Mich.Stat.Ann. (Cum.Supp. 1947) § 18.990(1), which in effect
forbids any female to act as a bartender unless she be "the wife or
daughter of the male owner" of a licensed liquor establishment,
does not violate the Equal Protection Clause of the Fourteenth
Amendment. Pp.
335 U. S.
465-467.
(a) The classification which Michigan has made as between wives
and daughters of owners of liquor establishments and wives and
daughters of nonowners is not without a reasonable basis. Pp.
335 U. S.
465-467.
(b) Nor is the statute rendered unconstitutional because
Michigan allows women to serve as waitresses where liquor is
dispensed. P.
335 U. S.
467.
74 F.
Supp. 735 affirmed.
A three-judge federal district court denied an injunction to
restrain enforcement of Mich.Stat.Ann. (Cum.Supp. 1947) 18.990(1),
in effect forbidding any female to act as a bartender unless she be
"the wife or daughter of the male owner" of a licensed liquor
establishment.
74 F.
Supp. 735. On appeal to this Court,
affirmed, p.
335 U. S.
467.
Page 335 U. S. 465
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
As part of the Michigan system for controlling the sale of
liquor, bartenders are required to be licensed in all cities having
a population of 50,000, or more, but no female may be so licensed
unless she be "the wife or daughter of the male owner" of a
licensed liquor establishment. Section 19a of Act 133 of the Public
Acts of Michigan 1945, Mich.Stat.Ann. § 18,990(1), Cum.Supp. 1947.
The case is here on direct appeal from an order of the District
Court of three judges, convened under § 266 of the old Judicial
Code, now 28 U.S.C. § 2284, denying an injunction to restrain the
enforcement of the Michigan law. The claim, denied below, one judge
dissenting,
74 F.
Supp. 735, and renewed here, is that Michigan cannot forbid
females generally from being barmaids and at the same time make an
exception in favor of the wives and daughters of the owners of
liquor establishments. Beguiling as the subject is, it need not
detain us long. To ask whether or not the Equal Protection of the
Laws Clause of the Fourteenth Amendment barred Michigan from making
the classification the State has made between wives and daughters
of owners of liquor places and wives and daughters of nonowners, is
one of those rare instances where to state the question is in
effect to answer it.
We are, to be sure, dealing with a historic calling. We meet the
alewife, sprightly and ribald, in Shakespeare, but, centuries
before him, she played a role in the social life of England.
See, e.g., Jusserand, English Wayfaring Life, 133, 134,
136-37 (1889). The Fourteenth Amendment did not tear history up by
the roots, and the regulation of the liquor traffic is one of the
oldest and most untrammeled of legislative powers. Michigan could,
beyond question, forbid all women from working behind a bar. This
is so despite the vast changes
Page 335 U. S. 466
in the social and legal position of women. The fact that women
may now have achieved the virtues that men have long claimed as
their prerogatives, and now indulge in vices that men have long
practiced, does not preclude the States from drawing a sharp line
between the sexes, certainly in such matters as the regulation of
the liquor traffic.
See the Twenty-First Amendment and
Carter v. Virginia, 321 U. S. 131. The
Constitution does not require legislatures to reflect sociological
insight, or shifting social standards, any more than it requires
them to keep abreast of the latest scientific standards.
While Michigan may deny to all women opportunities for
bartending, Michigan cannot play favorites among women without
rhyme or reasons. The Constitution in enjoining the equal
protection of the laws upon States precludes irrational
discrimination as between persons or groups of persons in the
incidence of a law. But the Constitution does not require
situations "which are different in fact, or opinion to be treated
in law as though they were the same."
Tigner v. Texas,
310 U. S. 141,
310 U. S. 147.
Since bartending by women may, in the allowable legislative
judgment, give rise to moral and social problems against which it
may devise preventive measures, the legislature need not go to the
full length of prohibition if it believes that, as to a defined
group of females, other factors are operating which either
eliminate or reduce the moral and social problems otherwise calling
for prohibition. Michigan evidently believes that the oversight
assured through ownership of a bar by a barmaid's husband or father
minimizes hazards that may confront a barmaid without such
protecting oversight. This Court is certainly not in a position to
gainsay such belief by the Michigan legislature. If it is
entertainable, as we think it is, Michigan has not violated its
duty to afford equal protection of its laws. We cannot
cross-examine, either actually or argumentatively, the mind of
Michigan legislators,
Page 335 U. S. 467
nor question their motives. Since the line they have drawn is
not without a basis in reason, we cannot give ear to the suggestion
that the real impulse behind this legislation was an unchivalrous
desire of male bartenders to try to monopolize the calling.
It would be an idle parade of familiar learning to review the
multitudinous cases in which the constitutional assurance of the
equal protection of the laws has been applied. The generalities on
this subject are not in dispute; their application turns peculiarly
on the particular circumstances of a case. Thus, it would be a
sterile inquiry to consider whether this case is nearer to the
nepotic pilotage law of Louisiana, sustained in
Kotch v. River
Port Pilot Commissioners, 330 U. S. 552,
than it is to the Oklahoma sterilization law, which fell in
Skinner v. Oklahoma, 316 U. S. 535.
Suffice it to say that
"A statute is not invalid under the Constitution because it
might have gone farther than it did, or because it may not succeed
in bringing about the result that it tends to produce."
Roschen v. Ward, 279 U. S. 337,
279 U. S.
339.
Nor is it unconstitutional for Michigan to withdraw from women
the occupation of bartending because it allows women to serve as
waitresses where liquor is dispensed. The District Court has
sufficiently indicated the reasons that may have influenced the
legislature in allowing women to be waitresses in a liquor
establishment over which a man's ownership provides control.
Nothing need be added to what was said below as to the other
grounds on which the Michigan law was assailed.
Judgment affirmed.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MURPHY join, dissenting.
While the equal protection clause does not require a legislature
to achieve "abstract symmetry" [
Footnote 1] or to classify
Page 335 U. S. 468
with "mathematical nicety," [
Footnote 2] that clause does require lawmarkers to refrain
from invidious distinctions of the sort drawn by the statute
challenged in this case. [
Footnote
3]
The statute arbitrarily discriminates between male and female
owners of liquor establishments. A male owner, although he himself
is always absent from his bar, may employ his wife and daughter as
barmaids. A female owner may neither work as a barmaid herself nor
employ her daughter in that position, even if a man is always
present in the establishment to keep order. This inevitable result
of the classification belies the assumption that the statute was
motivated by a legislative solicitude for the moral and physical
wellbeing of women who, but for the law, would be employed as
barmaids. Since there could be no other conceivable justification
for such discrimination against women owners of liquor
establishments, the statute should be held invalid as a denial of
equal protection.
[
Footnote 1]
Patsone v. Pennsylvania, 232 U.
S. 138,
232 U. S.
144.
[
Footnote 2]
Lindsley v. Natural Carbonic Gas Co., 220 U.
S. 59,
220 U. S. 61,
220 U. S. 78-82;
see also Tigner v. Texas, 310 U.
S. 141,
310 U. S. 147;
Bain Peanut Co. v. Pinson, 282 U.
S. 499,
282 U. S. 501;
Bryant v. Zimmerman, 278 U. S. 63,
278 U. S. 73-77;
Miller v. Wilson, 236 U. S. 373,
236 U. S.
384.
[
Footnote 3]
Cf. Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535;
Missouri ex rel. Gaines v. Canada, 305 U.
S. 337;
McCabe v. Atchison, T. & S.F. R.
Co., 235 U. S. 151;
Yick Wo v. Hopkins, 118 U. S. 356.
And see Kotch v. River Port Pilot Commissioners,
330 U. S. 552,
dissenting opinion,
330 U. S.
564.