Moose Lodge v. Irvis

Moose Lodge v. Irvis, 407 U.S. 163 (1972), argued 28 Feb. 1972, decided 12 June 1972 by vote of 6 to 3; Rehnquist for the Court, Douglas, Brennan, and Marshall in dissent. Irvis, an African‐American man, was refused service as the guest of a member of the Moose Lodge in Harrisburg, Pennsylvania. The Pennsylvania Liquor Control Board had issued the Moose Lodge a private club license to dispense liquor, and Irvis contended that this involvement of the state in the racially discriminatory policy of the lodge constituted discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment. Irvis successfully brought suit in federal court against the state liquor authority and the Moose Lodge, winning an injunction that required the liquor authority to suspend the lodge's liquor license as long it continued to discriminate in its guest policies.

On appeal the Supreme Court reversed, holding that there was insufficient governmental involvement by the state of Pennsylvania in the racially discriminatory policies of the Moose Lodge to constitute a violation of the Equal Protection Clause. Justice William Rehnquist noted that the Court had held in the Civil Rights Cases (1883) that the Equal Protection Clause prohibited only racial discrimination supported by state action. Under the state action doctrine, acts of racial discrimination resulting from the choices of private individuals and unsupported by any official sanction did not fall within the prohibition of the Equal Protection Clause. The mere licensing of the lodge to dispense liquor and the regulations of the liquor trade enforced by the state, the Court held, did not constitute the official support of the racial discrimination practiced by the lodge necessary to bring its racial policies within the prohibition of the Equal Protection Clause.

The Court additionally distinguished its earlier decision in Burton v. Wilmington Parking Authority (1961). In Burton, the Court had held that the Equal Protection Clause did apply to racial discrimination practiced by a private restaurant that leased its premises from a parking facility owned and financed by the city of Wilmington, Delaware. The circumstances in the Moose Lodge case differed from those in Burton, the Court pointed out, because the Moose Lodge was located on land and housed in a building owned by the lodge and not by any public authority. Furthermore, the Court held that the liquor license alone did not constitute the kind of “interdependence” between the state and the lodge that had characterized the relationship between the restaurant and the parking authority in Burton. Pennsylvania law required that liquor license recipients adhere to all the provisions of their own constitutions and bylaws. At the time Irvis was denied service as a guest, the Moose Lodge constitution only prohibited accepting African‐Americans as members. Inexplicably, while the lawsuit was pending, the lodge amended its constitution to prohibit serving African‐Americans as guests as well. This entitled Irvis to a decree enjoining the Liquor Control Board from enforcing its regulation requiring recipients to adhere to their own constitutions, Rehnquist held, but not to an injunction dissolving the license itself. Since the liquor board had made no effort to enforce its rule, however, this was a meaningless concession by the Court. So long as the state made no enforcement effort, the lodge, as a private club, was entitled to refuse service to whomever it pleased.

Justice William O. Douglas, in a dissent joined by Justice Thurgood Marshall, agreed that merely issuing a liquor license to a private club with racially discriminatory membership and guest policies might not be sufficient to make the lodge's discrimination unconstitutional. But, Douglas noted, liquor licenses in Pennsylvania were subject to a quota system, and the quota for Harrisburg had been filled for many years. The state‐enforced scarcity of liquor licenses thus resulted in restricting the access of African‐Americans to liquor, since liquor was available only at private clubs for significant portions of each week. Douglas concluded that the state had in this way put the weight of its liquor licensing and regulatory practices in support of racial discrimination.

Justice William J. Brennan, also joined by Marshall, additionally argued that the state's regulatory scheme for liquor was so intertwined with the racially discriminatory policies of the Moose Lodge as to justify a finding that there was state support for racial discrimination and thus a violation of the Equal Protection Clause.

Moose Lodge marked the end of an expansion of the state action doctrine, which had begun with Shelley v. Kraemer (1948) and continued with Burton and subsequent “sit‐in” cases of the 1960s, designed to subject private discrimination to the prohibitions of the Fourteenth Amendment.

See also Race and Racism; State Action.

Richard C. Cortner