SAIL'ER INN,
INC., et al., Petitioners, v. EDWARD J.
KIRBY, as Director, etc., et al.,
Respondents
L.A. No. 29811
Supreme Court of
California
5 Cal. 3d 1; 485 P.2d 529;
1971 Cal. LEXIS 230; 95 Cal. Rptr. 329;
46 A.L.R.3d 351; 3 Fair Empl. Prac. Cas.
(BNA) 550; 3 Empl. Prac. Dec. (CCH) P8222
May 27, 1971
DISPOSITION:
[***1]
For the
reasons stated, we find section 25656
invalid. Let the peremptory writ of
mandate issue compelling the Director of
the Department of Alcoholic Beverage
Control to cease license revocation
proceedings based upon section 25656 of
the Business and Professions Code and to
cease enforcement of the section.
HEADNOTES:
Classified to McKinney's Digest
(1)
Administrative Law @ 125 -- Judicial
Review and Control -- Exhaustion of
Administrative Remedies. -- Where a
person is placed in the untenable
situation of having to choose whether to
obey possibly conflicting federal and
state laws and face a penalty under the
one he chooses to disobey, it would be
improper to require him to exhaust his
administrative remedies as a prerequisite
to an application for judicial relief.
(2)
Administrative Law @ 134 -- Judicial
Review and Control -- Mandamus. --
Mandamus is an appropriate writ for the
review of the exercise of quasi-judicial
power by constitutionally authorized
statewide agencies, such as the
Department of Alcoholic Beverage Control.
(3)
Administrative Law @ 132 -- Judicial
Review and Control -- Certiorari. --
Certiorari is an appropriate writ for the
review of the [***2] exercise of
quasi-judicial power by constitutionally
authorized statewide agencies, such as
the Department of Alcoholic Beverage
Control.
(4)
Administrative Law @ 126 -- Judicial
Review and Control -- Exhaustion of
Administrative Remedies -- Exceptions to
Doctrine. -- The general rule that
mandamus will issue only after final
order or decision of the administrative
agency which is involved is subject to a
limited number of exceptions.
(5)
Intoxicating Liquors @ 30 -- Licenses and
Permits -- Mandamus. -- Mandate to
prevent revocation of liquor licenses by
the Department of Alcoholic Beverage
Control for hiring female bartenders in
violation of Bus. & Prof. Code, @
25656, is available to petitioners
charged with violating that statute, and
is also available to petitioners not yet
charged, but who wish to employ female
bartenders and fear enforcement of the
statute by the department.
(6)
Mandamus @ 6 -- Conditions Affecting
Issuance -- Inadequacy of Legal Remedy.
-- The issuance of an alternative writ of
mandate by the Supreme Court constitutes
a determination that the legal remedy is
inadequate in the particular case, and
that the court's exercise of its
jurisdiction [***3] in the case is
proper.
(7)
Constitutional Law @ 162 -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Bases of
Classification. -- Pursuant to Cal.
Const., art. XX, @ 18, sex alone may not
be used to exclude a person from a
vocation, profession or business.
[See
Cal.Jur.2d, Constitutional Law, @ 283.]
(8)
Constitutional Law @ 162 -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Bases of
Classification. -- Cal. Const., art. XX,
@ 18, constitutes a restraint upon the
law-making power of the state, and
renders legislative enactments contrary
to its provisions void.
(9)
Constitutional Law @ 162 -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Bases of
Classification. -- Cal. Const., art. XX,
@ 18, does not admit of exceptions based
on popular notions of what is a proper,
fitting, or moral occupation for persons
of either sex.
(10)
Constitutional Law @ 162 -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Bases of
Classification. -- Cal. Const., art. XX,
@ 18, in no way prevents the Legislature
from dealing effectively with the evils
[***4] and dangers inherent in selling
and serving alcoholic beverages, but
merely precludes resort to legislation
against women, rather than against the
particular evil sought to be curbed.
(Overruling Ex Parte Hayes, 98 Cal. 555
[33 P. 337].)
(11)
Intoxicating Liquors @ 9.26 -- Alcoholic
Beverage Control Act -- Offenses --
Female Bartenders -- Validity of Statute.
-- Bus. & Prof. Code, @ 25656,
prohibiting females from tending bar
except in certain situations, is
repugnant to Cal. Const., art. XX, @ 18,
declaring that a person may not be
disqualified because of sex from entering
or pursuing a lawful business, vocation,
or profession, and is, therefore, void.
(12)
Constitutional Law @ 13 -- Operation and
Effect of Constitutions -- Supremacy. --
A state law that interferes with, or is
contrary to, federal law is void under
the supremacy clause of the United States
Constitution.
(13)
Intoxicating Liquors @ 5 -- Federal
Constitution and Statutes. -- U.S.
Const., Amend. XXI, @ 2, relating to
transportation of intoxicating liquors in
violation of state laws, does not reach
all alcoholic beverage situations that
would otherwise fall within Congress'
commerce clause [***5] powers and,
furthermore, some balancing and
accommodation must take place even in
those situations covered by the express
language of the amendment.
(14)
Labor @ 1.1 -- Fair Employment Practices
-- Equal Employment Opportunities. --
Title VII of the Civil Rights Act of 1964
(42 U.S.C. @@ 2000e through 2000e-15),
relating to equal employment
opportunities, was passed to prevent the
impact of racial and sexual
discrimination in employment on
interstate commerce, was not enacted to
regulate the flow of alcohol as a
commodity in interstate commerce, and
does not conflict with U.S. Const.,
Amend. XXI, (15) Labor @ 1.1 -- Fair
Employment Practices -- Equal Employment
Opportunities -- Weight of Guidelines
Promulgated by Administrative Agency. --
Guidelines promulgated by the federal
Equal Employment Opportunity Commission
are entitled to great deference.
(16)
Intoxicating Liquors @ 9.26 -- Alcoholic
Beverage Control Act -- Offenses --
Female Bartenders -- Validity of Statute.
-- Bus. & Prof. Code, @ 25656,
prohibiting females from tending bar
except in certain situations, is not
based on a bona fide occupational
qualification necessary to the operation
of a [***6] bar, and is, therefore, in
direct conflict with 42 U.S.C. @ 2000e-2,
a part of the Civil Rights Act of 1964,
prohibiting certain employment practices.
(17)
Labor @ 1.1 -- Fair Employment Practices
-- Equal Employment Opportunities. --
Whether a condition constitutes a
"bona fide occupational
qualification reasonably necessary to the
normal operation of" a particular
business or enterprise, within
contemplation of 42 U.S.C. @ 2000e-2, is
a matter of evidence.
(18)
Intoxicating Liquors @ 9.26 -- Alcoholic
Beverage Control Act -- Offenses --
Female Bartenders -- Validity of Statute.
-- Bus. & Prof. Code, @ 25656,
prohibiting females from tending bar
except in certain situations, conflicts
with 42 U.S.C. @ 2000e-2, a part of the
Civil Rights Act of 1964, and, as to
those liquor licensees who employ the
requisite 25 employees and otherwise come
within the prohibition of the federal
statute, the state statute is invalid and
must fall.
(19)
Intoxicating Liquors @ 9 -- Regulation --
State Statutes -- Constitutional
Restrictions -- Equal Protection. -- The
power of the state to regulate alcoholic
beverages is necessarily subject to the
demands of the equal protection [***7]
clause of the Fourteenth Amendment.
(20)
Constitutional Law @ 120 -- Fundamental
Rights, Privileges and Immunities --
Right to Engage in Occupations. --
Limitations on the right to work may be
sustained only after the most careful
scrutiny.
(21)
Constitutional Law @ 120 -- Fundamental
Rights, Privileges and Immunities --
Right to Engage in Occupation --
Bartending as Lawful Occupation. --
Bartending and related jobs, although
carefully regulated, are lawful
occupations.
(22)
Constitutional Law @ 162 -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Classification
-- Sex as Basis. -- With respect to
constitutional equal protection
provisions, sexual classifications are
properly treated as suspect, particularly
where made with respect to a fundamental
interest, such as employment.
(23)
Intoxicating Liquors @ 2 -- Regulation --
Control of Improprieties. -- The
Legislature may pass laws to prevent
improprieties in connection with the sale
of alcoholic beverages.
(24)
Constitutional Law @ 156(4) -- Equal
Protection of Laws, Class Legislation and
Uniformity of Operation -- Reasonableness
of Classification -- Relation to Object
[***8] and Purpose of Statute. -- Where
the class singled out by the Legislature
in a statute has no necessary connection
with the evil sought to be prevented, and
where that evil can be directly prevented
through nondiscriminatory legislation,
the statute must be struck down as an
invidious discrimination against that
class.
(25)
Intoxicating Liquors @ 9.26 -- Alcoholic
Beverage Control Act -- Offenses --
Female Bartenders -- Validity of Statute.
-- A compelling state interest in support
of the classification set forth in Bus.
& Prof. Code, @ 25656, cannot be
established on the rationale that female
bartenders would be an unwholesome
influence on the public. (Disapproving
Hargens v. Alcoholic Beverage etc. App.
Bd., 263 Cal.App.2d 601 [69 Cal.Rptr.
868], and People v. Jemnez, 49 Cal.App.2d
Supp. 739 [121 P.2d 543], to the extent
that they conflict with the views stated
herein.)
(26)
Intoxicating Liquors @ 9.26 -- Alcoholic
Beverage Control Act -- Offenses --
Female Bartenders -- Validity of Statute.
-- The classification created by Bus.
& Prof. Code, @ 25656, prohibiting
females from tending bar except in
certain situations, is invidious, wholly
[***9] arbitrary, and unconstitutional
under the equal protection clauses of the
state and federal Constitutions.
COUNSEL:
Manuel H. Miller and Julius A. Dix for
Petitioners.
Richard
Gladstein, Gladstein, Leonard, Patsey
& Andersen, and Herma Hill Kay as
Amici Curiae on behalf of Petitioners.
Thomas
C. Lynch and Evelle J. Younger, Attorneys
General, and Henry G. Ullerich, Deputy
Attorney General, for Respondents.
JUDGES:
In Bank. Opinion by Peters, J.,
expressing the unanimous view of the
court. Wright, C. J., McComb, J.,
Tobriner, J., Mosk, J., Burke, J., and
Sullivan, J., concurred.
OPINIONBY:
PETERS
OPINION:
[*6] [**531] Petitioners, holders of
on-sale liquor licenses, seek a writ of
mandate to prevent the Department of
Alcoholic Beverage Control from revoking
their licenses because they hired women
bartenders, contrary to the prohibition
contained in section 25656 of the
Business and Professions Code. n1 Section
25656 prohibits women from tending bar
except when they are licensees, wives of
licensees or are, singly or with their
husbands, the sole shareholders of a
corporation holding the license. n2
Petitioners and amicus curiae contend
that the code section violates article
[***10] XX, section 18 of the California
Constitution, the 1964 Federal Civil
Rights Act (42 U.S.C.A. @ 2000e-2), and
the equal protection clauses of the
United States and California
Constitutions. n3
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n1
Petitioners have standing to raise the
constitutional rights of those women
excluded from bartending because they are
also criminally liable under that statute
for hiring women bartenders, and face
possible license revocation as well. (See
Griswold v. Connecticut (1965) 381 U.S.
479, 481 [14 L.Ed.2d 510, 512-513, 85
S.Ct. 1678].) n2 Section 25656 of the
Business and Professions Code provides:
"Every person who uses the services
of a female in dispensing wine or
distilled spirits from behind any
permanently affixed fixture which is used
for the preparation or concoction of
alcoholic beverages, or in mixing
alcoholic beverages containing distilled
spirits, on any premises used for the
sale of alcoholic beverages for
consumption on the premises, or any
female who renders such services on such
premises, is guilty of a misdemeanor, and
upon conviction is punishable by a fine
of not more than one hundred dollars ($
100) or by imprisonment in the county
jail for not more than three months, or
by both such fine and imprisonment.
"The
provisions of this section do not apply
to the dispensing of wine or distilled
spirits or to the mixing of alcoholic
beverages containing distilled spirits by
any on-sale licensee, or to the
dispensing of wine or distilled spirits
or to the mixing of such beverages by the
wife of any licensee on the premises for
which her husband holds an on-sale
license, or to the dispensing of wine or
distilled spirits or to the mixing of
such spirits by a female, when she is the
sole shareholder or when she and her
husband are the sole shareholders of the
corporation which holds the on-sale
license for the premises." [***11]
n3 After
the petition was filed in this case, the
Fair Employment Practices Act (Lab. Code,
@ 1410 et seq.) barring discrimination in
employment, was amended to include
discrimination on the basis of sex.
(Stats. 1970, ch. 1508, p. 40.) The Fair
Employment Practices Act makes it an
unlawful employment practice to
discriminate on the basis of sex except
where such discrimination is based on a
bona fide occupational qualification, as
does the 1964 Federal Civil Rights Act
(42 U.S.C.A. @ 2000e-2, see section II,
infra). Because we find section 25656
invalid on other grounds, we need not
reach the question whether the amendment
impliedly repeals section 25656.
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[**532]
Petitioners challenge the
constitutionality of the statute on its
face; no material facts are disputed. n4
They raise important legal issues of
statewide [*7] significance. Two of them
are placed in the untenable situation of
having to choose whether to obey possibly
conflicting federal and state laws and
face a penalty under the one they choose
to disobey. In light of these
extraordinary circumstances, [***12] it
would be improper to require them to
exhaust their administrative remedies.
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n4 The
Attorney General concedes that
petitioners Sail'er Inn, Inc. and Walter
Robson each have 25 employees, thereby
bringing them under the 1964 Civil Rights
Act. Petitioners Angelo E. Gianone and
Josephine Van Epps apparently do not have
the requisite 25 employees nor does it
appear that the Alcoholic Beverage
Control Department has begun or
threatened proceedings against them for
violation of section 25656.
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Mandamus,
like certiorari, is an appropriate writ
for the review of the exercise of
quasi-judicial power by constitutionally
authorized statewide agencies such as the
Department of Alcoholic Beverage Control
(Cal. Const., art. XX, @ 22; People v.
County of Tulare, 45 Cal.2d 317, 319 [289
P.2d 11]; Boren v. State Personnel Board,
37 Cal.2d 634, 637 [234 P.2d 981]; see
also Kleps, Certiorarified Mandamus
Reviewed: The Courts and California
Administrative Decisions -- 1949-1959, 12
Stan.L.Rev. 554, 555, [***13] 563, fn.
35.) While ordinarily mandamus will issue
only after final order or decision of the
administrative agency, a limited number
of exceptions to the exhaustion doctrine
have long been recognized in this state.
(See, e.g., County of Alpine v. County of
Tuolumne (1958) 49 Cal.2d 787 [322 P.2d
449]; United States v. Superior Court
(1941) 19 Cal.2d 189 [120 P.2d 26]; Diaz
v. Quitoriano, 268 Cal.App.2d 807, 812
[74 Cal.Rptr. 358].)
The writ
of mandate "may be issued by any
court . . . to any inferior tribunal,
corporation, board, or person . . . to
compel the admission of a party to the
use and enjoyment of a right or office to
which he is entitled, and from which he
is unlawfully precluded by such inferior
tribunal, corporation, board or
person." (Italics added.) (Code Civ.
Proc., @ 1085.) In a number of cases,
mandamus has been held to issue to
prohibit official conduct where
prohibition would not lie because the
threatened official act was not judicial
but ministerial in nature. (Miller v.
Greiner, 60 Cal.2d 827, 830 [36 Cal.Rptr.
737, 389 P.2d 129]; Perry v. Jordan, 34
Cal.2d 87 [207 P.2d 47]; Evans v.
Superior Court [***14] , 20 Cal.2d 186
[124 P.2d 820]; see 3 Witkin, Cal.
Procedure (1954) @ 77, pp. 2575-2577.)
Accordingly,
although the remedy of certiorari, might
be appropriate as to the petitioners who
have been charged with violations of
section 25656, mandate is also
appropriate, and mandate is an
appropriate remedy for those petitioners
not yet charged but who wish to employ
female bartenders and fear enforcement of
the section by defendant.
By
issuing the alternative writ, we have
determined that the legal remedy is
inadequate, and the exercise of our
jurisdiction in this case is proper. (San
Francisco Unified School Dist. v. Johnson
(1971) 3 Cal.3d 937, 945 [92 Cal.Rptr.
309, 479 P.2d 669]; Westbrook v. Mihaly
[*8] (1970) 2 Cal.3d 765, 773 [87
Cal.Rptr. 839, 471 P.2d 487]; Hagan v.
Superior Court (1960) 53 Cal.2d 498 [2
Cal.Rptr. 288, 348 P.2d 896].)
[**533]
I. Section 18 of Article XX of the State
Constitution
Article
XX, section 18 of the California
Constitution provides that "[a]
person may not be disqualified because of
sex, from entering or pursuing a lawful
business, vocation, or profession."
n5
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n5
Section 18 was amended slightly by
general election of November 3, 1970.
Prior to that, the section read as
follows: "No person shall, on
account of sex, be disqualified from
entering upon or pursuing any lawful
business, vocation, or profession."
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- - - - - - - - - - - - - - - [***15]
In
explicit and unqualified language, this
section makes it clear that sex alone may
not be used to bar a person from a
vocation, profession or business. (See,
e.g., Carter v. City of Los Angeles
(1948) 31 Cal.2d 341, 346 [188 P.2d 465];
Matter of Maguire (1881) 57 Cal. 604.)
Provisions of the Constitution are
"mandatory and prohibitory, unless
by express words they are declared to be
otherwise." (Cal. Const., art I, @
22.) Section 18 constitutes a restraint
upon the law-making power of the state,
and legislative enactments contrary to
its provisions are void.
Well
before the turn of the century this court
enunciated the meaning and effect to be
given this section of the Constitution in
a case quite similar to the instant one.
Matter of Maguire, supra, 57 Cal. 604,
held that a San Francisco ordinance which
prohibited women from waiting on
customers between 6 p.m. and 6 a.m. in a
place where liquor was sold conflicted
with section 18.
Justice
Thornton, expressing the opinion of three
of the four justices in the majority,
said: "As we understand the section,
it does establish, as the permanent and
settled rule and policy of this State,
that there shall be no [***16]
legislation either directly or indirectly
incapacitating or disabling a woman from
entering on or pursuing any business,
vocation, or profession permitted by law
to be entered on and pursued by those
sometimes designated as the stronger sex.
. . . [There] are no exceptions in this
section, and neither we nor any other
power in the State have the right or
authority to insert any, whether on the
ground of immorality or any other ground.
All these are considerations of policy,
the determination of which belonged to
the convention framing and the people
adopting the Constitution; and their
final and conclusive judgment has been
expressed and entered in the clear and
unmistakable language of the Constitution
itself, . . ." (Italics added.)
(Matter of Maguire, supra, 57 Cal. at p.
608.) n6
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n6 The
fourth member of the majority, in his
concurring opinion, took the position
that, while sentimentality or prejudice
cannot be grounds for prohibiting women
from entering or pursuing a particular
business or profession, the Legislature
may require that the sexes pursue their
chosen occupation separately where the
"conjoint pursuit" of that
occupation leads to indecency and
immorality.
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[*9] As
Maguire made clear, section 18 does not
admit of exceptions based on popular
notions of what is a proper, fitting or
moral occupation for persons of either
sex. Although an inability to perform the
tasks required by a particular
occupation, sex-linked or not, may be a
justification for discrimination against
job applicants, under section 18, mere
prejudice, however ancient, common or
socially acceptable, is not.
If
section 18 is to be endowed with any
force and meaning it must invalidate
section 25656. It is clear that
bartending is a lawful vocation, that
women are as capable of mixing drinks as
men, and that section 25656 nonetheless
disqualifies the vast majority of women
from entering the bartending occupation.
The
Attorney General makes two arguments
based on the notion that women are
incapable of tending bar. First, he
suggests that the Legislature may have
concluded that a male bartender or owner
must be present in a liquor establishment
to preserve order and protect patrons, a
function which he contends a woman could
not perform. This argument ignores modern
day reality. Today most bars, unlike the
saloons [**534] of the Old West, are
[***18] relatively quiet, orderly and
respectable places patronized by both men
and women. Even if they were not, many
bars employ bouncers whose sole job is to
keep order in the establishment.
Furthermore, the experience in the states
which permit women to tend bar indicates
that the dire moral and social problems
predicted by the Attorney General do not
arise. (See, e.g., Paterson Tavern &
G. O. A. v. Borough of Hawthorne (1970)
57 N.J. 180, 186 [270 A.2d 628, 631];
Anderson v. City of St. Paul (1948) 226
Minn. 186, 209 [32 N.W.2d 538, 550-551]
(dissenting opinion by Loring, C.J.).)
Second,
the Attorney General argues that the
statute was designed to protect women
since fewer women can be injured by
inebriated customers if they are not
permitted to work behind a bar. It is
difficult to believe that women working
behind the bar would be more subject to
such dangers than the cocktail waitresses
who are now permitted to work among the
customers.
But even
if we assume that bartending is more
dangerous than waiting on tables, there
is no evidence that women bartenders are
more likely than male bartenders to
suffer injury at the hands of customers.
The desire to protect [***19] women from
the general hazards inherent in many
occupations cannot be a valid ground for
excluding them from those occupations
under [*10] section 18. Women must be
permitted to take their chances along
with men when they are otherwise
qualified and capable of meeting the
requirements of their employment. (See
Kanowitz, Women and The Law (1969) pp.
33-34.) We can no more justify denial of
the means of earning a livelihood on such
a basis than we could deny all women
drivers' licenses to protect them from
the risk of injury by drunk drivers. Such
tender and chivalrous concern for the
well-being of the female half of the
adult population cannot be translated
into legal restrictions on employment
opportunities for women.
A third
contention raised by the Attorney General
is that section 25656 was intended to
prevent improprieties and immoral acts.
Section 18 in no way prevents the
Legislature from dealing effectively with
the evils and dangers inherent in selling
and serving alcoholic beverages; it
merely precludes resort to legislation
against women rather than against the
particular evil sought to be curbed. n7
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n7 We
overrule Ex parte Hayes (1893) 98 Cal.
555 [33 P. 337], which took the patently
untenable position that article XX,
section 18, does not limit the power of
the state to regulate the manner in which
retail liquor businesses are conducted.
Article XX, section 22, which provides
for alcoholic beverage control, states
that constitutional provisions
inconsistent with section 22 are
repealed. Section 18 is in no way
inconsistent with section 22.
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We
reiterate what Justice Thornton said so
long ago in Maguire in response to the
contention that permitting women to serve
drinks leads to immorality: "[The]
law-making power of the State is ample to
make laws affecting both sexes alike, and
not inhibited by the Constitution, which
will accomplish the object so much
desired -- to prevent practices hurtful
to public morality. The Constitution was
not framed with a disregard of the
important considerations urged upon us in
this regard. It merely directs that a law
which is framed to accomplish this object
by affecting or operating upon lawful
callings, shall affect both sexes
alike." (Matter of Maguire, supra,
57 Cal. at p. 609.)
Section
25656 is repugnant to article XX, section
18, of the California Constitution and is
therefore void.
II. The
1964 Civil Rights Act
Petitioners
urge that section 25656 conflicts with
the nondiscriminatory hiring provision
contained in title VII of the federal
Civil Rights Act of 1964 (42 U.S.C.A. @
2000e-2 (a)). A state law, however
clearly within a state's acknowledged
power, which interferes with or is
contrary to federal law is void under the
supremacy [**535] clause [***21] of the
United States Constitution (U.S. Const.,
art. VI, cl. 2; Free v. Bland (1962) 369
U.S. 663, 666 [*11] [8 L.Ed.2d 180, 183,
82 S.Ct. 1089]; Gibbons v. Ogden (1824)
22 U.S. (9 Wheat.) 1, 11 [6 L.Ed. 23,
25]; Richards v. Griffith Rubber Mills
(D.Ore. 1969) 300 F.Supp. 338, 340;
Rosenfeld v. Southern Pacific Company
(C.D.Cal. 1968) 293 F.Supp. 1219, 1224).
The
Attorney General urges, however, that the
federal Civil Rights Act does not apply
because section 2 of the Twenty-first
Amendment to the United States
Constitution precludes federal
interference with state regulation of
alcoholic beverages. Section 2 provides
that "[the] transportation or
importation into any State, Territory, or
possession of the United States for
delivery or use therein of intoxicating
liquors, in violation of the laws
thereof, is hereby prohibited."
(Italics added.) The Attorney General
contends that this amendment "cedes
vast plenary powers" to the states
to regulate alcoholic beverages
"unfettered" by the commerce
clause. Since the 1964 Civil Rights Act
was passed pursuant to Congress' commerce
clause power, it is contended that a
state's power to [***22] regulate liquor
is also unfettered by the 1964 Civil
Rights Act.
This
argument must fail. The Twenty-first
Amendment clearly was not intended to
work such a wholesale "repeal"
of the commerce clause in the area of
alcoholic beverage control. When national
prohibition was terminated by section 1
of the Twenty-first Amendment, section 2
was added as a "saving clause"
to protect the laws of states which chose
to retain prohibition against a possible
conflict with the commerce clause. (See
United States v. Colorado Wholesale W.
& Liq. Deal. Ass'n. (D.Colo. 1942) 47
F.Supp. 160, 162, revd. 144 F.2d 824,
revd. 324 U.S. 293 [89 L.Ed. 951, 65
S.Ct. 661]; Joseph Triner Corporation v.
Arundel (D.Minn. 1935) 11 F.Supp. 145,
146-147.) The language of the amendment
clearly reflects the purpose, since it
prohibits the importation or transporting
of liquor only into states where such
importation will be in violation of the
laws thereof.
Section
2 represents the incorporation of a
somewhat narrowed version of the
Webb-Kenyon Act (37 Stats. 699, 27
U.S.C.A. @ 122 (1913)) into the
Constitution. (Washington Brewers
Institute v. United States (9th Cir.
1943) 137 F.2d 964, [***23] 967, cert.
den. 320 U.S. 776 [88 L.Ed. 465, 64 S.Ct.
89]; Note, The Twenty-First Amendment
Versus the Interstate Commerce Clause
(1946) 55 Yale L.J. 815, 816-818.) The
Webb-Kenyon Act was passed in 1913 under
the title "[an] Act divesting
intoxicating liquors of their interstate
character in certain cases." Its
purpose was to "'prevent the
immunity characteristic of interstate
commerce from being used to permit the
receipt of liquor through such commerce
in States contrary to their laws, and
thus in effect afford a means by
subterfuge and indirection to set such
laws at naught.'" (Seaboard Air Line
Ry. [*12] v. North Carolina (1917) 245
U.S. 298, 303 [62 L.Ed. 299, 303, 38
S.Ct. 96].)
Although
some early cases painted state powers
under section 2 of the Twenty-first
Amendment with a broad brush, later
decisions have taken a position more in
keeping with the original intent of the
amendment. (See, e.g., Seagram & Sons
v. Hostetter (1966) 384 U.S. 35, 42 [16
L.Ed.2d 336, 342, 86 S.Ct. 1254];
Hostetter v. Idlewild Liquor Corp. (1964)
377 U.S. 324 [12 L.Ed.2d 350, 84 S.Ct.
1293].) In Hostetter v. Idlewild Liquor
Corp., supra, the Supreme [***24] Court
restated the effect of the Twenty-first
Amendment: "'Since the Twenty-first
Amendment . . . the right of a state to
prohibit or regulate the importation of
intoxicating liquor is not limited by the
commerce clause.'" (Italics added.)
(Id., at p. 330 [12 L.Ed.2d at p. 355].)
The court rejected the argument that the
Twenty-first Amendment gave the states
plenary power over alcoholic beverages:
"To draw a conclusion . . . that the
Twenty-first Amendment has somehow
operated to 'repeal' the Commerce Clause
wherever regulation of intoxicating
liquors [**536] is concerned would . . .
be an absurd over-simplification. If the
Commerce Clause had been pro tanto
'repealed,' then Congress would be left
with no regulatory power over interstate
or foreign commerce in intoxicating
liquor. Such a conclusion would be
patently bizarre and is demonstrably
incorrect." (Id., at pp. 331-332 [12
L.Ed.2d at p. 356].)
The
court then went on to declare that
"[both] the Twenty-first Amendment
and the Commerce Clause are parts of the
same Constitution. Like other provisions
of the Constitution, each must be
considered in the light of the other, and
in the context [***25] of the issues and
interests at stake in any concrete
case." (Id., at p. 332 [12 L.Ed.2d
at p. 356].) n8
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- - - - - - - - - - - - - - -
n8 See
Note, The Supreme Court, 1963 Term: State
Taxation and Regulation (1964) 78
Harv.L.Rev. 143, 237, 240, which
concludes that the recognition of an
accommodation between the Twenty-first
Amendment and the commerce clause
"casts doubt on cases holding that
the amendment frees the states completely
from commerce clause limitations."
- - - -
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- - - - - - - - - - - - - - -
Thus it
is apparent that the Twenty-first
Amendment not only does not reach all
alcoholic beverage cases which would
otherwise fall within Congress' commerce
clause powers, but even in those
situations covered by the express
language of the amendment, some balancing
and accommodation must take place.
Section
25656 is not even tangentially related to
"transportation or importation"
of liquor into California, and therefore
does not fall within the literal language
of the Twenty-first Amendment. The
statute merely [*13] regulates employment
at the retail level, [***26] and has
nothing to do with the flow of alcoholic
beverages into the state. But even if the
amendment were broadly construed to cover
all state laws regulating the liquor
business, the interests and issues at
stake in employment discrimination cases
present no conflict with the intent and
purposes of the Twenty-first Amendment.
Title VII of the Civil Rights Act was
passed to prevent the impact of racial
and sexual discrimination in employment
on interstate commerce. It was not
enacted to regulate the flow of alcohol
as a commodity in interstate commerce.
Since the aim of the Civil Rights Act is
so wholly different from that of the
Twenty-first Amendment, the two
provisions in no way clash with each
other. This is an appropriate case for
the accommodation suggested in Hostetter
v. Idlewild Liquor Corp., supra.
We turn
to the question whether section 25656 is
in direct conflict with section 2000e-2
of the Civil Rights Act of 1964. (42
U.S.C.A. @ 2000e-2.)
Section
2000e-2(a) makes it unlawful to hire or
to "limit, segregate, or
classify" employees in any way which
would tend to deprive an employee of
employment opportunities on the basis of
sex. n9 Section 2000e-2(e) [***27]
permits an exception only where there is
a "bona fide occupational
qualification reasonably necessary to the
normal operation of that particular
business or enterprise, . . ." n10
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- - - - - - - - - - - - - - -
n9
Section 2000e-2(a) provides: "It
shall be an unlawful employment practice
for an employer -- (1) to fail or refuse
to hire or to discharge any individual,
or otherwise to discriminate against any
individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of such
individual's race, color, religion, sex,
or national origin; or (2) to limit,
segregate, or classify his employees in
any way which would deprive or tend to
deprive any individual of employment
opportunities or otherwise adversely
affect his status as an employee, because
of such individual's race, color,
religion, sex, or national origin."
n10
Section 2000e-2(e) states in relevant
part: "Notwithstanding any other
provision of this subchapter, (1) it
shall not be an unlawful employment
practice for an employer to hire and
employ employees . . . on the basis of
[their] religion, sex, or national origin
in those certain instances where
religion, sex, or national origin is a
bona fide occupational qualification
reasonably necessary to the normal
operation of that particular business or
enterprise, . . ."
- - - -
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- - - - - - - - - - - - - - - [***28]
[**537]
In determining whether prohibiting women
from tending bar falls within the bona
fide occupational qualification exception
to the federal statute, we are
necessarily influenced by the guidelines
promulgated by the Equal Employment
Opportunity Commission. (29 C.F.R. @
1604.1.) These guidelines, which are
entitled to "great deference"
(Udall v. Tallman (1965) 380 U.S. 1, 16
[13 L.Ed.2d 616, 625, 85 S.Ct. 792]),
state that "assumptions of the
comparative employment
characteristics" [*14] of women in
general (29 C.F.R. @ 1604.1(a)(1)(i)) and
"sterotyped characterizations"
of the sexes (29 C.F.R. @
1604.1(a)(1)(ii)) do not warrant the
application of the bona fide occupational
qualification exception. Thus, under the
guidelines only an individual inquiry
into a particular woman applicant's
qualifications, or, at most, a clearly
justifiable general classification with
respect to a particular job category
meets the requirements of section
2000e-2. n11
- - - -
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- - - - - - - - - - - - - - -
n11"
The Commission believes that [protective]
State laws and regulations, although
originally promulgated for the purpose of
protecting females, have ceased to be
relevant to our technology or to the
expanding role of the female worker in
our economy. The Commission has found
that such laws and regulations do not
take into account the capacities,
preferences, and abilities of individual
females and tend to discriminate rather
than protect. . . ." (29 C.F.R. @
1604.1(b)(2).)
- - - -
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- - - - - - - - - - - - - - - [***29]
Applying
the Equal Employment Opportunity
Commission's guidelines, one court has
stated the test of a bona fide
occupational qualification is whether
"all or substantially all women
would be unable to perform safely and
efficiently the duties of the job
involved." (Weeks v. Southern Bell
Telephone & Telegraph Company (5th
Cir. 1969) 408 F.2d 228, 235.)
Courts,
following the guidelines, have
invalidated weight-lifting restrictions
for women (Bowe v. Colgate-Palmolive
Company (7th Cir. 1969) 416 F.2d 711;
Richards v. Griffith Rubber Mills, supra,
300 F.Supp. 338; Rosenfeld v. Southern
Pacific Company, supra, 293 F.Supp.
1219), hours limitations (Caterpillar
Tractor Co. v. Grabiec (S.D.Ill. 1970)
317 F.Supp. 1304) and exclusionary job
categories (Weeks v. Southern Bell
Telephone & Telegraph Company, supra,
408 F.2d 228 (switchman); McCrimmon v.
Daley (E.D.Ill. 1970) 2 F.E.P. Cases 971
(barmaid ordinance)). McCrimmon
specifically held that a Chicago
ordinance permitting only women liquor
licensees, or the wives, daughters,
sisters or mothers of licensees to tend
bar conflicts with title VII of the Civil
Rights Act.
Applying
these [***30] standards to section 25656,
we must hold that that statute is not
based upon a bona fide occupational
qualification necessary to the operation
of a bar and is therefore in direct
conflict with section 2000e-2 of the
Civil Rights Act.
Certainly,
as we state above, women as a class are
as capable as men of mixing drinks and
are permitted to do so in many states.
The technical capabilities of women are
not, however, at issue here. The
Legislature concedes this point when it
exempts women licensees and wives of male
licensees from the general prohibition
without regard to their capacity to
prepare spirits for consumption by
patrons of liquor establishments.
[*15]
The more serious contention that a
bartender must be physically strong
enough to protect himself against
inebriated customers and to maintain
order in the bar, and that women as a
class are unable to do so, must also be
rejected. Whether a condition constitutes
"a bona fide occupational
qualification reasonably necessary to the
normal operation of that particular
business or enterprise" is a matter
of evidence. (Phillips v. Martin Marietta
Corp. (1971) 400 U.S. 542 [27 L.Ed.2d
613, 91 S.Ct. 496].) The state [***31]
has made no showing whatever that
bartenders are endangered by their work
and require physical strength, not
possessed by women, for self defense and
to maintain order.
The
reason for the lack of such a showing is
apparent. As we have pointed out, [**538]
the saloon days of the Wild West are long
gone. Nowadays the typical bar does not
provide a setting for violence and
danger, if in fact it ever did. At most,
the dangers feared by the Attorney
General may justify discrimination only
in a particular establishment where,
first, the employer can prove that such
problems arise, and, second, that
"substantially all women" lack
the requisite strength to deal with such
problems. (Weeks v. Southern Bell
Telephone & Telegraph Co., supra, 408
F.2d 228, 235.) Such perils cannot serve
as the basis for a blanket statewide
statutory prohibition against the
employment of women bartenders.
We
conclude that section 25656 conflicts
with section 2000e-2 of the Civil Rights
Act. As to those liquor licensees who
employ the requisite 25 employees and
otherwise come within the prohibition of
section 2000e-2, section 25656 is invalid
and must fall. n12
- - - -
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- - - - - - - - - - - - - - -
n12 We
cannot agree with the contrary reasoning
in Krauss v. Sacramento Inn (E.D.Cal.
1970) 314 F.Supp. 171, nor are we bound
by its holding; see, e.g., People v.
Luros (1971) 4 Cal.3d 84, 91, fn. 8 [92
Cal.Rptr. 833, 480 P.2d 633]; In re
Whitehorn (1969) 1 Cal.3d 504, 511, fn. 2
[82 Cal.Rptr. 609, 462 P.2d 361], holding
that state Supreme Courts are not bound
by lower federal court rulings on
constitutional questions.
- - - -
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- - - - - - - - - - - - - - - [***32]
III.
Equal Protection
Finally,
it is contended that section 25656
violates the equal protection clause of
the Fourteenth Amendment to the United
States Constitution and article I,
sections 11 and 21, of the California
Constitution n13 in that it prohibits
women from tending bar unless they or
their husbands hold the liquor license;
but does not impose a comparable
limitation on men.
- - - -
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- - - - - - - - - - - - - - -
n13 The
California and federal tests for equal
protection are substantially the same.
(County of L.A. v. Southern Cal. Tel. Co.
(1948) 32 Cal.2d 378, 389 [196 P.2d
773].)
- - - -
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- - - - - - - - - - - - - - -
We
recognize that the state has particularly
broad powers with respect to the
manufacture of and traffic in alcoholic
beverages because of the [*16] dangers to
the public health and safety inherent in
their sale and use. (See Allied
Properties v. Dept. of Alcoholic Beverage
Control (1959) 53 Cal.2d 141, 147 [346
P.2d 737].) Nonetheless, the power of the
state to regulate alcoholic beverages is
necessarily subject to the demands of the
[***33] equal protection clause of the
Fourteenth Amendment. (See, e.g., Seagram
& Sons v. Hostetter, supra, 384 U.S.
35, 50 [16 L.Ed.2d 336, 347]; Parks v.
Allen (5th Cir. 1970) 426 F.2d 610, 613;
Hornsby v. Allen (5th Cir. 1964) 326 F.2d
605, 609.) n14
- - - -
- - - - - - - - - - - - - -Footnotes- - -
- - - - - - - - - - - - - - -
n14
State Board v. Young's Market Co. (1936)
299 U.S. 59, 64 [81 L.Ed. 38, 41, 57
S.Ct. 77], cited in the Attorney
General's brief, is not to the contrary.
In that case, the Supreme Court upheld
California's license fee on imported beer
against an equal protection attack,
stating that "[a] classification
recognized by the Twenty-first Amendment
cannot be deemed forbidden by the
Fourteenth." The case stands for the
proposition that the power given the
states under the Twenty-first Amendment
to forbid or regulate importation of
alcoholic beverages creates two classes
of beverage, those imported from out of
state and domestic beverages. (See,
Hornsby v. Allen, supra, 326 F.2d 605,
609.) Since the Twenty-first Amendment
creates this particular classification,
and the Fourteenth and Twenty-first
Amendments are of equal dignity, the
classification created by the
Twenty-first Amendment cannot be
invalidated by the Fourteenth. The
instant case does not involve the
classification created by the
Twenty-first Amendment.
- - - -
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- - - - - - - - - - - - - - - [***34]
Before
deciding whether the statute violates the
equal protection clauses of the state and
federal Constitutions we must determine
the proper standards for reviewing the
classification which the statute creates.
We have
followed the two-level test employed by
the United States Supreme Court in
reviewing legislative classifications
under the equal protection clause. (In re
Antazo (1970) 3 Cal.3d 100, 110-111 [89
Cal.Rptr. 255, 473 P.2d 999]; Westbrook
v. Mihaly, supra, 2 Cal.3d 765, 784-785;
Purdy & [**539] Fitzpatrick v. State
of California (1969) 71 Cal.2d 566,
578-579 [79 Cal.Rptr. 77, 456 P.2d 645];
see also, Note: Developments in the Law
-- Equal Protection (1969) 82 Harv.L.Rev.
1065, 1076-1077, 1088.)
"In
the area of economic regulation, the high
court has exercised restraint, investing
legislation with a presumption of
constitutionality and requiring merely
that distinctions drawn by a challenged
statute bear some rational relationship
to a conceivable legitimate state
purpose. [Citations.] [ para. ] On the
other hand, in cases involving 'suspect
classifications' or touching on
'fundamental interests,' the court has
adopted [***35] an attitude of active and
critical analysis, subjecting the
classification to strict scrutiny.
[Citations.] Under the strict standard
applied in such cases, the state bears
the burden of establishing not only that
it has a compelling interest which
justifies the law but that the
distinctions drawn by the law are
necessary [*17] to further its
purpose." (Westbrook v. Mihaly,
supra, 2 Cal.3d 765, 784-785.)
The
instant case compels the application of
the strict scrutiny standard of review,
first, because the statute limits the
fundamental right of one class of persons
to pursue a lawful profession, and,
second, because classifications based
upon sex should be treated as suspect. We
have held that the state may not
arbitrarily foreclose any person's right
to pursue an otherwise lawful occupation.
(Purdy & Fitzpatrick v. State of
California, supra, 71 Cal.2d 566, 579.)
The right to work and the concomitant
opportunity to achieve economic security
and stability are essential to the
pursuit of life, liberty and happiness.
As early as 1915, the United States
Supreme Court declared that "the
right to work for a living in the common
occupations of the community [***36] is
of the very essence of the personal
freedom and opportunity that it was the
purpose of [the Fourteenth] Amendment to
secure." (Truax v. Raich (1915) 239
U.S. 33, 41 [60 L.Ed. 131, 135, 36 S.Ct.
7].) The California Legislature accords
statutory recognition to the right to
work by declaring the opportunity to
seek, obtain and hold employment without
discrimination a civil right. (Lab. Code,
@ 1411.) Limitations on this right may be
sustained only after the most careful
scrutiny. (Purdy & Fitzpatrick v.
State of California, supra, 71 Cal.2d
566, 579; cf. Allgeyer v. Louisiana
(1897) 165 U.S. 578, 589-590 [41 L.Ed.
832, 835-836, 17 S.Ct. 427]; Truax v.
Raich, supra, 239 U.S. 33, 41; Endler v.
Schutzbank (1968) 68 Cal.2d 162, 169, fn.
4, 169-170 [65 Cal.Rptr. 297, 436 P.2d
297]; Blumenthal v. Board of Medical
Examiners (1962) 57 Cal.2d 228, 235 [18
Cal.Rptr. 501, 368 P.2d 101].) Bartending
and related jobs, though carefully
regulated, are lawful occupations and the
strict standard of review is therefore
justified on this ground.
We find
that strict review is also required
because of the characteristic upon which
the classification [***37] in the statute
is based. The United States Supreme Court
has not designated classifications based
on sex "suspect
classifications" requiring close
scrutiny and a compelling state
justification for their
constitutionality. n15 Nonetheless,
[**540] courts have begun to treat [*18]
sex classifications as at least
marginally suspect (see, e.g.,
Commonwealth v. Daniel (1968) 430 Pa. 642
[243 A.2d 400, 402-403]; Note: Longer
Sentence for Females . . . (1969) 82
Harv.L.Rev. 921, 923), and one federal
district court has explicitly recognized
these classifications as such. (United
States v. York (D.Conn. 1968) 281 F.Supp.
8, 14.)
- - - -
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- - - - - - - - - - - - - - -
n15 See,
e.g., Goesaert v. Cleary (1948) 335 U.S.
464 [93 L.Ed. 163, 69 S.Ct. 198], and
Muller v. Oregon (1908) 208 U.S. 412 [52
L.Ed. 551, 28 S.Ct. 324], both of which
were decided well before the recent and
major growth of public concern about and
opposition to sex discrimination. No
judge today would justify classification
based on sex by resort to such openly
biased and wholly chauvinistic statements
as this one made by Justice Brewer in
Muller: "[History] discloses the
fact that woman has always been dependent
upon man. He established his control at
the outset by superior physical strength,
and this control in various forms, with
diminishing intensity, has continued to
the present. As minors, though not to the
same extent, she has been looked upon in
the courts as needing especial care that
her rights may be preserved. . . . Though
limitations upon personal and contractual
rights may be removed by legislation,
there is that in her disposition and
habits of life which will operate against
a full assertion of those rights. . . .
Doubtless there are individual exceptions
. . . but looking at it from the
viewpoint of the effort to maintain an
independent position in life, she is not
upon an equality." (Id., at pp.
421-422 [52 L.Ed. at p. 556].)
- - - -
- - - - - - - - - - - - -End Footnotes- -
- - - - - - - - - - - - - - - [***38] An
analysis of classifications which the
Supreme Court has previously designated
as suspect reveals why sex is properly
placed among them. n16 Such
characteristics include race (see, e.g.,
Loving v. Virginia (1967) 388 U.S. 1, 9
[18 L.Ed.2d 1010, 1016, 87 S.Ct. 1817];
McLaughlin v. Florida (1964) 379 U.S.
184, 191-192 [13 L.Ed.2d 222, 227-229, 85
S.Ct. 283]), lineage or national origin
(see, e.g., Korematsu v. United States
(1944) 323 U.S. 214, 216 [89 L.Ed. 194,
198-199, 65 S.Ct. 193]; see also Sei
Fujii v. State of California (1952) 38
Cal.2d 718, 730 [242 P.2d 617]), alienage
(Takahashi v. Fish Comm. (1948) 334 U.S.
410, 420 [92 L.Ed. 1478, 1487-1488, 68
S.Ct. 1138]; Truax v. Raich, supra, 239
U.S. 33; Purdy & Fitzpatrick v. State
of California, supra, 71 Cal.2d 566,
579), and poverty, especially in
conjunction with criminal procedures
(see, e.g., Douglas v. California (1963)
372 U.S. 353, 356-357 [9 L.Ed.2d 811,
814-815, 83 S.Ct. 814]; Griffin v.
Illinois (1956) 351 U.S. 12, 17 [100
L.Ed. 891, 898, 76 S.Ct. 585]; see also,
In re Antazo, supra, 3 Cal.3d 100).
- - - -
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- - - - - - - - - - - - - - -
n16 See
also Note, Sex Discrimination and Equal
Protection: Do We Need a Constitutional
Amendment? (1971) 84 Harv.L.Rev. 1499,
1506-1516, for a recent and excellent
analysis of the proper standard of review
of classifications based on sex.
- - - -
- - - - - - - - - - - - -End Footnotes- -
- - - - - - - - - - - - - - - [***39]
Sex,
like race and lineage, is an immutable
trait, a status into which the class
members are locked by the accident of
birth. What differentiates sex from
nonsuspect statuses, such as intelligence
or physical disability, and aligns it
with the recognized suspect
classifications is that the
characteristic frequently bears no
relation to ability to perform or
contribute to society. (See Note:
Developments in the Law -- Equal
Protection, supra, 82 Harv.L.Rev. 1065,
1173-1174.) The result is that the whole
class is relegated to an inferior legal
status without regard to the capabilities
or characteristics of its individual
members. (See Karczewski v. Baltimore and
Ohio Railroad Company (N.D.Ill. 1967) 274
F.Supp. 169, 179.) Where the relation
between characteristic and evil to be
prevented is so tenuous, courts must look
closely at classifications based on that
characteristic lest outdated social
stereotypes result in invidious laws or
practices.
[*19]
Another characteristic which underlies
all suspect classifications is the stigma
of inferiority and second class
citizenship associated with them. (See
Note: Developments in the Law -- Equal
Protection, supra, [***40] 82 Harv.L.Rev.
1065, 1125-1127.) Women, like Negroes,
aliens, and the poor have historically
labored under severe legal and social
disabilities. Like black citizens, they
were, for many years, denied the right to
vote n17 and, until recently, the right
to serve on juries in many states. n18
They are excluded from or discriminated
against in employment and educational
opportunities. n19 [**541] Married women
in particular have been treated as
inferior persons in numerous laws
relating to property and independent
business ownership and the right to make
contracts. n20
- - - -
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- - - - - - - - - - - - - - -
n17 The
Nineteenth Amendment which gave women the
right to vote in national elections was
not passed until 1920. Women remain
underrepresented in federal and state
legislative bodies and in political party
leadership. (See, e.g., American Women,
Report of the President's Commission on
the Status of Women, supra, pp. 46-52;
Calderon v. City of Los Angeles (1971) 4
Cal.3d 251, 258, fn. 6 [93 Cal.Rptr. 361,
481 P.2d 489].)
n18
Women became eligible to serve on all
federal juries only by virtue of the
Civil Rights Act of 1957. It now appears
that women may not be denied the right to
serve on a jury (White v. Crook (M.D.Ala.
1966) 251 F.Supp. 401, 408), but the
United States Supreme Court has held that
a state may relieve women from jury
service unless they seek it out. (Hoyt v.
Florida (1961) 368 U.S. 57 [7 L.Ed.2d
118, 82 S.Ct. 159].) [***41]
n19 The
President's Task Force on Women, relying
on figures provided by the Bureau of the
Census and the Bureau of Labor
Statistics, reported the following:
"Sex bias takes a greater economic
toll than racial bias. The median
earnings of white men employed year-round
full-time is $ 7,396, of Negro men $
4,777, of white women, $ 4,279, of Negro
women $ 3,194. Women with some college
education, both white and Negro, earn
less than Negro men with 8 years of
education. [ para. ] Women head 1,723,000
impoverished families, Negro males head
820,000. One-quarter of all families
headed by white women are in poverty.
More than half of all headed by Negro
women are in poverty. Less than a quarter
of those headed by Negro males are in
poverty. Seven percent of those headed by
white males are in poverty. [ para. ] The
unemployment rate is higher among women
than men, among girls than boys. More
Negro women are unemployed than Negro
men, and almost as many white women as
white men are unemployed (most women on
welfare are not included in the
unemployment figures -- only those
actually seeking employment.)" (A
Matter of Simple Justice: The Report of
The President's Task Force on Women's
Rights and Responsibilities (1970) p. 18;
see also, Kanowitz, Women and The Law,
supra, pp. 100-101; Murray &
Eastwood, Jane Crow and the Law: Sex
Discrimination and Title VII (1965) 34
Geo.Wash.L.Rev. 232, 234.)
The
President's Commission on Women reports
that "substantial discrimination [in
education] does exist." It cites
higher admission standards for women than
men not only in graduate school but in
undergraduate schools as well. It states
that "Discrimination in education is
one of the most damaging injustices women
suffer. It denies them equal education
and equal employment opportunity,
contributing to a second class self
image." (A Matter of Simple Justice:
The Report of The President's Task Force
on Women's Rights and Responsibilities,
supra, p. 7; see also American Women:
Report of the President's Commission on
the Status of Women, supra, p. 11.)
[***42]
n20 See,
e.g., Kanowitz, Women and The Law, supra,
pp. 35-99; American Women: Report of the
President's Task Force on Women's Rights
and Responsibilities, supra, p. 47; cf.,
The California Sole Trader Statute, Code
of Civil Procedure sections 1811-1821,
which requires court approval before a
wife may engage in an independent
business.
- - - -
- - - - - - - - - - - - -End Footnotes- -
- - - - - - - - - - - - - - -
[*20]
Laws which disable women from full
participation in the political, business
and economic arenas are often
characterized as "protective"
and beneficial. Those same laws applied
to racial or ethnic minorities would
readily be recognized as invidious and
impermissible. The pedestal upon which
women have been placed has all too often,
upon closer inspection, been revealed as
a cage. We conclude that the sexual
classifications are properly treated as
suspect, particularly when those
classifications are made with respect to
a fundamental interest such as
employment.
We now
consider whether the state has
established a compelling state interest.
A number of state interests have been
urged for the classification created by
the statute. Two Court [***43] of Appeal
cases which uphold section 25656 against
equal protection challenge (Hargens v.
Alcoholic Bev. etc. App. Bd. (1968) 263
Cal.App.2d 601 [69 Cal.Rptr. 868]; People
v. Jemnez (1942) 49 Cal.App.2d Supp. 739
[121 P.2d 543]) suggest two interests
served by the statute; first that women
who do not have an interest by way of
ownership or marriage in the liquor
license will not be sufficiently
restrained from committing
"improprieties," and, second,
that women bartenders would be an
"unwholesome influence" on
young people and the general public.
[**542]
The first rationale rests upon the
peculiar and wholly unacceptable
generalization that women in bars,
unrestrained by husbands or the risk of
losing a liquor license, will commit
improper acts. This rationale fails as a
compelling state interest because it is
wholly arbitrary and without support in
logic or experience.
There is
no reason to believe that women
bartenders would have any less incentive
than male bartenders to obey the laws
governing the sale of alcoholic beverages
and the rules set down by their employers
in order to retain their jobs and promote
their own well-being. Nor is there
[***44] any basis for presuming that male
licensees, charged with overseeing their
establishments and carrying out their
responsibilities under the law, would be
less able to carry out these
responsibilities with respect to women
bartenders than to the male bartenders or
female cocktail waitresses the law
permits them to hire.
The
Legislature may, of course, pass laws to
prevent "improprieties" in
connection with the sale of alcoholic
beverages. It has, in fact, passed laws
aimed at the very evils which section
25656 allegedly prevents. (See, e.g.,
Bus. & Prof. Code, @ 25657, which
makes it a misdemeanor [*21] to employ
anyone to encourage the purchase of
alcoholic beverages; @ 24200 which
permits license revocation when
continuation of the license would be
contrary to public welfare or morals; and
@ 25601 which makes it a misdemeanor to
keep a disorderly house.) Where the evil
which the Legislature seeks to prevent
can be directly prevented through
nondiscriminatory legislation, and where
the class singled out by the Legislature
has no necessary connection with the evil
to be prevented, the statute must be
struck down as an invidious
discrimination against that class.
The
second [***45] rationale -- that women
bartenders would be an "unwholesome
influence" on the public -- is even
weaker than the first. The claim of
unwholesomeness is contradicted by
statutes which permit women to work as
cocktail waitresses, serve beer and wine
from behind a bar (Bus. & Prof. Code,
@ 25655), or tend bar if they or their
husbands hold a liquor license. The
objection appears to be based upon
notions of what is a "ladylike"
or proper pursuit for a woman in our
society rather than any ascertainable
evil effects of permitting women to labor
behind those "permanently affixed
fixtures" known as bars. Such
notions cannot justify discrimination
against women in employment.
Hargens
v. Alcoholic Bev. etc. App. Bd., supra,
263 Cal.App.2d 601 and People v. Jemnez,
supra, 49 Cal.App.2d Supp. 739, to the
extent that they conflict with the views
stated herein, are disapproved.
Finally,
the Attorney General argues that this
case is governed by Goesaert v. Cleary,
supra, 335 U.S. 464, which held
constitutional a Michigan statute
forbidding any female to act as bartender
unless she was the wife or daughter of
the male owner of a licensed liquor
establishment. The rationale [***46] for
the classification in that case was 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." (Id., at p.
466 [93 L.Ed. at p. 166].) This holding
ignores the obvious objection, raised in
the dissent, that a male owner, although
he is always absent from his bar, may
employ his wife and daughter while a
female owner may not work in a bar or
employ her daughter even though a man is
always present to keep the order.
Although
Goesaert has not been overruled, its
holding has been the subject of academic
criticism (Kanowitz, Women and The Law,
supra, pp. 33-34; Oldham, Sex
Discrimination and State Protective Laws
(1967) 44 Denver L.J. 344, 373-374); and
its sweeping statement that the states
are not constitutionally precluded from
"drawing a sharp line between the
sexes" (Goesaert v. Cleary, supra,
335 U.S. at p. 466 [**543] [93 L.Ed. at
p. 165]) has come under increasing
limitation. (See Paterson Tavern & G.
O. A. [*22] v. Borough of Hawthorne,
supra, 57 N.J. 180, 186 [270 A.2d 628,
630-631]; Seidenberg v. McSorleys'
[***47] Old Ale House, Inc. (S.D.N.Y.
1969) 308 F.Supp. 1253, 1260; United
States v. York, supra, 281 F.Supp. 8, 16;
White v. Crook, supra, 251 F.Supp. 401,
408.)
We need
not, however, speculate as to the
continuing validity of Goesaert. The
rationale for upholding the statute in
that case cannot sustain our statute.
Section 25656 does not preclude all women
from being bartenders or prohibit them
from bartending except where they are
under the supervision of a male relative.
It permits a female owner or sole
shareholder to tend bar. The
classification made by the section thus
cannot be justified on the basis of the
protection of female bartenders by their
male relatives and we can think of no
other legitimate state purpose to which
it is rationally related. (See McCrimmon
v. Daley (7th Cir. 1969) 418 F.2d 366,
369-370, which distinguishes Goesaert
where a Chicago ordinance permitted a
female licensee and her female employee
to tend bar.)
We
conclude that the classification created
by section 25656 is invidious and wholly
arbitrary. The state has not only failed
to establish a compelling interest served
by it, but it has failed to establish any
interest [***48] at all. Section 25656 is
unconstitutional under the equal
protection clauses of the state and
federal Constitutions.
For the
reasons stated, we find section 25656
invalid. Let the peremptory writ of
mandate issue compelling the Director of
the Department of Alcoholic Beverage
Control to cease license revocation
proceedings based upon section 25656 of
the Business and Professions Code and to
cease enforcement of the section.
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