says no.

Irvis in his last brief espouses the proposition from a recent three-judge court case that anybody who discriminates can’t have solace from the government.

Well, that means that where you cut of the water because how many — how many homes in this country get water from other than public body and you would cut of power in large parts of the west, urban and rural because of the vast proliferation of municipal power plants.

So that if you can cut of a liquor license, you can step by step cut of all the rest, if you agree with three-judge district court that no discrimination can receive any solace and I want to emphasis, there is no difference between racial, religious or ethnic because after all —

Byron R. White:

Is this position essential to you prevailing in this case?

Frederick Bernays Wiener:

Well, I have three positions and the second one is which I’ll — one is the affirmative right to privacy and the inability of law or government to dictate social relations.

The second is, the second proposition for reversal is that the issuance of a license doesn’t transform or transmute or metamorphoses the acts of the licensee into those of the licensesor.

I want to emphasis the shaky and indeed sandy foundation on which the notion of state action was directed in this case.

A Caucasian member in good standing brought plaintiff, a Negro to the Lodge’s dinning room and bar as his guest, requested service of food and beverages.

The Lodge through its employees refused service to plaintiff, solely because he was a Negro.

Well, this is an action against the Liquor Control Board to remove, lift the liquor license.

What did the Liquor Control Board had to do with refusal to serve food and there is nothing in this finding by the court that says that the Commonwealth had anything to do with this refusal of service because after all you can’t hardly exist now a days without some kind of whole series of licenses from state and federal authority.

Now if I may interject a personal note, I need four licenses to be here at this elect and speaking to Your Honors.

First I had to be admitted to a state court, then I have to be admitted here, then I have to be admitted in the district and now every year I have to pay professional license fee to the district to be able to practice my profession and gain my livelihood.

If you drive an auto on the highway, you need a driving license, you need a car registration and in many perhaps most states, you need an annual safety inspection.

If you operate a teetotaler club or a locker system club, you need an occupancy permit, an elevator permit and a restaurant permit.

Now those essential licenses don’t turn the lawyer or driver into a public utility who is required to serve all commerce and those licenses don’t turn a private club into a place of public accommodation.

Warren E. Burger:

If your adversary is correct Mr. Wiener, is in your view is the so called bottle club in the same category as the licensed liquor dispenser?

Frederick Bernays Wiener:

I am told that having a bottle, well — I am told that having a locker system, that is every member having his stick or stock of liquor in your locker, not selling liquor, not buying liquor from the club that that would not require a liquor license.

Byron R. White:

But (Inaudible) the liquor and it is selling, isn’t it?

Frederick Bernays Wiener:

Yes but the state doesn’t say that if you buy a bottle of Old Overholt and take it to your home, you can exclude people you don’t like or prefer not to associate.

Byron R. White:

I didn’t say that, but it is a nevertheless selling a liquor to enliven a party that may discriminate against a –?

Frederick Bernays Wiener:

Well, that is the extent to which you would go and the — the irrationality of the decision becomes apparent when you look at some of the other restrictions.

Now there as Regulation 119 deals with sacramental lines — wines.

By parity of reasoning that would be unconstitutional support of religion and we think that there just isn’t any state action here because of any — as I have said it’s benefit, if any benefit is a touch tone, nobody can have electric light or electric power if you discriminate in you home.

Byron R. White:

Well, (Inaudible) that there maybe state action, but there is no state action that denies equal protection of the law?

Frederick Bernays Wiener:

Exactly.

In other words, the position we take on that is the position that Your Honor and Justice Black and Justice Harlan took in Bell against Maryland, that you can’t attribute to the licensing authority a discriminatory acts on the part of licensees is too big of a jump.

Warren E. Burger:

Mr. Wiener you said that Pennsylvania doesn’t call for any license of a so called locker club.

Are there some states that do require?

Frederick Bernays Wiener:

Your Honor, I am not an expert of liquor regulation in the several states, but if you — if you say that Pennsylvania is so pervasive, you got to have to test the other 50 states to see whether there are differences.

Now the notion that the – the court below espoused that it was liquor regulation was more continues that other regulations, the bar isn’t regulated anymore continuously than the restaurant and as for the so called pervasive regulation what is pervasive.

Look at building codes, look at building codes.

This is the Pennsylvania Liquor Code, this is the Building Official’s Conference of America Basic voca, basic building code.

My figures are that some 800 municipalities have adopted these codes in full or in part.

Now, I don’t think that one is more pervasive than the other and I think you going to have an awful time if you are going to try to compare every area of regulation against liquor regulation to see whether one is or is not pervasive.

I just think that to say that the pervasiveness of a regulation transforms the acts of the licensee into those of the licensing authority is just to rewrite the Constitution.

Now, the Constitution says no state, no state shall deny to any person within its jurisdiction the equal protection of laws.

It doesn’t say no person licensed by a state, it doesn’t say no person pervasively licensed by a state and indeed Your Honors our entire recent constitutional history warns against two great departures from the text.

Take liberty of contract.

What a sorry chapter that was from Lochner v. New York through Morehead against Tipaldo or take the immunity of governmental instrumentality which — which emphasis the value of looking to the text rather than its exajesus.

Mr. Justice Frankfurter when that doctrine was overruled said this.

The judicial history of this doctrine of immunity is a striking illustration of an occasional tendency to encrust on wide interpretations upon the Constitution and thereafter to consider merely what has been judicially said about the Constitution rather than to be primarily controlled by a fair conception of the Constitution.

Judicial exajesus is unavoidable with reference to an organic act like our Constitution, drawn in many particulars with purpose of vagueness so as to live room for the unfolding future.

But the ultimate touch stone of constitutionality is the Constitution itself and not what we have set about and the Constitution says no state.

Now the third ground for reversal is the congressional action in the Civil Rights Act of 1964.

There are two previsions.

First, is Section 203E which exempts from the operation of the public accommodations title, private clubs that are not in fact open to the public and then perhaps even more significantly the Section 504A which forbids the Civil Rights Commission from examining the membership practices and the internal operation of private clubs and fraternal organizations and that is the commission as Your Honors please that Congress directed to collect information concerning the denial of equal protection and the weren’t to look into private clubs.

Congress, as the legislative history shows wanted to protect the constitutional right of private association from interference by the commission and that is clear from the legislative history.

Finally, there is a Thirteenth Amendment point which has been raised up to page 39, of his brief here, Irvis said the injury suffered by Irvis was not just that a private organization barred him because he was black.

This, it was entitled to do, but 70 pages later he contents that to have bargained was a badge or incident of slavery.

Well, now that is just doesn’t wash because the Moose restriction is Caucasians only.

That bars American Indians.

American Indians not only weren’t never systematically enslaved, but they had Negro slaves of their own.

The freed men of Choctaw and Chickasaw and Seminole Nations, so that clearly Caucasians only is not badge or incident of slavery.

So that we say a jurisdiction isn’t lost or if it can’t be regained by a memo, the judgment below must be reversed with directions to dismiss for failure to safeguard (Inaudible).

Warren E. Burger:

Thank you, Mr. Wiener.

Mr. Rubin.

Harry J. Rubin:

Mr. Chief Justice and may it please the Court.

Like Mr. Wiener, I would like to begin with a brief discussion of the preliminary jurisdictional issue which the court has asked us to argue and I would like to note as Mr. Wiener did that both parties agree that a three-judge court jurisdiction was proper in this case and therefore approach the issue from another angle.

I would like to approach it from the standpoint of what this case is not with respect to the three-judge court problem and I would take my text from the citations which appeared just a little over a month ago in this Court’s opinion in Board of Regions.

The citations, twice as I recall, to the case of Phillips versus The United States, I believed in this Court, United States versus Phillips in which Justice Frankfurter discussed the three-judge court problem in some depth and pointed out that the touch stone in these cases where we have legislative action or administrative action is whether or not there has been some lawless exercise of authority by some administrative agency of the Commonwealth, Pennsylvania in this case or some state official in the Phillips case.

And I think when you raise or cast this case in terms of whether or not there has or has not been a lawless exercise of authority, you realize that this is not the Phillips case.

This is a case in which the State Liquor Board acting pursuant to powers granted to it only by the State Liquor Code and acting strictly in accordance with the previsions of that State Liquor Code has granted and renewed a license to a private club in conformity with the provisions of that state liquor code.

Consequently this case does not involve the type of lawless, unauthorized administrative action which the Court in the Phillips case held would preclude three-judge court jurisdiction.

I think it goes without saying of course that this is not a case like Board of Regents.

This is not a case in which only a purely local issue is involved.

This is a case in which a state wide statue, depicting state wide policy of state wide application is presented to the Court.

I think we need not dwell on that particular aspect of the three-judge court problem.

I would point out that this case goes further than a case in the area of liquor regulation in which this Court has upheld three-judge court jurisdiction.

In the case of Idlewild v. Epstein, the New York Liquor case involving the store at New York airport, the Court upheld three-judge court jurisdiction there in an attack on a special provision of the New York liquor law which applied only to one particular complainant the Idlewild liquor shop at the New York airport.

That shop claiming that it was not required to get a license because of its peculiar operations in which it sold only to passengers in foreign commerce.

Well, our case is much broader than that.

Our case involves statewide application of Pennsylvania’s liquor laws to hundreds of state wide and local club organizations.

Consequently if Phillips is good law if Idlewild is good law, if Board of Regents is good law as I urge that they all are, then this case does present a case for a three-judge court jurisdiction and does present a case for appeal to this Court from the decision of the court below.

Byron R. White:

May I ask you, what happened to litigation in the Pennsylvania courts, wasn’t there a –?

Harry J. Rubin:

Yes, Mr. Justice white the Pennsylvania Human Relations Commission and I speak only from hearsay, we have nothing to do with that case nor did my client have anything to do with that case, the Pennsylvania Human Relations Commission itself brought an action in the state courts, seeking to hold that his private club was in fact a place of public accommodation, I believe on the grounds that because it allowed guests to enter, it should then be so held to that extent.

Byron R. White:

Under the Pennsylvania —

Harry J. Rubin:

Under the Pennsylvania law.

That case, that argument was rejected by the Court of Common Police in Dauphin County in Harrisburg.

On appeal to the Pennsylvania Superior Court, it was again rejected and the decision of the court below was affirmed.

It was held that this was not a place of public accommodation.

Byron R. White:

What about the Supreme Court?

Harry J. Rubin:

I understand that the Human Relations Commission has filed a petition to the Pennsylvania Supreme Court requesting the Supreme Court to hear it and at best I know no action has been taken on that petition.

Byron R. White:

That issue is still pending in Pennsylvania –?

Harry J. Rubin:

That issue would be considered still pending.

Byron R. White:

There was now a constitutional issue involved in that?

Harry J. Rubin:

There was not.

Potter Stewart:

Issue under the state law is whether or not it is a place of public accommodation?

Harry J. Rubin:

As the Human Relations Commission has brought it under Pennsylvania Human Relations Act.

Potter Stewart:

Right I understand, under the state statute this case as I understand it further, it is conceded that for purposes of the constitutional issue before us that this is a bona fide private club?

Harry J. Rubin:

That is correct Mr. Justice Stewart.

We have taken that position from beginning of the case.

William O. Douglas:

Would this apply to the — require that the an all black club (Inaudible)

Harry J. Rubin:

I think an all black club whose only purpose was to provide social and fraternal amenities to it’s membership would be in the same position.

Byron R. White:

And but you do anything to do with race and not at all with private clubs.

Harry J. Rubin:

Mr. Wiener has raised the question based on the lower court statement about ethnic clubs, religious clubs and we have answered it this way at great length in our brief and I’ll argue this.

Byron R. White:

Right now —

Harry J. Rubin:

The answer is yes and no Mr. Justice White and the answer is this way.

There are bona fide private clubs whose purposes involve ethnic distinctions, that is in the brief that has been filed by Elks, there are literally hundreds of clubs of say ethnic Americans who are together in private organizations for the purpose of furthering their ethnic histories, their ethnic traditions, their ethnic backgrounds.

If that club is bona fide and once we have passed the special scrutiny that race requires in these matters then there is no reason why that club cannot discriminate on those grounds as we see it because the purpose of the discrimination is a rationale one.

It is not what this Court is called invidious discrimination.

It is true they may exclude someone who is not of that ethnic origin, but the purpose of the club being in existence is a reasonable one, it is not just a social purpose.

Byron R. White:

What about all male clubs?

Harry J. Rubin:

All male clubs?

Byron R. White:

All women clubs?

Harry J. Rubin:

We still don’t have a constitutional amendment as I believe, forbidding discrimination on grounds of sex.

Byron R. White:

That is the Equal Protection Clause?

Harry J. Rubin:

Well, that is as far as I know there has been no ruling on that point.

Byron R. White:

What is your position on that?

Harry J. Rubin:

On all male clubs?

I would have to relay on the feeling that since we do not yet have a constitutional amendment specifically stating that the Equal Protection Clause does not provide that type of protection.

Byron R. White:

So that is just across the board, say a restaurant just refuses to —

Harry J. Rubin:

A restaurant is a normally a public place, a person who is entitled to go.

Byron R. White:

And Equal Protection Clause does it, it would have protected —

Harry J. Rubin:

A restaurant sure has waived any rights to privacy.

Byron R. White:

Well, I am just saying women would have an equal protection?

Harry J. Rubin:

Yes in that respect.

William O. Douglas:

I had been interested years ago in Moslim religion and in the Moslim churches around the world, but I have never been able to get into the Moslim church.

They always stopped me from doing it, is that unconstitutional?

Harry J. Rubin:

I would probably have to ask further why you were stopped at the door?

William O. Douglas:

Because they said I was white.

Thurgood Marshall:

The answer is they are Muslims not Moslims. [Laughter]

Harry J. Rubin:

Like Mr. Wiener in his discussion of liquor laws, I am going to have to retreat to the point of saying I know little or not about that to try to expound on the depths to which that would go.

We know how far we would go when we are discussing this particular problem.

I am not sufficiently familiar with the black Muslims.

I do want to mention one other thing, however, in connection with the preliminary issues or what would I call the preliminary issues and that is this question whether there is or is not a case or controversy here.

Mr. Irvis initiated this case, seeking only one thing.

He was only seeking to preclude the Commonwealth of Pennsylvania from giving solace or support or comfort to the discriminating private club by issuing this liquor license to it.

He never at any time requested membership in the Moose Lodge because we respect the right of Moose Lodge as a private club to determine it’s own membership requirements.

He did not seek damages because the nature of the deprivation that is involved here would make a redress by way of damages insufficient and inadequate, this is a continuing type of discrimination that takes place which would involve the Commonwealth of Pennsylvania over and over and over again.

Therefore, it seems to us and we assume that the lower court agrees that the proper redress here is to sever the relationship between the discriminating private club and the Commonwealth.

Byron R. White:

You say than he had never been denied access to the club, and nevertheless brought this suit that he would have a proper case?

Harry J. Rubin:

Yes I think the same — that result inevitably follows Your Honor.

Byron R. White:

And so that you are saying that any black person, any Negro could have brought this suit and should —

Harry J. Rubin:

The problem —

Byron R. White:

give a standing to litigate the case?

Harry J. Rubin:

That is correct.

The problem then will only be one of proof that is it does the Moose Lodge in fact exclude Negroes, there obviously would been no proof problem.

Here our proof was supplied by the fact that Mr. Irvis was excluded, so we don’t have that problem.

(Inaudible) in the —

Byron R. White:

His being denied and interest was just a proving the discrimination?

Harry J. Rubin:

it tuned — it was the catalyst which proved our point.

Byron R. White:

What about a white person raising the same issue?

Harry J. Rubin:

You mean I think the white person who was the member of the Moose Lodge?

Any citizen could raise it I suppose?

Harry J. Rubin:

I am not that certain, I think that a black person, any person who is discriminated against, has a special standing.

Byron R. White:

Standing whether he was discriminated against that club or not ?

Harry J. Rubin:

Yes, I think that is true.

Thurgood Marshall:

Did Mr. Irvis want to drink?

Harry J. Rubin:

Mr. Irvis was taken to the club by a white member and they sat down at the bar.

I understand they requested food and beverage and were refused.

Thurgood Marshall:

Why is that not under stipulation?

Harry J. Rubin:

I believe it is Your Honor.

Thurgood Marshall:

It is?

I will take your word for it.

Harry J. Rubin:

Yes on page 32 of the appendix, Mr. Wiener points out in the opinion of the court, food and beverage were requested.

Thurgood Marshall:

I Just read the stipulation.

Harry J. Rubin:

Food and beverage —

Thurgood Marshall:

My whole point was all you want was to get to the liquor license?

Harry J. Rubin:

That is correct.

Thurgood Marshall:

And how much good will that do to Mr. Irvis?

Harry J. Rubin:

It will put Mr. Irvis in a position of being a Negro citizen of the Commonwealth of Pennsylvania who knows that a private club is not being aided by the Commonwealth of Pennsylvania in its discrimination.

Thurgood Marshall:

What about the restaurant license?

Harry J. Rubin:

The restaurant license?

The restaurant license like and I would answer Mr. Justice White’s point on the same thing.

We think of the restaurant license, the building permit, the supply of water, the supply of electricity as being in a totally different category from this liquor license and there are several reasons for that.

First of all the restaurant license, the building permit are supplied to the Moose Lodge as they are supplied to any public, any person, any organization for the benefit of the public.

It is for public health and safety.

They are open to all persons.

Water and electricity is supplied to all persons generally.

It’s a function of government.

The liquor license is not in that position.

Thurgood Marshall:

I was talking about the restaurant license, I didn’t say one mumbling word about —

Harry J. Rubin:

The restaurant license Mr. Justice Marshal as we understand it it is only a sanitary license, that is we only used the phrase restaurant license, we where talking only about that license which indicates that the City of Harrisburg has inspected the restaurant kitchen facilities and found them to be sanitary.

Thurgood Marshall:

And must continue to do it?

Harry J. Rubin:

And must continue to do it, but that to is for the protection of the public, protection of those persons who use the restaurant, it is not the type of license that has special benefit to it.

Thurgood Marshall:

What was really driving that is really motion that was made to modify?

Harry J. Rubin:

The motion that was made to modify was a motion which would have allowed Mr. Irvis to be admitted as a guest.

Thurgood Marshall:

And any others?

Harry J. Rubin:

I would assume it would have to be any others, Mr. Wieners has so stated.

Harry A. Blackmun:

Would explain to me why you oppose the motion to modify?

Harry J. Rubin:

Yes I can answer both of those questions I think at the same time.

The motion to modify which would have allowed Mr. Irvis or any others to be admitted us a guest would have done nothing to remove the Commonwealth of Pennsylvania from the discriminatory actions of the Moose Lodge, that is it still would have been a matter of being dependent upon a white member of the Moose Lodge to invite him there.

It still would have been a matter of no particular Negro being sure that the Moose Lodge would or would not discriminate.

The Commonwealth of Pennsylvania would still be issuing that license to a discriminating private club and I think it worth nothing that at the time this motion to modify was being presented, the Moose Lodge was in the process of amending it’s by laws to forbid Negroes from being guest.

So at the same time they were saying let us modify the decree so that we can admit Mr. Irvis as a guest, their by laws were being amended to say no Negroes can came in as guest let alone members.

We feel that the idea that he should then be allowed to come in as a guest to a modification decree does not go to heart of the problem.

It does not supply the type of redress that we think cuts through the problem of state participation or support for the discrimination of the Moose Lodge and that is why we opposed it.

Thurgood Marshall:

If I understand Mr. Wiener correctly, at no time did he ask to be a member?

Harry J. Rubin:

That is correct.

Thurgood Marshall:

Legally or otherwise?

Harry J. Rubin:

That is correct.

Thurgood Marshall:

And in this case is based not — this case it has never been tried or membership point raised?

Harry J. Rubin:

That is right.

We have never requested membership.

We would not request membership because we respect the argument that the Moose Lodge as a private club is entitled to select it’s own members.

Thurgood Marshall:

But can’t serve liquor?

Harry J. Rubin:

We are only asking that Pennsylvania’s liquor licensing participation be removed from whatever Moose Lodge wants to do.

There have been references made to the Bottle Club problem.

Like Mr. Wiener I would say in Pennsylvania that does not pose any issue of state involvement at all.

A person can take a bottle to another place, sit down with his friends and have a drink of liquor if he wishes.

But that is not the same thing as we have here and I — just so that there is no misunderstanding of what we have here, I trust the Court understands that in Pennsylvania liquor licenses are not just something freely available.

There is a quota system to the number of licenses that can be given.

There is local option which prevent licenses from being given out to certain places.

It has been stipulated in this case that the liquor license provides special benefits to the Moose Lodge because the Moose Lodge has stipulated that it would suffer damage in it’s membership and operations if it didn’t have this liquor license and that is why to go back to what I was saying before and to what Mr. Justice White raised before.

Lewis F. Powell, Jr.:

(Inaudible) to show the number of private club’s license to sell liquor in the state of Pennsylvania?

Harry J. Rubin:

No it does not Mr. Justice Powell.

Lewis F. Powell, Jr.:

Do you know?

Harry J. Rubin:

Off hand?

No I would have to say that it is in hundreds.

In the brief for the Commonwealth Attorney General, this is not in the record, it is in the Attorney General’s brief, there are 4238 clubs licensed under the Pennsylvania Liquor Code.

William H. Rehnquist:

Mr. Rubin, am I right in thinking some of your earlier comment about the proposed amendment to the by laws that at the time Mr. Irvis sought service in the Moose Club, he was not refused as a guest pursuant to any written provision of the bylaws?

Harry J. Rubin:

That is my understanding Mr. Justice Rehnquist that he was simply refused service and he was told he was refused service because he was a Negro.

There was nothing written in the bylaws that said guests could not be Negroes.

That came during the course of these proceedings.

Warren E. Burger:

I suppose you are aware that in some states the so called locker clubs are regulated under the same licensing authority as other liquor licenses?

Harry J. Rubin:

I would have to answer that Mr. Chief Justice by saying that I am not really aware of it and I am not sure whether we were talking locker clubs as one thing.

I think the reference in Mr. Wiener’s brief was to a bottle club.

I was thinking when I read that of someone who would live this house with a bottle in his hand, go to his club, meet with some few of his friends and have a drink.

To that extent I don’t know of any regulation, but I would not preclude that from being the case in other states.

Harry A. Blackmun:

Mr. Rubin I have one little problem of proof.

Are you satisfied that the record shows that Mr. Irvis came as a guest of a member?

The compliant as I read it does not so allege?

Now I realize the opinion below states this.

Harry J. Rubin:

Yes it clearly states that on page 32.

Harry A. Blackmun:

Paragraph 11 merely says that plaintiff entered the premises and requested service of food and beverage.

I find nothing there indicating he was accompanied by a member.

Harry J. Rubin:

I would have to look.

I know that the court’s opinion below is very clearly stated that point.

Harry A. Blackmun:

I know, but I am looking for proof.

Warren E. Burger:

You would say that the parties litigated the issues on that assumption?

Harry J. Rubin:

Oh yes there was no question about that Mr. Chief Justice.

That was a matter of public record I should say because it was in the newspapers at that time.

There was — no one had any question about that point.

I do want to finish the point I was making about whether or not this license is like water or like electricity.

Harry J. Rubin:

I would sum that up simply by saying that when you have the government providing or through the governmental process some thing that is being provided to everyone, you don’t have the same thing as you have with the liquor license in Pennsylvania.

As I mentioned Pennsylvania has a restriction on liquor licenses.

They aren’t freely available.

In addition to that, the liquor license can further certain special benefits as this record very clearly shows by the Moose Lodge’s own admissions.

It would have trouble maintaining it’s self according to it and it’s membership and it’s operations, if it didn’t have this liquor license.

Potter Stewart:

That would certainly be true if it didn’t have any heat or light too?

Harry J. Rubin:

That is true, but the heat or light is supplied to you, to me and to everyone else —

Potter Stewart:

In our case it’s supplied to a club that discriminates racially?

Harry J. Rubin:

That is correct, but we think the proper constitutional line is if the government is doing something on a special places, if there are some special benefit, not freely available to all and this is the case with the liquor license.

Byron R. White:

Whether freely available or not, liquor license —

Harry J. Rubin:

No, there are many places in Pennsylvania tpday where there are no license is available because the —

Byron R. White:

(Inaudible)

Harry J. Rubin:

Well, I can only go outside the record Mr. Justice White on that by telling you that any recent case of which I am familiar, when a new municipality elected to have a licenses, there would was such a rush for club licenses that everyone was trampled, so there seems to have no end to the desire for these restrictive licenses in Pennsylvania just like the fact that there are 4000 —

Byron R. White:

If you would be disqualify out of all the clubs seeking (Inaudible) you think it’s permissible to disqualify those clubs who discriminate?

Harry J. Rubin:

I would disqualify those who discriminate on grounds of race and I want to make it perfectly clear, I previously indicated in my answer to your question that there are certain clubs which discriminate in which racial discrimination may take place as a consequence of a nature of a discrimination and that makes discrimination.

It may or may not take place, but if that ethnic discrimination is reasonable in relation to the purposes of the club, we are satisfied that that is permissible and I don’t want to overlook in al candor something that is not mentioned in the brief of Moose Lodge and that is there are many clubs.

What I am saying is that there are many clubs in that list of Elks that the presents which you know in our opinion would not be precluded from getting a liquor license, but there are many clubs which are not in that list, the local social clubs which have no purpose in life except social, there is no basis for their discrimination except they don’t want Negroes, those clubs would be affected by this decision in Pennsylvania, there is no question about that.

Warren E. Burger:

What would you say about a club which, a club like Moose which served the person in the position of your client and then struck the host club member from membership, had no direct action with respect to the person served, but the conduit?

Harry J. Rubin:

There it is there is a case as I recall Barton case in this Court in which it would have — it would have stated that the white person who was affected by the discrimination practiced against his black brother would have a cost of action against his club, would have standing to raise that.

Warren E. Burger:

What if he did not raise it?

Harry J. Rubin:

Well, he has the right not to raise it as well as to raise it, but we would have indicated that Mr. Ingleheart who happened to be the white member who took Mr. Irvis to the club would have been able to bring a case under those circumstances.

Warren E. Burger:

That is not the direct issue?

Harry J. Rubin:

That is not the direct issue here.

Warren E. Burger:

So you are indicating I take it that that kind of a sanction against the members for bringing inadmissible guests would be something that the guest in the position of your plant could not reach, is that what you are suggesting?

Harry J. Rubin:

I don’t think that Mr. Irvis is harmed by a sanction against the guest because there was no sanction.

If in fact the Moose Lodge (Voice Overlap)

Warren E. Burger:

Well, you say — isn’t he harmed in the sense that this fellow can’t take him back to the Moose Lodge again?

Harry J. Rubin:

That is true and I think that is Mr. Ingleheart, that would be his right of action to raise it, just like I think, yes sir Mr. Justice Powell?

Lewis F. Powell, Jr.:

I’d like to go back to discussion merely as to the distinction you draw between race and sex as a basis for discrimination and I have in mind the numerous court decisions which do not allow states to discriminate on the basis of sex with respect to admission to state institutions, schools and the like.

Is it your position that a club could discriminate, a men’s only club or women’s only club.

Harry J. Rubin:

Well, it really is my position that we are slowly reaching the point where that will not be allowed.

I do not know if the decisions of this Court have yet reached that point, but it would seem to me that if the purpose of the club has nothing to do with maleness to be consistent with my position with respect to the reasons for the clubs’ existence, if it has nothing to with maleness as such and there is no reasonable ground for the exclusion, then the club would have to be put to the test of admitting the female or giving up its license, but it would not be ordered out of hand to admit the female; that is the basis for the distinction, we are making here between a private club and a public organization.

Thurgood Marshall:

But who is — what does male sona bath have a reason.? [Laughter]

Harry J. Rubin:

I just going to have to avoid that question

I suppose the reasons for it in one culture is different from the reasons in another. I understand in the orient they don’t find those distinctions that we do.

Thurgood Marshall:

(Inaudible) large number of club license affected that they are much cheaper?

Harry J. Rubin:

The License it self is not expensive.

No license is expensive itself as Pennsylvania Mr. Justice marshall.

Thurgood Marshall:

What is the difference between the regular license and the —

Harry J. Rubin:

The differences are only in the fact that basically the club has more freedom in the use of it’s license.

It can stay open on Sundays it can stay open on election day, stay open on Sunday is great time now Pennsylvania were to open else where but there is no other great distinction between the licenses.

Thurgood Marshall:

But that is the value that it can stay on longer.

Harry J. Rubin:

That’s one of the values certainly one of the values.

We think that what we are dealing here, if it please the Court with is a matter of great concern to the country.

It’s a matter of whether of not state supported, state aided discriminations should be permitted.

A member of this Court I think has stated it as well as anyone.

The state action doctrine reflects the profound judgment that denials of equal treatment and particularly denials on account of race or color are singularly grey when government has or shares responsibility for them.

Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment in the setting of worthy norms and goals for social conduct.

Therefore something is uniquely amiss in a society where the government, the authoritative article of community values involves itself in racial discrimination.

We see this case as a case which Pennsylvania by granting this license to this private club and to other racially discriminating private clubs has involved itself in the racial discrimination of the private club and we urge this Court to affirm the judgment of the district court.

Warren E. Burger:

Mr. Rubin, how does the state share in terms of that language, share in the discrimination?

Harry J. Rubin:

The state would share Mr. Chief Justice in the same way that the state would have shared in Barton.

It helped to make possible the existence and the actions of the organization which does the discriminating.

Warren E. Burger:

Well, suppose they give up their liquor license and continue to do just what they were doing?

Harry J. Rubin:

That is perfectly alright.

The state with in not share in the discrimination and that is all we are seeking.

Warren E. Burger:

Even they refuse to serve him a cup of coffee?

Harry J. Rubin:

That is correct.

We see no, no, nothing wrong in the discrimination.

It is in the state participation.

Harry J. Rubin:

Thank you.

Warren E. Burger:

Thank you Mr. Rubin.

Mr. Wiener you have three minutes left.

Frederick Bernays Wiener:

Mr. Chief Justice, yes, Your Honor.

I want to address my self to worthy norms.

The recognition of the right of privacy has nothing to do with the worthiness or unworthiness of the associational rights sought to be protected.

US against Roble, 389 US held that Roble’s constitutional right of association in this instance to be a member of the communist party prevail over the congressional probation of his being employed in the defense panel.

I take that decision did not mean that the Court was endorsing the norms of the communist party, much less saying that they were worthy norms and the same thing here.

Whatever the Moose restrictions are worthy or otherwise is not my concern.

It is their’s.

They have the right to privacy and I want to emphasis that when they say Caucasians only, it isn’t any worst than saying any one of 20 European nationalities because there are aren’t black Swiss, there are aren’t black Swedes, there are aren’t black English and except in the pejorative sense there are aren’t black Irish.

Thurgood Marshall:

Mr. Wiener what are the Caucasians?

I guess it’s (Voice Overlap) to decide that.

Frederick Bernays Wiener:

It is not restrictive to someone who hails from the region of the Caucasus Mountains and it’s seems to me that insofar as there seem to be conflicting interests involved, Congress has drawn the line in two provisions of the Civil Rights Act and it is our view if you are going to respect.

Section 64 A?

Frederick Bernays Wiener:

Yes, Your Honor.

203E on private clubs, 504A on limiting the Civil Rights Commission and it seems to me that if you are going to support the congressional determination and the enforcement of the both civil war amendments to permit to illiterates to vote because that is a congressional determination, I think you should give at least equal weight to the congressional determination that private clubs and fraternal organizations are beyond the reach of government.

Warren E. Burger:

Thank you Mr. Wiener, thank you Mr. Rubin.

The case is submitted.