The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
Two determined ladies, both board members of the National Organization for Women ("NOW"), have brought this suit pursuant to 42 U.S.C. § 1983
challenging defendant's 115-year practice of catering to men only. They claim that defendant's refusal to serve women at its bar constitutes a denial of rights secured by the Equal Protection Clause of the Fourteenth Amendment.
Both parties have moved for summary judgment. For reasons stated in detail below, plaintiffs' motion is granted and defendant's denied.
The essential facts are not in dispute. Defendant McSorleys' Old Ale House, Inc. is a New York corporation operating a bar located at 15 East 7th Street in New York City. While food may be purchased on the premises, the complaint specified, and it is conceded, that McSorleys' is "primarily a bar which serves alcoholic and non-alcoholic beverages." On January 9, 1969, plaintiffs, unescorted by any male companions, entered McSorleys' and seated themselves at the bar. Their request for service was refused by the bartender, who informed them that it was McSorleys' policy, and had been for 114 years, to refuse to serve women under any conditions. Their repeated requests for service were met with similar refusals. Thereupon they were escorted by the bartender to the door and voluntarily departed, wisely choosing to stage this battle of the sexes in the courthouse rather than resort to militant tactics. Their action accords with the principle that an ale house, with its "nut-brown drafts," should be treated as a peaceful center and source of happiness, once described by Johnson as "the throne of human felicity."
On June 24, 1969, plaintiffs commenced this action under 42 U.S.C. § 1983, seeking both a declaratory judgment that defendant's refusal to serve women is illegal, discriminatory and unconstitutional, and an injunction against continuation of defendant's practice. Following Judge Tenney's denial of a motion to dismiss the complaint, 308 F. Supp. 1253 (S.D.N.Y. 1969), defendant filed its answer on December 15. These motions for summary judgment ensued.
Plaintiffs' action must stand or fall on the applicability of 42 U.S.C. § 1983. We are in accord with Judge Tenney's conclusion that § 201(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), guaranteeing to all persons the full and equal enjoyment of public accommodations without discrimination on account of race, color, religion or national origin, applies neither to discrimination on the basis of sex, DeCrow v. Hotel Syracuse Corp., 288 F. Supp. 530, 532 (N.D.N.Y. 1968), nor to discrimination in a bar or tavern whose principal business is the sale of alcoholic beverages rather than food. Cuevas v. Sdrales, 344 F.2d 1019, 1020-1023 (10th Cir. 1965), cert. denied, 382 U.S. 1014, 86 S. Ct. 625, 15 L. Ed. 2d 528 (1966).
It further appears that the sections of the New York Civil Rights Law dealing with discrimination in places of public accommodation on the basis of race, creed, color or national origin do not extend to discrimination on the basis of sex, and that a complaint virtually identical to that before us does not state a cause of action under that law. DeCrow v. Hotel Syracuse Corporation, 59 Misc. 2d 383, 298 N.Y.S. 2d 859 (Sup. Ct. 1969).
There being "no genuine issue of material fact" between the parties, 6 J. Moore, Federal Practice para. 56.04 (2d ed. 1966), plaintiffs are entitled to summary judgment if they can establish that defendant was acting under color of state law in its continuing practice of refusing service to women, and that such refusal has denied plaintiffs the equal protection of the laws secured by the Fourteenth Amendment to the Constitution.
Beginning with Mr. Justice Bradley's opinion for the Court in the Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883), the principle has become firmly embedded in our constitutional law that the Equal Protection Clause of the Fourteenth Amendment reaches "only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). No simple or precise test for distinguishing between state action and private action has, however, yet been devised, in spite of "eight decades of metaphysical writhing around the 'state action' doctrine" by both courts and commentators. Black, Foreword, The Supreme Court 1966 Term, 81 Harv. L. Rev. 69, 89 (1967). Justice Bradley stated only that the requirement was for "acts done under State authority," a standard met by "State action of every kind." 109 U.S. 3, at 13, 11, 3 S. Ct. 18, at 22, 21, 27 L. Ed. 835. The state involvement need not be exclusive or direct, United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966). It may occur through the action of a state's executive body, its administrative and regulatory agencies, its legislature, or its courts. Lombard v. Louisiana, 373 U.S. 267, 273, 83 S. Ct. 1122, 10 L. Ed. 2d 338 (1963); Robinson v. Florida, 378 U.S. 153, 156, 84 S. Ct. 1693, 12 L. Ed. 2d 771 (1964); Avery v. Midland County, 390 U.S. 474, 479, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968); Shelley v. Kraemer, 334 U.S. 1, 14-15, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). The state need not expressly or specifically authorize, command or support the discriminatory conduct. Where the state has become sufficiently involved, its inaction, acquiescence or continuation of its involvement under circumstances where it could withdraw, may be sufficient. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
Accordingly the issue has usually been resolved -- almost always in favor of finding state action -- by reference to the kind and degree of state involvement alleged. The issue has been posed in terms of whether "to some significant extent the State in any of its manifestations" has become involved in the discriminatory practice under attack. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961) (emphasis added). No recasting of formulas, however, can simplify the inherent complexities in application of the state action requirement. As Mr. Justice Clark wrote in Burton:
"Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' [citation omitted] Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." (365 U.S. at 722, 81 S. Ct. at 860)
See also Reitman v. Mulkey, 387 U.S. 369, 378, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967).
In approaching the task of "sifting facts and weighing circumstances," it is important to consider the purpose and function of the state action limitation. A finding of no state action does not eliminate the discrimination; it is a determination that regardless of the discrimination the Federal Government is not to be permitted to interfere. The function of the state action concept is to bar the Fourteenth Amendment from being used to govern purely private life and private decisions. The right of equal protection must be balanced against the countervailing rights of individual freedom of association and freedom of choice that govern in private matters. A person still has the right to invite to his home only those guests whom he or she chooses, whether they be all black, white, men, women, old or young. Under the Fourth Amendment a person's home remains his or her castle. Likewise, that person may, in a private transaction, sell his belongings to whomever he pleases. But once a property, facility or transaction becomes significantly impregnated with a state character the Equal Protection Clause controls. Burton v. Wilmington Parking Authority, supra.
In determining whether state involvement has risen to the level of "significance" for state action purposes, therefore, inquiry should focus upon the alleged sphere of privacy and autonomy in need of protection from federal intervention, as well as upon the customary search for some causal relation, however tenuous, between state activity and the discrimination alleged. For instance, a state lessee may not exclude black persons from its restaurant. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). The use of state courts to enforce purely private easements by owners of land prohibiting black occupancy has been held to constitute state action. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). If the state engages in conduct having the effect of encouraging, tolerating or acquiescing in the discrimination, the Fourteenth Amendment may be invoked. Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967).
Turning to the case before us, we are asked to find state action in the licensing of McSorleys' Old Ale House under the New York State Alcoholic Beverage Control Law. No other state involvement in the policy complained of is alleged by plaintiffs. There was no state enforcement of the refusal to serve, cf. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948); Griffin v. Maryland, 378 U.S. 130, 84 S. Ct. 1770, 12 L. Ed. 2d 754 (1964), no use of state property, cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961); Boman v. Birmingham Transit Co., 280 F.2d 531 (5th Cir. 1960), 292 F.2d 4 (5th Cir. 1961), and no performance of a governmental function, cf. Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966), or the like.
The Supreme Court has never passed upon a licensing theory of state action, although two Justices have expressed conflicting views on the matter. Compare Garner v. Louisiana, 368 U.S. 157, 184-185, 82 S. Ct. 248, 7 L. Ed. 2d 207 (1961) (Douglas, J., concurring); Lombard v. Louisiana, 373 U.S. 267, 281-283, 83 S. Ct. 1122, 10 L. Ed. 2d 338 (1963) (Douglas, J., concurring); and Reitman v. Mulkey, 387 U.S. 369, 384-386, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967) (Douglas, J., concurring), with Bell v. Maryland, 378 U.S. 226, 333, 84 S. Ct. 1814, 12 L. Ed. 2d 822 (1964) (Black, J., dissenting). The reasoning in favor of finding state action is that the state license enables the private licensee to engage in discriminatory conduct in the exercise of its franchise rights. To put it another way, without the state license to serve beer, defendant here could never have discriminated in the sale of beer. The license, it is argued, becomes a license to discriminate. See Justice Douglas' concurring opinions in Garner, Lombard and Reitman, supra. The opposing view is that in the absence of further evidence the license neither relates to nor authorizes discrimination in the exercise of the rights granted. It does not constitute the licensee an administrative agency of the state, ...