Men lost a legal battle 37 years ago to keep women out of a famous Manhattan bar. Now that precedent could, ironically, help a New York lawyer win his case against nightclubs that offer lower prices and shorter waits to women.

In what may be the first constitutional challenge to “Ladies Night” promotions at clubs, Roy Den Hollander alleges the “practice of charging men more for admission than females or making it more timely or economically burdensome on men to gain admission violates the equal protection clause of the Fourteenth Amendment.”

The class-action complaint names six clubs as defendants and seeks injunctive relief and nominal damages on behalf of the “thousands” of men who have suffered “invidious discrimination” at those establishments.

A private business that is not a "state actor" cannot be sued for constitutional violations. Plaintiffs in other “Ladies Night” bias cases have sued under state civil-rights laws such as California's Unruh Act.

But Hollander is relying in part on the 1970 precedent in which a New York judge “found state action in the licensing of McSorleys' Old Ale House under the New York State Alcoholic Beverage Control Law” and upheld an equal protection claim against the bar for excluding women from its premises.

“[T]he state's involvement in the operation of defendant's business ... requires McSorleys' to comply with the proscriptions of the Fourteenth Amendment 'as certainly as though they were binding covenants written into the [license] itself,'” U.S. District Judge Walter R. Mansfield said in Seidenberg v. McSorleys' Old Ale House, 317 F. Supp. 593.

Mansfield distinguished McSorleys' from a private club, "which does not purport, and is not required, to serve the public." Two years later, the U.S. Supreme Court found a private club regulated by a state liquor board was not a state actor liable for discriminatory practices. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

According to Hollander, the defendants in his case are in the same legal boat as McSorleys' since “their operations are entwined with the New York State Division of Alcohol and Beverage Control and the New York City Consumer Affairs Department.” None of the nightclubs are private.

On the issue of “invidious discrimination,” Hollander will have to show the “Ladies Night” promotions are not “reasonably related to a legitimate purpose.” The Supreme Court held in Craig v. Boren, 429 U.S. 90 (1976), that the “gender-based differential” in an Oklahoma beer law discriminated against young men because it was not rationally related to traffic safety.

“[B]oth federal and state courts uniformly have declared the unconstitutionality of gender lines that restrain the activities of customers of state-regulated liquor establishments,” Justice William J. Brennan noted.

But do “Ladies Nights” really restrain male customers when the higher price they pay is no more than the regular established price? As the Illinois Appellate Court said in The Dock Club v. Illinois Liquor Control Comm'n, 428 N.E.2d 735 (1981), that price is “obviously not a price established for the purpose of discouraging [male] patronage.”

And, of course, the lower price for women is supposed to encourage the patronage of men.

By Matthew Heller
7/14/07