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

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 [411 U.S. 924 , 926]

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