B.P.O.E. LODGE NO. 2043 OF BRUNSWICK v. INGRAHAM, 411 U.S. 924 (1973)
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U.S. Supreme Court
B.P.O.E. LODGE NO. 2043 OF BRUNSWICK v. INGRAHAM , 411 U.S. 924 (1973)411 U.S. 924
B. P. O. E. LODGE NO. 2043 OF
BRUNSWICK et al. v. Keith H. INGRAHAM et al.
No. 72-1025.
Supreme Court of the United States
April 16, 1973 Rehearing Denied May 21, 1973.
See 412 U.S. 913.
The appeal is dismissed for want of a substantial federal question.
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice BLACKMUN concur, dissenting.
Appellants, 15 Maine lodges of the Benevolent and Protective Order of Elks, brought suit against the State Liquor Commission of Maine to enjoin it from denying them liquor licenses under 1301-A of Tit. 17 of the Maine Rev.Stat. Ann.,1 which reads:
'No person, firm or corporation
holding a license under the State of Maine or any of its
subdivisions for the dispensing of food, liquor or for any service
or being a State of Maine corporation or a corporation authorized
to do business in the State shall withhold membership, its
facilities or services to any person on account of race, religion
or national origin, except such organizations which are oriented to
a particular religion or which are ethnic in character.'
The Elks require a person to be a 'white male citizen' to be a member. 2 The Commission denied licenses to the 15 subordinate lodges pursuant to 55(8) of Tit. 28
of the Maine Rev.Stat.Ann., which provides that the Commission, in issuing or renewing licenses, 'shall given consideration to the character of any applicant, the location of the place of business and the manner in which it has been operated.' The Commission stated that the 'whites' only limitation of the Elks Constitution established 'bad moral character' of the subordinate lodges. The Supreme Judicial Court, reversing a decision of the superior court which had granted appellants a permanent injunction, upheld the Commission's action. The court stated:
'We find is unnecessary to predicate
our decision on the specific basis assigned by the Commission to
support its actions-i. e., that [ appellants] had 'bad moral
character.' We conclude, rather, that the Commission's ultimate
denial of license renewals was justified under the avowed public
policy of the State of Maine, as delineated in the provisions of 17
M.R.S.A. 1301-A, and the authority afforded the Commission under
the statute conjoined with the provisions of 28 M.R. S.A. 55(8)
allowing the Commission to take into account the 'character' of the
plaintiffs (independently of 'morality' considerations) and the
'manner' by which they have 'operated." ( Emphasis added.)
In concluding that the Commission was justified in denying the licenses because the lodges had violated the State's public policy embodied in 1301-A, the court rejected appellants contention, inter alia, that the statute violates the Equal Protection Clause of the Fourteenth Amendment.
Appellants sought a stay pending appeal to this Court, and the
state court denied it. A similar application to this Court,
eventually referred to the Conference, was [411 U.S. 924 , 926]
Opinions
No. 72-1025. Supreme Court of the United States April 16, 1973 Rehearing Denied May 21, 1973. See 412 U.S. 913. The appeal is dismissed for want of a substantial federal question. Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice BLACKMUN concur, dissenting. Appellants, 15 Maine lodges of the Benevolent and Protective Order of Elks, brought suit against the State Liquor Commission of Maine to enjoin it from denying them liquor licenses under 1301-A of Tit. 17 of the Maine Rev.Stat. Ann.,1 which reads:
U.S. Supreme Court
B.P.O.E. LODGE NO. 2043 OF BRUNSWICK v. INGRAHAM , 411 U.S. 924 (1973) 411 U.S. 924 B. P. O. E. LODGE NO. 2043 OF BRUNSWICK et al. v. Keith H. INGRAHAM et al.No. 72-1025. Supreme Court of the United States April 16, 1973 Rehearing Denied May 21, 1973. See 412 U.S. 913. The appeal is dismissed for want of a substantial federal question. Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice BLACKMUN concur, dissenting. Appellants, 15 Maine lodges of the Benevolent and Protective Order of Elks, brought suit against the State Liquor Commission of Maine to enjoin it from denying them liquor licenses under 1301-A of Tit. 17 of the Maine Rev.Stat. Ann.,1 which reads:
'No person, firm or corporation
holding a license under the State of Maine or any of its
subdivisions for the dispensing of food, liquor or for any service
or being a State of Maine corporation or a corporation authorized
to do business in the State shall withhold membership, its
facilities or services to any person on account of race, religion
or national origin, except such organizations which are oriented to
a particular religion or which are ethnic in character.'
The Elks require a person to be a 'white male citizen' to be a
member. 2 The Commission denied licenses to the 15 subordinate
lodges pursuant to 55(8) of Tit. 28
Page 411 U.S.
924 , 925
of the Maine Rev.Stat.Ann., which provides that the Commission,
in issuing or renewing licenses, 'shall given consideration to the
character of any applicant, the location of the place of business
and the manner in which it has been operated.' The Commission
stated that the 'whites' only limitation of the Elks Constitution
established 'bad moral character' of the subordinate lodges. The
Supreme Judicial Court, reversing a decision of the superior court
which had granted appellants a permanent injunction, upheld the
Commission's action. The court stated:
'We find is unnecessary to predicate
our decision on the specific basis assigned by the Commission to
support its actions-i. e., that [ appellants] had 'bad moral
character.' We conclude, rather, that the Commission's ultimate
denial of license renewals was justified under the avowed public
policy of the State of Maine, as delineated in the provisions of 17
M.R.S.A. 1301-A, and the authority afforded the Commission under
the statute conjoined with the provisions of 28 M.R. S.A. 55(8)
allowing the Commission to take into account the 'character' of the
plaintiffs (independently of 'morality' considerations) and the
'manner' by which they have 'operated." ( Emphasis added.)
In concluding that the Commission was justified in denying the
licenses because the lodges had violated the State's public policy
embodied in 1301-A, the court rejected appellants contention, inter
alia, that the statute violates the Equal Protection Clause of the
Fourteenth Amendment.
Appellants sought a stay pending appeal to this Court, and the
state court denied it. A similar application to this Court,
eventually referred to the Conference, was
Page 411 U.S.
924 , 926
granted. The Court now dismisses the appeal for want of a
substantial federal question. I cannot agree with this
disposition.
The Maine court specifically considered appellants' claim that
the exception for 'organizations which are oriented to a particular
religion or which are ethnic in character' violates the Equal
Protection Clause because it permits some associations to have
liquor licenses notwithstanding their discriminatory membership
policies. The court said:
'The fallacy of the argument is that
it fails to recognize the difference between: (1) restrictive
membership discriminations which are arbitrary, because without
rational relationship to the fostering of the legitimate purposes
for which the association has come into being, and (2) those which
rationally promote such lawfully cognizable objectives. . . . Since
such organizations are formed to promote lawful objectives which
their members share as common interests by virtue of their
religious or ethnic identities, their confining of membership to
persons who bear the same religious or ethnic identity is a
rational classification. It thus lacks the arbitrariness by which
discrimination becomes invidious and which is outlawed by the
'equal protection of the laws' clause of the Fourteenth Amendment
of the Constitution of the United States when it is the result of
State action.
'The exception as here recognized by
the State of Maine is, therefore, consistent with the federal
Fourteenth Amendment.'
Webster's New International Dictionary tells us that 'ethnic'
means: 'Relating to community of physical and mental traits in
races, or designating groups of races of mankind discriminated on
the basis of common
Page 411 U.S.
924 , 927
customs and characters.' The 'ethnic' exception in the Act
therefore would seem to allow a Chinese, Japanese, Malaysian, or
African group to practice discrimination in their lodges and still
get liquor licenses but not to allow the 'white' the same
privilege. As stated long ago in Strauder v. West Virginia,
100 U.S.
303, 308:
'If in those States where the colored
people constitute a majority of the entire population a law should
be enacted excluding all white men from jury service, thus denying
to them the privilege of participating equally with the blacks in
the administration of justice, we apprehend no one would be heard
to claim that it would not be a denial to white men of the equal
protection of the laws. Nor if a law should be passed excluding all
naturalized Celtic Irishmen, would there be any doubt of its
inconsistency with the spirit of the Amendment. The very fact that
colored people are singled out and expressly denied by a statute
all right to participate in the administration of the law, as
jurors, because of their color, though they are citizens and may be
in other respects fully qualified, is practically a brand upon
them, affixed by the law; an assertion of their inferiority, and a
stimulant to that race prejudice which is an impediment to securing
to individuals of the race that equal justice which the law aims to
secure to all others.'
We repeated the same thought in Hernandez v. Texas, 347 U.S.
475, 478, in speaking of discrimination against persons of
Mexican descent:
'Throughout our history differences
in race and color have defined easily identifiable groups which
have at times required the aid of the courts in securing equal
treatment under the laws. But community prejudices are not static,
and from time to time
Page 411 U.S.
924 , 928
other differences from the community norm may define other
groups which need the same protection. Whether such a group exists
within a community is a question of fact. When the existence of a
distinct class is demonstrated, and it is further shown that the
laws, as written or as applied, single out that class for different
treatment not based on some reasonable classification, the
guarantees of the Constitution have been violated. The Fourteenth
Amendment is not directed solely against discrimination due to a
'two-class theory'- that is, based upon differences between 'white'
and Negro.'
That classifications based upon race3 or nationality4 are
'suspect' and therefore demand close scrutiny is well established.
See San Antonio Ind. School Dist. v. Rodriquez, 411 U.S. 1, 104-105, 36 L.
Ed. 2d 16 (Marshall, J., dissenting). I do not question the State's
beneficient motives in attempting to eliminate the scourge of
discrimination by whites against non-whites solely on the basis of
color, but I cannot subscribe to the view that the State may
legislate against this form of invidious discrimination and, at the
same time, sanction and insulate another, albeit less invidious in
the State's eyes. Since the Maine statute and its application by
the Supreme Judicial Court raise, in my mind, a substantial
question under the Equal Protection Clause, I would note probable
jurisdiction.
Footnotes
Footnote 1 Section 1301-A
was added to Tit. 17 in 1969. C. 371, Me.L.1969.
Footnote 2 Section 144 of
the Elks Stat.Ann. (1972) provides: 'No person shall be accepted as
a member of this Order unless he be a white citizen of the United
States of America, of sound mind and body, of good character, not
under the age of Twenty-one years, and a believer in God. No person
shall be accepted as a member of this Order who is directly or
indirectly a member of or in any way connected or affiliated with
the Communist Party, or who believes or advocates the overthrow of
our Government by force.' The By-Laws of the National Order
apparently are incorporated in the by-laws of each subordinate
lodge.
Footnote 3 See, i. g.,
McLaughlin v. Florida, 379 U.S. 184, 191-192;
Loving v. Virginia, 388 U.S.
1, 9.
Footnote 4 See Oyama v.
California, 332 U.S.
633, 644-646; Korematsu v. United States, 323 U.S.
214, 216.
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