Petitioners, holders of on-sale liquor licenses, seek a writ of mandate to prevent the Department of Alcoholic Beverage Control from revoking their licenses because they hired women bartenders, contrary to the prohibition contained in section 25656 of the Business and Professions Code.
Petitioners challenge the constitutionality of the statute on its face; no material facts are disputed.
The writ of mandate "may be issued by any court ... to any inferior tribunal, corporation, board, or person ... to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person." (Italics added.) (Code Civ. Proc., § 1085.) In a number of cases, mandamus has been held to issue to prohibit official conduct where prohibition would not lie because the threatened official act was not judicial but ministerial in nature. (Miller v. Greiner, 60 Cal.2d 827, 830 [36 Cal.Rptr. 737, 389 P.2d 129]; Perry v. Jordan, 34 Cal.2d 87 [207 P.2d 47]; Evans v. Superior Court, 20 Cal.2d 186 [124 P.2d 820]; see 3 Witkin, Cal. Procedure (1954) § 77, pp. 2575-2577.)
I. SECTION 18 OF ARTICLE XX OF THE STATE CONSTITUTION
Article XX, section 18 of the California Constitution provides that "[a] person may not be disqualified because of sex, from entering or pursuing a lawful business, vocation, or profession."
Well before the turn of the century this court enunciated the meaning and effect to be given this section of the Constitution in a case quite similar to the instant one. Matter of Maguire, supra, 57 Cal. 604, held that a San Francisco ordinance which prohibited women from waiting on customers between 6 p.m. and 6 a.m. in a place where liquor was sold conflicted with section 18.
Justice Thornton, expressing the opinion of three of the four justices in the majority, said: "As we understand the section, it does establish, as the permanent and settled rule and policy of this State, that there shall be no legislation either directly or indirectly incapacitating or disabling a woman from entering on or pursuing any business, vocation, or profession permitted by law to be entered on and pursued by those sometimes designated as the stronger sex.... [T]here are no exceptions in this section, and neither we nor any other power in the State have the right or authority to insert any, whether on the ground of immorality or any other ground. All these are considerations of policy, the determination of which belonged to the convention framing and the people adopting the Constitution; and their final and conclusive judgment has been expressed and entered in the clear and unmistakable language of the Constitution itself, ..." (Italics added.) (Matter of Maguire, supra, 57 Cal. at p. 608.)
If section 18 is to be endowed with any force and meaning it must invalidate section 25656. It is clear that bartending is a lawful vocation, that women are as capable of mixing drinks as men, and that section 25656 nonetheless disqualifies the vast majority of women from entering the bartending occupation.
The Attorney General makes two arguments based on the notion that women are incapable of tending bar. First, he suggests that the Legislature may have concluded that a male bartender or owner must be present in a liquor establishment to preserve order and protect patrons, a function which he contends a woman could not perform. This argument ignores modern day reality. Today most bars, unlike the saloons of the Old West, are relatively quiet, orderly and respectable places patronized by both men and women. Even if they were not, many bars employ bouncers whose sole job is to keep order in the establishment. Furthermore, the experience in the states which permit women to tend bar indicates that the dire moral and social problems predicted by the Attorney General do not arise. (See, e.g., Paterson Tavern & G.O.A. v. Borough of Hawthorne (1970) 57 N.J. 180, 186 [270 A.2d 628, 631]; Anderson v. City of St. Paul (1948) 226 Minn. 186, 209 [32 N.W.2d 538, 550-551] (dissenting opinion by Loring, C.J.).)
Second, the Attorney General argues that the statute was designed to protect women since fewer women can be injured by inebriated customers if they are not permitted to work behind a bar. It is difficult to believe that women working behind the bar would be more subject to such dangers than the cocktail waitresses who are now permitted to work among the customers.
But even if we assume that bartending is more dangerous than waiting on tables, there is no evidence that women bartenders are more likely than male bartenders to suffer injury at the hands of customers. The desire to protect women from the general hazards inherent in many occupations cannot be a valid ground for excluding them from those occupations under
We reiterate what Justice Thornton said so long ago in Maguire in response to the contention that permitting women to serve drinks leads to immorality: "[T]he law-making power of the State is ample to make laws affecting both sexes alike, and not inhibited by the Constitution, which will accomplish the object so much desired — to prevent practices hurtful to public morality. The Constitution was not framed with a disregard of the important considerations urged upon us in this regard. It merely directs that a law which is framed to accomplish this object by affecting or operating upon lawful callings, shall affect both sexes alike." (Matter of Maguire, supra, 57 Cal. at p. 609.)
II. THE 1964 CIVIL RIGHTS ACT
Petitioners urge that section 25656 conflicts with the nondiscriminatory hiring provision contained in title VII of the federal Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-2(a)).
The Attorney General urges, however, that the federal Civil Rights Act does not apply because section 2 of the Twenty-first Amendment to the United States Constitution precludes federal interference with state regulation of alcoholic beverages. Section 2 provides that "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." (Italics added.) The Attorney General contends that this amendment "cedes vast plenary powers" to the states to regulate alcoholic beverages "unfettered" by the commerce clause. Since the 1964 Civil Rights Act was passed pursuant to Congress' commerce clause power, it is contended that a state's power to regulate liquor is also unfettered by the 1964 Civil Rights Act.
This argument must fail. The Twenty-first Amendment clearly was not intended to work such a wholesale "repeal" of the commerce clause in the area of alcoholic beverage control. When national prohibition was terminated by section 1 of the Twenty-first Amendment, section 2 was added as a "saving clause" to protect the laws of states which chose to retain prohibition against a possible conflict with the commerce clause. (See United States v. Colorado Wholesale W. & Liq. Deal. Ass'n. (D.Colo. 1942) 47 F.Supp. 160, 162, revd. 144 F.2d 824, revd. 324 U.S. 293 [89 L.Ed. 951, 65 S.Ct. 661]; Joseph Triner Corporation v. Arundel (D.Minn. 1935) 11 F.Supp. 145, 146-147.) The language of the amendment clearly reflects the purpose, since it prohibits the importation or transporting of liquor only into states where such importation will be in violation of the laws thereof.
Section 2 represents the incorporation of a somewhat narrowed version of the Webb-Kenyon Act (37 Stats. 699, 27 U.S.C.A. § 122 (1913)) into the Constitution. (Washington Brewers Institute v. United States (9th Cir.1943) 137 F.2d 964, 967, cert. den. 320 U.S. 776 [88 L.Ed. 465, 64 S.Ct. 89]; Note, The Twenty-First Amendment Versus the Interstate Commerce Clause (1946) 55 Yale L.J. 815, 816-818.) The Webb-Kenyon Act was passed in 1913 under the title "[a]n Act divesting intoxicating liquors of their interstate character in certain cases." Its purpose was to "`prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in States contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught.'" (Seaboard Air Line Ry.
Although some early cases painted state powers under section 2 of the Twenty-first Amendment with a broad brush, later decisions have taken a position more in keeping with the original intent of the amendment. (See, e.g., Seagram & Sons v. Hostetter (1966) 384 U.S. 35, 42 [16 L.Ed.2d 336, 342, 86 S.Ct. 1254]; Hostetter v. Idlewild Liquor Corp. (1964) 377 U.S. 324 [12 L.Ed.2d 350, 84 S.Ct. 1293].) In Hostetter v. Idlewild Liquor Corp., supra, the Supreme Court restated the effect of the Twenty-first Amendment: "`Since the Twenty-first Amendment ... the right of a state to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause.'" (Italics added.) (Id., at p. 330 [12 L.Ed.2d at p. 355].) The court rejected the argument that the Twenty-first Amendment gave the states plenary power over alcoholic beverages: "To draw a conclusion ... that the Twenty-first Amendment has somehow operated to `repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned would ... be an absurd oversimplification. If the Commerce Clause had been pro tanto `repealed,' then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre and is demonstrably incorrect." (Id., at pp. 331-332 [12 L.Ed.2d at p. 356].)
The court then went on to declare that "[b]oth the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." (Id., at p. 332 [12 L.Ed.2d at p. 356].)
Section 25656 is not even tangentially related to "transportation or importation" of liquor into California, and therefore does not fall within the literal language of the Twenty-first Amendment. The statute merely
But even if the amendment were broadly construed to cover all state laws regulating the liquor business, the interests and issues at stake in employment discrimination cases present no conflict with the intent and purposes of the Twenty-first Amendment.
We turn to the question whether section 25656 is in direct conflict with section 2000e-2 of the Civil Rights Act of 1964. (42 U.S.C.A. § 2000e-2.)
Section 2000e-2(a) makes it unlawful to hire or to "limit, segregate, or classify" employees in any way which would tend to deprive an employee of employment opportunities on the basis of sex.
In determining whether prohibiting women from tending bar falls within the bona fide occupational qualification exception to the federal statute, we are necessarily influenced by the guidelines promulgated by the Equal Employment Opportunity Commission. (29 C.F.R. § 1604.1.)
Courts, following the guidelines, have invalidated weight-lifting restrictions for women (Bowe v. Colgate-Palmolive Company (7th Cir.1969) 416 F.2d 711; Richards v. Griffith Rubber Mills, supra, 300 F.Supp. 338; Rosenfeld v. Southern Pacific Company, supra, 293 F.Supp. 1219), hours limitations (Caterpillar Tractor Co. v. Grabiec (S.D.Ill. 1970) 317 F.Supp. 1304) and exclusionary job categories (Weeks v. Southern Bell Telephone & Telegraph Company, supra, 408 F.2d 228 (switchman); McCrimmon v. Daley (E.D.Ill. 1970) 2 F.E.P. Cases 971 (barmaid ordinance)). McCrimmon specifically held that a Chicago ordinance permitting only women liquor licensees, or the wives, daughters, sisters or mothers of licensees to tend bar conflicts with title VII of the Civil Rights Act.
Applying these standards to section 25656, we must hold that that statute is not based upon a bona fide occupational qualification necessary to the operation of a bar and is therefore in direct conflict with section 2000e-2 of the Civil Rights Act.
Certainly, as we state above, women as a class are as capable as men of mixing drinks and are permitted to do so in many states. The technical capabilities of women are not, however, at issue here. The Legislature concedes this point when it exempts women licensees and wives of male licensees from the general prohibition without regard to their capacity to prepare spirits for consumption by patrons of liquor establishments.
The reason for the lack of such a showing is apparent. As we have pointed out, the saloon days of the Wild West are long gone. Nowadays the typical bar does not provide a setting for violence and danger, if in fact it ever did. At most, the dangers feared by the Attorney General may justify discrimination only in a particular establishment where, first, the employer can prove that such problems arise, and, second, that "substantially all women" lack the requisite strength to deal with such problems. (Weeks v. Southern Bell Telephone & Telegraph Co., supra, 408 F.2d 228, 235.) Such perils cannot serve as the basis for a blanket statewide statutory prohibition against the employment of women bartenders.
III. EQUAL PROTECTION
Finally, it is contended that section 25656 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and article I, sections 11 and 21, of the California Constitution
We recognize that the state has particularly broad powers with respect to the manufacture of and traffic in alcoholic beverages because of the
Before deciding whether the statute violates the equal protection clauses of the state and federal Constitutions we must determine the proper standards for reviewing the classification which the statute creates.
We have followed the two-level test employed by the United States Supreme Court in reviewing legislative classifications under the equal protection clause. (In re Antazo (1970) 3 Cal.3d 100, 110-111 [89 Cal.Rptr. 255, 473 P.2d 999]; Westbrook v. Mihaly, supra, 2 Cal.3d 765, 784-785; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578-579 [79 Cal.Rptr. 77, 456 P.2d 645]; see also, Note: Developments in the Law — Equal Protection (1969) 82 Harv.L.Rev. 1065, 1076-1077, 1088.)
"In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.] [¶] On the other hand, in cases involving `suspect classifications' or touching on `fundamental interests,' the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary
The instant case compels the application of the strict scrutiny standard of review, first, because the statute limits the fundamental right of one class of persons to pursue a lawful profession, and, second, because classifications based upon sex should be treated as suspect.
We have held that the state may not arbitrarily foreclose any person's right to pursue an otherwise lawful occupation. (Purdy & Fitzpatrick v. State of California, supra, 71 Cal.2d 566, 579.) The right to work and the concomitant opportunity to achieve economic security and stability are essential to the pursuit of life, liberty and happiness. As early as 1915, the United States Supreme Court declared that "the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of [the Fourteenth] Amendment to secure." (Truax v. Raich (1915) 239 U.S. 33, 41 [60 L.Ed. 131, 135, 36 S.Ct. 7].) The California Legislature accords statutory recognition to the right to work by declaring the opportunity to seek, obtain and hold employment without discrimination a civil right. (Lab. Code, § 1411.)
We find that strict review is also required because of the characteristic upon which the classification in the statute is based. The United States Supreme Court has not designated classifications based on sex "suspect classifications" requiring close scrutiny and a compelling state justification for their constitutionality.
An analysis of classifications which the Supreme Court has previously designated as suspect reveals why sex is properly placed among them.
Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society. (See Note: Developments in the Law — Equal Protection, supra, 82 Harv.L.Rev. 1065, 1173-1174.) The result is that the whole class is relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members. (See Karczewski v. Baltimore and Ohio Railroad Company (N.D.Ill. 1967) 274 F.Supp. 169, 179.) Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.
We now consider whether the state has established a compelling state interest. A number of state interests have been urged for the classification created by the statute. Two Court of Appeal cases which uphold section 25656 against equal protection challenge (Hargens v. Alcoholic Bev. etc. App. Bd. (1968) 263 Cal.App.2d 601 [69 Cal.Rptr. 868]; People v. Jemnez (1942) 49 Cal.App.2d Supp. 739 [121 P.2d 543]) suggest two interests served by the statute; first that women who do not have an interest by way of ownership or marriage in the liquor license will not be sufficiently restrained from committing "improprieties," and, second, that women bartenders would be an "unwholesome influence" on young people and the general public.
The first rationale rests upon the peculiar and wholly unacceptable generalization that women in bars, unrestrained by husbands or the risk of losing a liquor license, will commit improper acts. This rationale fails as a compelling state interest because it is wholly arbitrary and without support in logic or experience.
There is no reason to believe that women bartenders would have any less incentive than male bartenders to obey the laws governing the sale of alcoholic beverages and the rules set down by their employers in order to retain their jobs and promote their own well-being. Nor is there any basis for presuming that male licensees, charged with overseeing their establishments and carrying out their responsibilities under the law, would be less able to carry out these responsibilities with respect to women bartenders than to the male bartenders or female cocktail waitresses the law permits them to hire.
Hargens v. Alcoholic Bev. etc. App. Bd., supra, 263 Cal.App.2d 601 and People v. Jemnez, supra, 49 Cal.App.2d Supp. 739, to the extent that they conflict with the views stated herein, are disapproved.
Finally, the Attorney General argues that this case is governed by Goesaert v. Cleary, supra, 335 U.S. 464, which held constitutional a Michigan statute forbidding any female to act as bartender unless she was the wife or daughter of the male owner of a licensed liquor establishment. The rationale for the classification in that case was 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." (Id., at p. 466 [93 L.Ed. at p. 166].) This holding ignores the obvious objection, raised in the dissent, that a male owner, although he is always absent from his bar, may employ his wife and daughter while a female owner may not work in a bar or employ her daughter even though a man is always present to keep the order.
Although Goesaert has not been overruled, its holding has been the subject of academic criticism (Kanowitz, Women and The Law, supra, pp. 33-34; Oldham, Sex Discrimination and State Protective Laws (1967) 44 Denver L.J. 344, 373-374); and its sweeping statement that the states are not constitutionally precluded from "drawing a sharp line between the sexes" (Goesaert v. Cleary, supra, 335 U.S. at p. 466 [93 L.Ed. at p. 165]) has come under increasing limitation. (See Paterson Tavern & G.O.A.
We need not, however, speculate as to the continuing validity of Goesaert. The rationale for upholding the statute in that case cannot sustain our statute. Section 25656 does not preclude all women from being bartenders or prohibit them from bartending except where they are under the supervision of a male relative. It permits a female owner or sole shareholder to tend bar. The classification made by the section thus cannot be justified on the basis of the protection of female bartenders by their male relatives and we can think of no other legitimate state purpose to which it is rationally related. (See McCrimmon v. Daley (7th Cir.1969) 418 F.2d 366, 369-370, which distinguishes Goesaert where a Chicago ordinance permitted a female licensee and her female employee to tend bar.)
For the reasons stated, we find section 25656 invalid. Let the peremptory writ of mandate issue compelling the Director of the Department of Alcoholic Beverage Control to cease license revocation proceedings based upon section 25656 of the Business and Professions Code and to cease enforcement of the section.
Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
"The provisions of this section do not apply to the dispensing of wine or distilled spirits or to the mixing of alcoholic beverages containing distilled spirits by any on-sale licensee, or to the dispensing of wine or distilled spirits or to the mixing of such beverages by the wife of any licensee on the premises for which her husband holds an on-sale license, or to the dispensing of wine or distilled spirits or to the mixing of such spirits by a female, when she is the sole shareholder or when she and her husband are the sole shareholders of the corporation which holds the on-sale license for the premises."
The President's Commission on Women reports that "substantial discrimination [in education] does exist." It cites higher admission standards for women than men not only in graduate school but in undergraduate schools as well. It states that "Discrimination in education is one of the most damaging injustices women suffer. It denies them equal education and equal employment opportunity, contributing to a second class self image." (A Matter of Simple Justice: The Report of The President's Task Force on Women's Rights and Responsibilities, supra, p. 7; see also American Women: Report of the President's Commission on the Status of Women, supra, p. 11.)