The Volokh Conspiracy

Jonathan Adler posts on the extremely weak class action lawsuit claiming that ladies nights at private night clubs violate the 14th Amendment. Hopefully, the district court will dismiss this seriously misguided lawsuit. Attorney Roy Den Hollender's lawsuit is flawed because the Fourteenth Amendment clearly does not ban this kind of "sex discrimination" by private parties and because certification of the class would violate the rules governing class action lawsuits.

First, the constitutional point. I will cover the class action issue in a follow-up post.

The Equal Protection Clause of the Fourteenth Amendment clearly says that a "state" may not "deny to any person within its jurisdiction the equal protection of the laws." The Amendment does not ban discrimination by private parties, only that undertaken by states. Over the years, courts have sometimes ruled that private racial or sex discrimination can be imputed to states in cases where the private actor is actually an agent of the government or otherwise closely entertwined with it. However, Hollender is claiming that night club owners who institute ladies' nights are state actors merely because they are regulated and licensed by the government. This theory was specifically rejected by the Supreme Court in the Civil Rights Cases of 1883, which held that the Fourteenth Amendment did not give Congress the power to regulate common carriers, "places of public accomodation" (e.g. - hotels, restaurants) despite the fact that most such businesses were highly regulated often required to have government licenses. In his dissent, Justice John Marshall Harlan strongly emphasized the regulated and licensed nature of the businesses in question, a consideration that failed to sway the majority. Although criticized by many academics, the Civil Rights Cases remain binding precedent, and were reaffirmed by the Court in United States v. Morrison in 2000.

Moreover, there is good reason to believe that The Civil Rights Cases majority was right to hold that licensing and regulation alone do not equate to state action. Almost all important private activities are licensed or regulated to some extent. If Hollender's argument prevails, all would be subject to the same restrictions on ethnic, religious, and sex discrimination as are imposed by the Fourteenth Amendment on government. For example, marriage requires a state-issued license. On Hollender's theory, therefore, the Constitution would forbid individuals from engaging in racial, ethnic, or religious discrimination in deciding whom to marry, since the Equal Protection Clause surely forbids such discrimination by government. If the state bans Jews from marrying non-Jews, that is a clear violation of the Fourteenth Amendment under modern doctrine. Yet if licensing is enough to turn a private action into state action, then a Jew who marries a fellow Jew after rejecting gentile suitors solely on religious grounds would be a state actor engaging in unconstitutional discrimination.

It may be that some extreme forms of licensing or regulation do involve the state so pervasively in private activity as to convert that activity into state action for Fourteenth Amendment purposes. But that cannot be true for all types of regulation and licensing, as Hollender's theory requires.

Hollender is therefore right to foresee an "uphill" battle for his suit. He is, wrong, however to attribute his likely difficulties to the fact that "he is arguing on behalf of men and not women, whom he says the U.S. Supreme Court has given 'preferential treatment for past invidious, economic discrimination.'"

In reality, many of the Supreme Court's most important Equal Protection Clause precedents striking down laws that discriminate on the basis of sex involved discrimination against men. These include landmark decisions such as Craig v. Boren, the 1976 case that instituted the current "intermediate scrutiny" standard for government sex discrimination, and Mississippi University for Women v. Hogan (1982), an important case that ruled that an all-female state university was unconstitutional.

In the area of race discrimination, the Supreme Court has indeed given somewhat looser constitutional scrutiny to programs that benefit racial minorities as opposed to whites. That is not, however, true of the Court's constitutional scrutiny of programs that discriminate in favor of women relative to those that benefit men (the Courts statutory consideration of affirmative action for women under Title VII of the Civil Rights Act of 1964 is a different matter).

UPDATE: As commenter and lawprof Eric Muller points out, the Supreme Court's 1972 Moose Lodge (which held that a Moose Lodge was not a state actor merely because it had a state liquor license) decision probably undercuts Hollender's position even more clearly than the Civil Rights Cases do.