IN THE ~uprrmr Qlnurt nf tfJr llluitrb &tntrs October Term, 1971 No. 70-75 MoosE LoDGE No. 107, Appellant, v. K. LEROY IRvis, and WILLIAM Z. ScoTT, Chairman, EDwiN WINNER, Member, and GEORGE R. BoRTZ, Member, LIQUOR CoNTROL BoARD, CoMMONWEALTH OF PENNSYLVANIA. On Appeal from the United States District Court for the Middle District of Pennsylvania MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND ANNEXED BRIEF AMICI CURIAE ON BEHALF OF AMERICAN JEWISH COMMITTEE, AMERICAN JEWISH CONGRESS and ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH SAMUEL RABINOVE 165 East 56th Street New York, New York 10022 Attorney for American Jewish Committee PAUL s. BERGER JosEPH B. RoBISON 15 East 84th Street New York, New York 10028 Attorneys for American Jewish Congress ARNOLD FoRSTER 315 Lexington Avenue New York, New York 10016 Attorney for Anti-Defamation League of B'nat B'rith PAUL HARTMAN JOSEPH Z. FLEMING JoSEPH B. RoBISON Of Counsel TABLE OF CONTENTS PAGE Motion 1 Brief in Support of Motion 5 Interest of the Amici 5 Statement of the Case 6 Question to ·which This Brief Is Addressed 8 Summary of Argument . 8 Argument Point One-The Pennsylvania Liquor Control Board violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by granting a liquor license to Appellant, a social club which engages in dis­ crimination based on race, and in failing to invalidate that license because of the discrimi- natory action .......... 10 A. The Requirement of ''State Action''. 10 B. The "State Action" Here .. 13 C. Application to Licensees Generally . 17 D. Discrimination on the Basis of Religion . 18 Point Two-The impairment, if any, of the consti­ tutional right to freedom of association by pro­ hibiting discrimination on the part of private clubs is outweighed by the destructive effect of such discrimination on the right to equal protection of the laws ............................ 23 Conclusion 29 I I TABLE OF AUTHORITIES PAGE Cases: Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 11 American Sugar Refining Co. v. Louisiana, 179 U.S. 89 (1900) . 19 Burton v. ·wilmington Parking Authority, 365 U.S. 715 (1961) .... 12, 14, 15, 16, 23 Cooper v. Aaron, 358 U.S. 1 (1958) 11 Daniel v. Paul, 395 U.S. 298 ( 1969) 16 Evans v. Newton, 382 U.S. 296 (1966) 11, 17, 23 Everson v. Board of Education, 330 U.S. 1 (1947) .. 20 Fowler v. Rhode Island, 345 U.S. 67 (1953) 21 Garner v. Louisana, 368 U.S. 157 (1961) . 17 Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.O.D. Cal. 1879) ································ .. .................... 19 In re Proceedings against Benevolent and Protective Order of Elks, Loyal Order of Moose and Fra­ ternal Order of Eagles, Massachusetts Liquor Au- thority, Decision April 7, 1971 . 15 Kotch v. Board of River Port Pilot Com 'rs, 330 U.S. 552 (1947) . .. ... ... .. .. .. .. .. ... ... 12 Lemon v. Kurtzman,-- U.S.--, decided June 28, 1971 (39' U.S.L.W. 4844) 21 Lombard v. State of Louisiana, 373 U.S. 269 (1963) . 11, 17 Loving v. Virginia, 388 U.S. 1 (196n .... 19, 22 Niemotko v. Maryland, 340 U.S. 268 (19'51) ············ .. 20,21 III PAGE Peterson v. City of Greenville, 373 U.S. 244 (1963) 11 Reitman v. :\Iulkey, 387 U.S. 369 (1967) 11, 17 Robinson v. State of Florida, 378 U.S. 153 (1964) . 11 Shelley v. Kraemer, 334 U.S. 1 (1948) 10,23 10 East 40th Street v. Callus, 325 U.S. 578 (1945) 18 United Public ·workers v. 2\Iitchell, 330 U.S. 75 (1947) 20 United States v. Guest, 383 U.S. 745 (1966) 10, 11 Ex parte Virginia, 100 U.S. 339 (1880) 22 vValz v. Tax Commission, 397 U.S. 664 (1970) 18 Statutes: Civil Rights Act of 1964, Titles II and VII ( 42 U.S.C. Sees. 2000a to 2000a-6 and Sees. 2000e to 2000e- 15) ... 22, 28 Civil Rights Act of 1968, Title VIII ( 42 U.S.C. Sees. 3601 to 3619) 22 43 Purdon's Pa. Stat. Annot., Sec. 952 . 15 47 Purdon's Pa. Stat. Annot., Sec. 1-104 14 47 Purdon's Pa. Stat. Annot., Sec. 4-471 14 Other Authorities: Abrams, Forbidden Neighbors (1955) . 23 Baltzell, E. Digby, ''The Club and the Corporate Elite: The Tail That Wags the Dog," The Prot­ estant Establishment-Aristocracy & Caste tn America (1964), Univ. of Penn. ... .............. 27 IV PAGE Forbes, March 15, 1971 25 Kiester, The Case of the 1VJissing Executive (1968) 25 Morris, "Better Than You"-Social Discrimination Against Jlinorities in America (1971) 26 National Advisory Commission on Civil Disorders, Report (1968) 28 Powell, Prof. Reed M., Race, Religion and the Promo- tion of the American Executive, Ohio State Uni- versity (1969) 25 Survey Research Center, Institute for Social Re­ search, Univ. of Michigan, Discrimination With­ out Prejudice, a Study of Promotion Practices in Industry ( 1964) . .. .. .. .. .. 24 IN THE §uprtttU' Q!nurt nf t4r llttttteb §tntes October Term, 1971 No. 70-75 MoosE LoDGE No. 107, Appellant, v. K. LEROY IRvrs, and WILLIAM Z. ScoTT, Chairman, EDwiN -WINNER, Member, and GEORGE R. BoRTz, Member, LIQUOR CoNTROL BoARD, CoMMONWEALTH OF PENNSYLVANIA. On Appeal from the United States District Court for the Middle District of Pennsylvania MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE ON BEHALF OF AMERICAN JEWISH COMMITTEE, AMERICAN JEWISH CONGRESS and ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH The undersigned as counsel for the above named or­ ganizations respectfully move this Court for leave to file the accompanying brief amici curia-e. The B 'nai B 'rith was founded in 1843 and established its Anti-Defamation Lea­ gue as its educational arm in 1913. The American Jewish Committee was founded in 1907. The American Jewish Congress was founded in 1918. All three of these organ­ izations are concerned with preservation of the security and constitutional rights of Jews in America through preservation of the rights of all Americans. They believe r--· - ..... 2 that the welfare of Jews in the United States is inseparably related to the extension of equal opportunity for all. This case raises an important issue under the Equal Protection Clause of the Fourteenth Amendment, involv­ ing a form of discrimination designed to protect the ulti­ mate bastions of privilege-the private clubs. If it were shown that a particular private club was no more than a gathering place for individuals for social purposes, and that it was devoid of any aspect of government assistance in its operations, it might be beyond the reach of the con­ stitutional prohibition of racial discrimination. But that is not the situation here. Appellant is an institution closely regulated by and benefiting from state action. Its opera­ tions are such that it has involved the government in par­ ticipation in the furtherance of its discriminatory prac­ tices. In the attached brief amici curiae, we seek to show that this kind of involvement is offensive to the Equal Protec­ tion Clause and its prohibition of discrimination through state action based on race or religion. We discuss spe­ cifically the comment of the court below which suggests a difference in application of the Equal Protection Clause to clubs that discriminate on the basis of race and those "which limit participation to those of a shared religious affiliation." Irvis v. Scott, 318 F. Supp. 1246, 1251 (1970). In addition, drawing on our knowledge of the economic impact on the Jewish community of discrimination by clubs, we show in the annexed brief that the effects of discrimination by clubs such as Appellant are not confined to their own borders. Exclusion from clubs on the basis 3 of race or religion results in substantial obstacles to equal opportunity and effective participation in our society. The arguments on these points in the annexed brief, drawn from the experience of these organizations in com­ batting discrimination, are offered in the hope that they will make a sig11ificant contribution to the resolution of the issues before this Court. We have sought the consent of the parties to the filing of this brief amici curiae. Consent has been >vithheld by counsel for both Appellant and Appellee. Therefore, pur­ suant to Rule 42 of the Re>·ised Rules of this Court, we move for leave to file our brief amici curiae, which is con­ ditionally attached hereto. Respectfully submitted, SA.'\IUEL RABI""OVE 165 East 56th Street New York, New York 10022 Attorney for .":! nu:rican Jewish Committee PAUL S. BERGER JosEPH B. RoBISON 15 East 84th Street New York, New York 10028 Attorneys for American Jewish Co11gress ARNOLD FORSTER 315 Lexington Avenue New York, New York 10016 Attorney for Anti-Defamation League of B'nai B'ritlz PAUL HARTMAN JOSEPH z. FLEMING JosEPH B. RoBISON Of Counsel July, 1971. IN THE ~uprrmr O.tnurt nf tl]r l!luttr~ ~tatrs October Term, 1971 No. 70-75 MoosE LoDGE No. 107, Appellant, 'V. K. LEROY lRvis, and \VILLIAM Z. ScoTT, Chairman, EDWIN WINNER, Member, and GEoRGE R. BoRTz, Member, LIQUOR CoNTROL BoARD, CoMMONWEALTH OF PENNSYLVANIA. On Appeal from the United States District Court for the Middle District of Pennsylvania BRIEF AMICI CURIAE OF THE AMERICAN JEWISH COMMITTEE, AMERICAN JEWISH CONGRESS and ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH This brief is submitted by the undersigned amici curiae conditionally upon the granting of the motion for leave to file to which it is attached. Interest of the Amici The interest of the amici is set forth in the attached motion for leave to file. [ 5 ] 6 Statement of the Case This is an appeal from the final decree of a three-judge District Court, entered on November 13, 1970, which in­ validated the club liquor license issued to Appellant by the Liquor Control Board of the Commonwealth of Penn­ sylvania.