[p179] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL joins, dissenting.
My view of the First Amendment and the related guarantees of the Bill of Rights is that they create a zone of privacy which precludes government from interfering with private clubs or groups.[1] The associational [p180] rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians to join or come as guests is constitutionally irrelevant, as is the decision of the Black Muslims to admit to their services only members of their race.
The problem is different, however, where the public domain is concerned. I have indicated in Garner v. Louisiana, 368 U.S. 157, and Lombard v. Louisiana, 373 U.S. 267, that where restaurants or other facilities serving the public are concerned and licenses are obtained from the State for operating the business, the "public" may not be defined by the proprietor to include only people of his choice; nor may a state or municipal service be granted only to some. Evans v. Newton, 382 U.S. 296, 298-299.
Those cases are not precisely apposite, however, for a private club, by definition, is not in the public domain. And the fact that a private club gets some kind of permit from the State or municipality does not make it ipso facto a public enterprise or undertaking, any more than the grant to a householder of a permit to operate an incinerator puts the householder in the public domain. We must, therefore, examine whether there are special circumstances involved in the Pennsylvania scheme which differentiate the liquor license possessed by Moose Lodge from the incinerator permit.
[p181] Pennsylvania has a state store system of alcohol distribution. Resale is permitted by hotels, restaurants, and private clubs which all must obtain licenses from the Liquor Control Board. The scheme of regulation is complete and pervasive; and the state courts have sustained many restrictions on the licensees. See Tahiti Bar Inc. v. Liquor License Case, 395 Pa. 355, 150 A. 2d 112. Once a license is issued the licensee must comply with many detailed requirements or risk suspension or revocation of the license. Among these requirements is Regulation § 113.09 which says: "Every club licensee shall adhere to all of the provisions of its Constitution and By-laws." This regulation means, as applied to Moose Lodge, that it must adhere to the racially discriminatory provision of the Constitution of its Supreme Lodge that "[t]he membership of lodges shall be comprised of male persons of the Caucasian or White race, who are of good moral character, physically and mentally normal, who shall profess a belief in a Supreme Being."
It is argued that this regulation only aims at the prevention and subterfuge and at enforcing Pennsylvania's differentiation between places of public accommodation and bona fide private clubs. It is also argued that the regulation only gives effect to the constitutionally protected rights of privacy and of association. But I cannot so read the regulation. While those other purposes are embraced in it, so is the restrictive membership clause. And we have held that "a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act." Adickes v. Kress & Co., 398 U.S. 144, 170. See Peterson v. City of Greenville, 373 U.S. 244, 248. It is irrelevant whether the law is statutory, or an administrative regulation. Robinson v. Florida, 378 U.S. 153, 156. And it is irrelevant whether the discriminatory act was instigated by the regulation, [p182] or was independent of it. Peterson v. City of Greenville, supra. The result, as I see it, is the same as though Pennsylvania had put into its liquor licenses a provision that the license may not be used to dispense liquor to blacks, browns, yellows—or atheists or agnostics. Regulation § 113.09 is thus an invidious form of state action.
Were this regulation the only infirmity in Pennsylvania's licensing scheme, I would perhaps agree with the majority that the appropriate relief would be a decree enjoining its enforcement. But there is another flaw in the scheme not so easily cured. Liquor licenses in Pennsylvania, unlike driver's licenses, or marriage licenses, are not freely available to those to meet racially neutral qualifications. There is a complex quota system, which the majority accurately describes. Ante, at 176. What the majority neglects to say is that the quota for Harrisburg, where Moose Lodge No. 107 is located, has been full for many years.[2] No more club licenses may be issued in that city.
This state-enforced scarcity of licenses restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week.[3] Access by blacks to places that [p183] serve liquor is further limited by the fact that the state quota is filled. A group desiring to form a nondiscriminatory club which would serve blacks must purchase a license held by an existing club, which can exact a monopoly price for the transfer. The availability of such a license is speculative at best, however, for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed to survive.
Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination.
As the first Justice Harlan, dissenting in the Civil Rights Cases, 109 U.S. 3, 59, said:
"I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern.... What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently... with the freedom established by the fundamental law... discriminate against freemen or citizens, in those rights, because of their race...."
The regulation governing this liquor license has in it that precise infirmity.[4]
I would affirm the judgment below.
Notes
edit- ↑ It has been stipulated that Moose Lodge No. 107 "is, in all respects, private in nature and does not appear to have any public characteristics." App. 23. The cause below was tried solely on the theory that granting a Pennsylvania liquor license to a club assumed to be purely private was sufficient state involvement to trigger the Equal Protection Clause. There was no occasion to consider the question whether, perhaps because of a role as a center of community activity, Moose Lodge No. 107 was in fact "private" for equal protection purposes. The decision today, therefore, leaves this question open. See Comment, Current Developments, in State Action and Equal Protection of the Law, 4 Gonzaga L. Rev. 233, 271-286.
- ↑ Indeed, the quota is more than full, as a result of a grandfather clause in the law limiting licenses to one per 1,500 inhabitants. Act No, 702 of Dec. 17, 1959, § 2, There are presently 115 licenses in effect in Harrisburg, and based on 1970 census figures, the quota would be 45.
- ↑ Hotels and restaurants may serve liquor between 7 a.m. and 2 a.m. the next day, Monday through Saturday. On Sunday, such licenses are restricted to sales between 12 p.m. and 2 a.m., and between 1 p.m. and 10 p.m. Pennsylvania Liquor Code, § 406 (a). Thus, such licensees may serve a total of 123 hours per week. Club licensees, however, are permitted to sell liquor to members and guests from 7 a.m. to 3 a.m. the next day, seven days a week. Ibid. The total hours of sale permitted club licensees are 140, 17 more than are permitted hotels and restaurants. (There is an additional restriction on election-day sales as to which only club licensees are exempt. Ibid.)
- ↑ The majority asserts that appellee Irvis had "standing" only to challenge Moose Lodge's guest-service practices, not its membership policies, on the theory that his "injury... stemmed, not from the lodge's membership requirements, but from its policies with respect to the serving of guests of members." Ante, at 166. I submit that appellee's standing is not so confined.
- A litigant has standing, for purposes of the Art. III "case" or "controversy" requirement, if he "alleges that the challenged action has caused him injury in fact, economic or otherwise." Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152. When Moose Lodge refused service to appellee Irvis solely because of his race, it imposed upon him a special disability apart from that suffered by the population at large. If this discrimination is chargeable to the State, Irvis has standing, not only to challenge Moose Lodge's guest policies—the immediate cause of the harm—but also to challenge the state scheme which authorized these policies. For an individual "subjected by statute to special disabilities necessarily has... a substantial, immediate, and real interest in the validity of the statute which imposes the disability." Evers v. Dwyer, 358 U.S. 202, 204.
- Moreover, once called into question, all discrimination authorized by the scheme is at issue. Just as a federal court may order an entire school desegregated upon the petition of a litigant representing only the fifth grade, so could the court below cure the invidious discrimination it found to exist in Pennsylvania's liquor licensing scheme upon the petition of a litigant injured only by one aspect of that discrimination. The root evil was that Irvis was discriminated against with the blessing of the State, not that he was discriminated against qua "guest" or "member." In my view, moreover, a black Pennsylvanian suffers cognizable injury when the State supports and encourages the maintenance of a system of segregated fraternal organizations, whether or not he himself had sought membership in or had been refused service by such an organization, just as a black Pennsylvanian would suffer cognizable injury if the State were to enforce a segregated bus system, whether or not he had ever ridden or ever intended to ride on such a bus. Cf. Evers v. Dwyer, supra. American culture and history have been so plagued with racism and discrimination that it is clear beyond doubt that in such circumstances blacks suffer "injury in fact." It "is practically a brand upon them, affixed, by the law, an assertion of. their inferiority, and a stimulant to... race prejudice...." Strauder v. West Virginia, 100 U.S. 303, 308. Their stake is analogous to the "spiritual stake" in First Amendment values which we have held may give standing to raise claims under the Establishment Clause and Free Exercise Clause. See Flast v. Cohen, 392 U.S. 83.
- Thus, whether state action be found in Regulation § 113.09, in Pennsylvania's creation of a monopoly which operates to restrict access to places in which blacks may be served liquor, or both, appellee Irvis has standing to challenge all aspects of the discriminatory scheme.