# Moose Lodge No. 107 v. Irvis > Supreme Court of the United States · June 12, 1972 · 407 U.S. 163 URL: https://www.frixlaw.com/law-library/cases/9424940 ## Case - **Full name:** MOOSE LODGE NO. 107 v. IRVIS Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 12, 1972 - **Citations:** 407 U.S. 163; 92 S. Ct. 1965; 32 L. Ed. 2d 627; 1972 U.S. LEXIS 44 - **Precedential status:** Published - **Opinion:** Dissent by Douglas - **Judges:** Rehnquist, Burger, Stewart, White, Blackmun, Powell, Douglas, Marshall, Jjoined, Brennan - **Cited by:** 968 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9424940 ## How later opinions describe it (automated extraction) - holding that a private club, which had refused to admit African-American members, was not a state actor because, although the club was subject to a state’s “detailed” regulation of liquor licenses, the state regulation did not “foster or encourage racial discrimination” - holding that a plaintiff had no standing to challenge a club's racially discriminatory membership policies because plaintiff had not applied for membership - holding that plaintiff lacks standing to challenge club’s member ship policies because “he never sought to become a member” - explaining the “dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, however discriminatory or wrongful, against which that clause erects no shield” (cleaned up) - holding that the plaintiff lacked standing to challenge 4 an organization’s discriminatory membership policies because he never applied for 5 membership ## Opinion text Mr. Justice Douglas, with whom Mr. Justice Marshall joins, dissenting. My view of the First Amendment and the related guarantees of the Bill of .Rights is that they create a zone of privacy which precludes government from interfering with private clubs or groups. 1 The associational *180 rights which our system honors permit all white, all black, all brown, and all yellow clubs' to be formed.. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates -must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians' to join or-eóme as guests is constitutionally irrelevant, as is the decision of the Black Muslims to admit to their services only members of their race. The problem is different, however, where the public domain is concerned. I have indicated in Garner v. Louisiana, 368 U. S. 167 , and Lombard v. Louisiana, 373 U. S. 267 , that where restaurants or other facilities serving the public are concerned and licqn|és are obtained from the State for operating the business, the “public” may not be defined by the proprietor to include only people of his choice, nor may a state or municipal service be granted only to-some. Evans v. Newton, 382 U. S. 296, 298-299 . Those cases are hot precisely apposite, however; for a private club, by definition, is not in the public domain. And the fact, that a private club gets some kind of permit from the State or municipality does not make it ipso facto a public enterprise or' undertaking, any more than the grant to a householder of a permit to operate an incinerator puts the householder in the public domain. We must, therefore, examine whether there are special circumstances involved in the Pennsylvania scheme which differentiate the liquor license possessed by Moose Lodge from .the incinerator permit. *181 Pennsylvania has a state store system of alcohol distribution. Resale is permitted by hotels, restaurants, and private clubs which all must obtain licenses from the Liquor Control Board. The scheme of regulation is complete and pervasive; and the state courts have sustained many restrictions on the licensees. • See Tahiti Bar Inc. Liquor License Case, 395 Pa. 355 , 150 A. 2d 112 . Once a license is issued the licensee must comply with many detailed requirements or risk suspension or revocation of the license. Among these requirements is Regulation § 113.09 which says: “Every club licensee shall adhere to all. of the provisions of its Constitution and By-laws.” This regulation means, as applied to Moose Lodge, that it must adhere to the racially discriminatory provision of the Constitution of its Supreme Lodge that “[t]he membership of lodges shall be composed of male persons of the Caucasian or White race above the age of twenty-one years, and not married to someone of any other than the Caucasian or White race, who are óf good moral character, physically and mentally normal, who shall profess a ber lief in a Supreme Being.” It is argued that this regulation only aims at the prevention of subterfuge and at enforcing Pennsylvania’s differentiation between places of public accommodation and bona fide private clubs. It is also argued that the regulation only gives effect to the constitutionally protected rights of privacy and of association. But I cannot so read the regulation. While those other purposes are embraced in it, so is the restrictive membership clause. And we have held that “a State is responsible for-the discriminatory act of a private party when the State, by its law,- has compelled the act.”. Adickes v. Kress & Co., 398 U. S. 144, 170 . See Peterson v. City of Greenville, 373 U. S. 244, 248 . It is irrelevant whether the law is statutory, or an administrative regulation. Robinson v. Florida, 378 U. S. 153, 156 . And it is irrelevant whether the discriminatory act was instigated by the regulation, *182 or was independent of it. Peterson v. City of Green ville, supra. The result, as I see it, is the same as though Pennsylvania had put into its liquor licenses a provision that the license may not be used to dispense liquor to blacks, browns, yellows — or atheists or agnostics. Regulation § 113.09 is thus an invidious form of state action. Were this regulation the only infirmity in Pennsylvania’s licensing scheme, ,1 would perhaps agree with the majority that the appropriate relief would be a decree enjoining its enforcement. But there is another flaw in the scheme not so easily cured. Liquor licenses in Pennsylvania, unlike driver’s licenses, or marriage licenses, are not freely available to those who meet racially neutral qualifications. There is a complex quota system, which the majority accurately describes. Ante, at 176. What the majority neglects to say is that the quota for Harrisburg, where Moose Lodge No. 107 is located, has been full for many years. 2 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. 3 Access by blacks to places that *183 serve liquor is further limited by the fact that the state quota is filled. A group desiring to form a nóndiscrim-inatory club which would serve blacks must purchase a license held by an existing club, which can' exact a monopoly price for the transfer.' The availability of such a license is speculative at best, however, for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed to survive. Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination. As the first Justice Harlan, dissenting in the Civil Rights Cases, 109 U. S. 3, 59 , said: “I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has 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. . . . What I affirm is that no State, nor the officers of any State, nor any corporation or individual' wielding power under State authority for the public benefit or the public .convenience, can, consistently . . . with the freedom established by the fundamental law . . . discriminate against freemen or citizens, in those rights, because of their race . . . .” The regulation governing this liquor license has in it that precise infirmity. 4 I would affirm the judgmént below. *184 Mr. 'Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. 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 *185 are only incidentally revenue measures; they are primarily pervasive regulatory schemes under which the State dictates and continually supervises virtually every detail of the operation of the licensee’s business. Very few, if any, other licensed businesses experience such complete state involvement. Yet the Court holds that such involvement, does not. constitute “state, action” making the Lodge’s refusal to serve a guest liquor solely because of- his race a violation of the Fourteenth Amendment. The vital flaw in the Court’s reasoning is its complete disregard of the fundamental value underlying the “state action” concept. That value is discussed in my separate opinion in Adickes v. Kress & Co,, 398 U. S. 144, 190-191 (1970): “The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave 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, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination. Accordingly, . . . the *186 cases that have come before us [in which] this Court has condemned significant state involvement in racial discrimination, however subtle- and indirect it may have been and whatever form it may have taken [,] . . . represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.” Plainly, the State of Pennsylvania’s liquor regulations intertwine the State with the operation of the Lodge bar in a “significant way [and] lend [the State’s] authority to the sordid business of racial discrimination.” The opinion of the late Circuit Judge Freedman, for the three-judge District Court, most persuasively demonstrates the “state action” present in this case: “We believe the decisive factor is the uniqueness and the all-pervasiveness of the regulation by the Commonwealth of Pennsylvania, of the dispensing-of liquor under licenses granted by the state. The. regulation inherent in the grant of a state liquor license is so different in nature and extent from the ordinary licenses issued by the- state that it is different in quality. “It had always 'been held- in Pennsylvania, even prior to the Eighteenth Amendment, that the exercise of the power to grant licenses for the sale of intoxicating liquor was an exercise of the highest governmental power, one in which the state had the fullest freedom inhering in the police power ■ of the sovereign. With the Eighteenth Amendment which went into effect in 1919 the right to deal in' intoxicating liquor was extinguished. ■ The era of Prohibition, ended with the adoption in 1933 of -the Twenty-first Amendment, which has left to each state the absolute power to prohibit the sale, *187 possession or use of intoxicating liquor, and in general to deal otherwise with it as it sees fit. “Pennsylvania has exercised this power with the fullest measure of state authority. Under the Pennsylvania plan the state monopolizes the sale of liquor through its so-called state stores, operated by the state. Resale of liquor is permitted by hotels, restaurants and private clubs, which must obtain licenses from the Liquor Control Board, authorizing them ‘to purchase liquor from a Pennsylvania Liquor Store [at a discount] and keep on the premises such liquor and, subject to the provisions of this Act and the regulations' made thereunder to sell the same and also malt or brewed beverages to guests, patrons or members for consumption on the hotel, restaurant or club premises.’ “The issuance or refusal of a license to a club is in the discretion of the Liquor Control Board. In order to secure one of the limited number of licenses which are available in each municipality an applicant must comply .with extensive requirements, which in general are applicable to commercial and club licenses equally. The applicant must make such physical alterations in his premises as the Board may require and, if a club, must file a list of the names and addresses of its. members and employees, together with such other information as the Board may require. He must conform his over: all financial arrangements to the statute’s exacting requirements and keep extensive records. He may not permit ‘persons of ill repute’ to frequent his premises nor allow thereon at any time any ‘lewd, immoral or improper entertainment.’ He must grant the Board and its agents, the right to inspect .the licensed premises at any time when patrons, guests or members are present. It is ohly on compliance *188 with these and numerous other requirements' and if the Board is satisfied that the applicant is ‘a person of good repute’ and that the license will not be ‘detrimental to the welfare, health, peace and morals of the, inhabitants of the neighborhood,’ that the license may issue. “Once a license has been issued the licensee must comply with many detailed requirements or risk its suspension or revocation. He must in any event have it renewed periodically. Liquor licenses have been employed in Pennsylvania to regulate a wide variety of moral conduct, such as the presence and activities of homosexuals, performance by a topless dancer, lewd dancing, swearing, being noisy or disorderly. So broad is the state’s power that the courts of Pénnsylvania have upheld its restriction of freedom of expression of a licensee on the ground that in doing so it merely exercises its plenary power to attach conditions to the privilege of dispensing liquor which a .licensee holds at the sufferance of the state. “These are but some of the many reported illustrations of the use which thé state has made of its unrestricted power to regulate , and even to deny the right to sell, transport or possess intoxicating liquor. It would be difficult to find a more pervasive interaction of state authority with personal conduct. The holder of a liquor license from the Commonwealth of Pennsylvania therefore is not like other licensees who conduct their enterprises at arms-length from the state,- even though they may have been required to comply with certain conditions, such as zoning or building requirements, in order to obtain or continue to enjoy the license which authorizes them to engage in their business. The state’s concern in such cases is minimal and *189 once the conditions it has exacted are met the customary operations of the enterprise are free from further encroachment. Here by contrast beyond the act of licensing is the continuing and pervasive regulation of the1 licensees by the state to an unparalleled extent. The unique , power’which the. state enjoyá in this area, which has put it in the business of operating state liquor stores and in the role of licensing clubs, has been exercised in a manner whiéh reaches intimately and deeply into the operation of the licensees. ’ “In addition to this, the regulations of the Liquor Control Board adopted pursuant to the statute affirmatively require that 'every club licensee shall adhere to all the provisions of its constitution and by-laws.’. As applied to the present case this regulation requires the local Lodge, to adhere to the constitution of the Supreme Lodge and thus ,to exclude non-Caucasians from membership in its licensed club. The state therefore, has been far from neutral. It has declared that the local Lodge must adhere to the discriminatory provision under penalty - of loss of its license. It would be difficult in any event to consider the state neutral in an area which is so permeated with state regulation: and control, but any vestigé of neutrality disappears when the state’s regulation specifically exacts , compliance by the licensee with an approved provision for dis-r crimination, especially where the exaction holds the threat of loss of the license. “However it may deal with its licensees in exercising its great and untrammeled power over liquor traffic, the state may not discriminate against others or disregard the operation of the Equal Protection Clause of the Fourteenth Amendment as it'affects personal rights. Here the state has used, its great *190 power to license the liquor traffic in a manner which has no relation to the traffic in liquor itself but instead permits it to be exploited in the pursuit of a discriminatory practice.” 318 F. Supp. 1246, 12481250 (MD Pa. 1970). This is thus a case requiring application -of the principle that until today has governed our determinations of the existence of “state action”: “Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur.” Adickes v. Kress & Co., 398 U. S., at 202 (separate opinion of Brennan, J.). See, e. g., Peterson v. City of Greenville, 373 U. S. 244 (1963); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); Evans v. Newton, 382 U. S. 296 (1966) ; Hunter v. Erickson, 393 U. S. 385 (1969); Lombard v. Louisiana, 373 U. S. 267 (1963); Reitman v. Mulkey, 387 U. S. 369 (1967); Robinson v. Florida, 378 U. S. 153 (1964); McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151 (1914). I therefore dissent and would affirm the final decree entered by the District Court. It has been stipulated that Moose Lodge No. 107 '‘is, in all respects, private in nature and does not appear to have any public characteristics.” App. 23. The cause below was tried solely on the theory that granting a Pennsylvania liquor license to a club assumed to be purely private was sufficient state involvement to trigger the Equal Protection Clause. There was no occasion to consider the *180 question whether, perhaps because of a role as a center of community activity, Moose Lodge No. 107 was in fact “private” for equal protection purposes. The decision today, therefore, leaves this question open. See Comment, Current Developments in State Action and Equal Protection of the Law, 4 Gonzaga L. Rev. 233, 271-286. Indeed, the quota is more than full, as a result of a grandfather clause in the law limiting licenses to one per 1,500 inhabitants. Act No, 702 of Dec. 17, 1959, § 2, There are presently 115 licenses in effect in Harrisburg, and based on 1970 census figures, the quota would be 45. Hotels and restaurants may serve liquor between 7 a. m. and 2 a. m. the next day, Monday through Saturday. On Sunday, such licenses are restricted to sales between 12 p. m. and 2 a. m., and between 1 p. m. and 10 p. m. Pennsylvania Liquor Code, § 406 (a). Thus, such licensees may serve a total of 123 hours per week. Club licensees, however, are permitted to sell liquor to members and ' guests from 7 a. m. to 3 a. m, the next day, seven days a week. Ibid. The total hours of sale permitted club licensees are 140, 17 more than are permitted hotels and restaurants. (There is an *183 additional restriction on election-day sales as to which only club licensees are exempt. Ibid.) The majority asserts that appellee Irvis had “standing” only to challenge Moose Lodge’s guest-service practices, not its membership policies, on the theory that his “injury . . . stemmed, not from the lodge’s membership requirements, but from its policies with *184 respect to the serving of guests of members.” Ante, at 166. I submit that appellee’s standing is not so confined. A litigant has standing, for purposes of the Art. Ill “case” or “controversy” requirement, if he “alleges, that the challenged action has caused him injury in fact, economic or ptherwise.” Association of Data Processing Service Organizations v. Camp, 397 U. S. 150, 152 . When Moose Lodge refused service to appellee Irvis solely because of his race, it imposed upon him a special disability apart from that suffered by the population at large. If this discrimination is chargeable to the State, Irvis has standing, not only to challenge. Moose Lodge’s guest policies — the immediate cause of the harm — but also to challenge the state scheme which authorized these policies. For an individual “subjected by statute to special disabilities necessarily has . . : a substantial, immediate, and "real interest in the validity of the statute which imposes the disability.” Evers v. Dwyer, 358 U. S. 202, 204 . Moreover, once called into question, all discrimination authorized by the scheme is at issue. Just as a federal eourt may order an entire school desegregated upon the petition of a litigant representing only the fifth grade, so could the court below cure thé invidious •discrimination it found to exist in Pennsylvania’s liquor licensing scheme upon the petition of a litigant injured only by one aspect of that discrimination. The root evil was that Irvis was discriminated against with the blessing of the. State, not that he was discriminated against qua “guest” or “member.” In my view, moreover, a black Pennsylvanian suffers cognizable injury when the State supports and encourages the maintenance of a system of segregated fraternal organizations, whether or not he himself had sought membership in or had been refused service by such an orgánization, just as a black Pennsylvanian would suffer cognizable injury if the State were to enforce a segregated bus system, whether or not he had ever ridden or ever intended to ride on such a bus. Cf. Evers v. Dwyer, supra. American culture and history have been so plagued with racism and discrimination that it is clear beyond doubt that in such circumstances blacks suffer “injury in fact.” It “is practically a brand upon them, affixed by the law, *185 an assertion of. their inferiority, and a stimulant to . . . race prejudice . . . Strauder v. West Virginia, 100 U. S. 303, 308 . Their stake is analogous to the “spiritual stake” in First Amendment values which we have held may give standing to raise claims under the Establishment Clause and Free Exercise Clause. See Flast v. Cohen, 392 U. S. 83 . Thus, whether state action be found in Regulation § 113.09, in Pennsylvania’s creation of a monopoly which operates to restrict access to places in which blacks may be served liquor, or both, appellee Irvis has standing to challenge all aspects of the discriminatory ' scheme. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9424940. Public record. Not legal advice.