Wednesday, September 1, 2010

Ladies Nights?

Are "Ladies' Nights" - - - when a bar or nightspot offers women lower rates than men - - - unconstitutional as a violation of equal protection?

Copacabana To even consider that issue, the threshold of state action has to be satisfied.  In an opinion issued today, the Second Circuit easily concluded that there is no state action.  The per curiam opinion in Hollander v. Copacabana applied the Lugar test, from Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).  Additionally, the panel found that the holding in Moose Lodge v. Irvis, 407 U.S. 163 (1972), in which the Court found that there was no state action by Moose Lodge despite the existence of a pervasive regulatory scheme governing the Lodge's liquor license, directly refuted the plaintiff's claim.

As the panel noted, the plaintiff has attributed these pernicious “Ladies’ Nights"  to "40 years of lobbying and intimidation, [by] the special interest group called  ‘Feminism’ [which] has succeeded in creating a customary practice. . . of invidious discrimination of men.”   This same plaintiff, an attorney proceeding pro se, who has previously sued Columbia University's Institute for Research and Gender at Columbia University, argued not only that he had standing but that feminism was a religion, claims rejected by the federal court; the private status of Columbia University would also raise a state action barrier.

[image via]

RR    (H/T Nate Teadwell)

Cases and Case Materials, Equal Protection, Gender, State Action Doctrine | Permalink

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Why does the complaint have to rise to the level of a constitutional argument? Are there not state statutes that prohibit discrimination on the basis of gender in public accommodations?

Posted by: eli bortman | Sep 2, 2010 8:24:19 AM

Dear Eli:

Yes, there are state statutes (as well as city ordinances) that are applicable to gender/sex discrimination. However, the complaint was filed in federal court making a constitutional claim.

Posted by: RR | Sep 2, 2010 2:22:48 PM

Perhaps I was too subtle. Isn't this a case where counsel could have done a better job for the client? Perhaps it illustrates the adage that a lawyer who represents herself has a fool for a client.

Posted by: eli bortman | Sep 2, 2010 2:30:19 PM

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