Today in Feminist History: U.S. Supreme Court Upholds Sex Discrimination Law (December 20, 1948)

Today in Feminist History is our daily recap of the major milestones and minor advancements that shaped women’s history in the U.S.—from suffrage to Shirley Chisholm and beyond. These posts were written by, and are presented in homage to, our late staff historian and archivist, David Dismore.

Yet another reason why the Equal Rights Amendment is needed was shown today when the U.S. Supreme Court upheld a Michigan law which clearly discriminates on the basis of sex.

Even worse, the opinion assured State legislatures that the Court will uphold the practice of barring all women from entire occupations, and overturn only laws which make what the Court feels are “irrational” classifications that would allow some women, and not others, to work in a certain profession.

The case, Goesaert v. Cleary (335 U.S. 464) involved four women (Valentine and Margaret Goesaert, Gertrude Nadroski and Caroline McMahon) who wanted to bartend in Michigan. In that State, all bartenders in cities of over 50,000 are required to be licensed, but no woman may be given a license unless she is the wife or daughter of the male owner. The law was challenged on the ground that under the Equal Protection Clause of the 14th Amendment, “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.” But according to six of the nine Justices, with Justice Felix Frankfurter writing the opinion for the majority, the State is free to do exactly that:

“Beguiling as the subject is, it need not detain us long. To ask whether 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 non-owners, is one if 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. The Fourteenth Amendment did not tear history up by the roots, and the regulation of liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond all question, forbid all women from working behind a bar. This is so despite the vast changes 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 liquor traffic. 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 laws as though they were the same.’ Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventative 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 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 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. State of Oklahoma ex. rel. Williamson, 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 intends to produce.’ Roschen v. Ward, 279 U.S. 337, 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 was assailed. Judgment affirmed.”

But three Justices disagreed, with Justice Wiley Blount Rutledge writing the dissent, joined by Justices William O. Douglas and Frank Murphy:

“While the equal protection clause does not require a legislature to achieve ‘abstract symmetry’ or to classify with ‘mathematical nicety,’ that clause does require lawmakers to refrain from invidious distinctions of the sort drawn by the statute challenged in this case.

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. The inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being 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.”

It has been 75 years since the Supreme Court ruled in the case of Bradwell v. State of Illinois (83 U.S. 130) that Illinois had the right to bar women from the practice of law. In his concurring opinion, Justice Joseph P. Bradley noted:

“The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and function of womanhood.”

Justice Bradley went on to say:

“The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator, and the rules of civil society must be adapted to the general constitution of things, and cannot be based on exceptional cases.”

Apparently not much has changed in three quarters of a century. Six of the nine current Justices still think that stereotypes about “delicate” women who need the “protection” of fathers or husbands to work in back of a bar, but not in front of one, are rational and acceptable justifications for bias, and that absolute bans on all women in various professions are on totally solid legal ground. If we are not to still be arguing against such nonsense 75 years from now, passage of the Equal Rights Amendment is needed. It was introduced to Congress 25 years ago, reworded in 1943, and would enshrine these words in the Constitution:

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Passage of the E.R.A. by 2/3 of Congress and ratification by 3/4 of the States would give the Justices the kind of guidance they clearly could not find in the 14th Amendment, and fulfill the pledge of equality made exactly a century ago this year by the feminist pioneers at Seneca Falls.


David Dismore is the archivist for the Feminist Majority Foundation. His journey from would-be weather forecaster to full-time feminist began with the powerful impression made by a photo and a few paragraphs about the suffragists in his high school history textbook; years later, he had his first encounter with NOW—in which he carefully peeked in a window before opening the door to be sure men were allowed. He was eventually active in the ERA extension campaign of 1978, embarked on a cross-country bikeathon for it in 1982 and even worked for pioneers Toni Carabillo and Judith Meuli.