# Moose Lodge No. 107 v. Irvis
## Dissenting Opinions

    Douglas
    Brennan
Supreme Court of the United States
407 U.S. 163
Moose Lodge No. 107 v. Irvis et al.
Appeal from the United States District Court for the Middle District of Pennsylvania
No. 70-75. Argued: February 28, 1972 --- Decided: June 12, 1972
Appellee Irvis, a Negro guest of a member of appellant, a private club, was refused service at the club's dining room and bar solely because of his race. In suing for injunctive relief, appellee contended that the discrimination was state action, and thus a violation of the Equal Protection Clause of the Fourteenth Amendment, because the Pennsylvania liquor board had issued appellant a private club liquor license. The District Court found appellant's membership and guest practices discriminatory, agreed with appellee's view that state action was present, and declared the liquor license invalid as long as appellant continued its discriminatory practices. Appellant's motion to have the final decree limited to its guest policy was opposed by appellee, and the court denied the motion. Following the District Court's decision, the applicable bylaws were amended to exclude as guests those would be excluded as members.
Held:
    1. Appellee, who had not applied for or been denied membership in appellant private club, had no standing to contest appellant's membership practices. He did, however, have standing to litigate the constitutional validity of appellant's discriminatory policies toward members' guests, and his opposition to amendment of the judgment did not constitute a disclaimer of injunctive relief directed at appellant's guest policies. Pp. 165-171.
    2. The operation of Pennsylvania's regulatory scheme enforced by the state liquor board, except as noted below, does not sufficiently implicate the State in appellant's discriminatory guest practices so as to make those practices "state action" within the purview of the Equal Protection Clause, and there is no suggestion in the record that the State's regulation of the sale of liquor is intended overtly or covertly to encourage discrimination. Burton v. Wilmington Parking Authority, 365 U.S. 715, distinguished. Pp. 171-177.
    3. Pennsylvania liquor board's regulation requiring that "every club licensee shall adhere to all the provisions of its constitution and by-laws" in effect placed state sanctions behind the discriminatory guest practices that were enacted after the District Court's decision, and enforcement of that regulation should be enjoined to the extent that it requires appellant to adhere to those practices. Pp. 177-179.
318 F. Supp. 1246, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 179. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 184.
Frederick Bernays Wiener argued the cause for appellant. With him on the briefs were Clarence J. Ruddy, Robert E. Woodside, and Thomas D. Caldwell, Jr.
Harry J. Rubin argued the cause for appellees and filed briefs for appellee Irvis. J. Shane Creamer, Attorney General of Pennsylvania, and Peter W. Brown and Salvatore J. Cucinotta, Deputy Attorneys General, filed a brief for appellees Scott et al.
Robert A. Yothers filed a brief for the Benevolent and Protective Order of Elks of the United States as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by John T. Rigby for the Lawyers' Committee for Civil Rights Under Law, and by Samuel Rabinove, Paul S. Berger, Joseph B. Robison, Arnold Forster, Paul Hartman, and Joseph Z. Fleming for the American Jewish Committee et al.
William H. Botzer and Jack P Janetatos filed a brief for the Washington State Federation of Fraternal, Patriotic, City and Country Clubs as amicus curiae.