This is an excerpt from Roy Den Hollander:
The U.S. Second Circuit Court of Appeals ruled today that any nightclub licensed to sell alcohol to the public can discriminate against any group of persons by charging them more for admission than other groups. It does not matter whether the nightclubs charge males or females or blacks or latins or any other identifiable group more for admission—it is now constitutional.
If a nightclub wants to effectively ban any particular group of persons, all it has to do is charge the members of that group so much more than the members of other groups that none of them, unless they are Wall Street Moguls, could afford the admission price.
The Second Circuit’s ruling came in an appeal by NYC attorney Roy Den Hollander that challenged the constitutionality of “Ladies’ Nights.” Den Hollander challenged the Ladies’ Nights practice of charging men more for admission than ladies. The common practice across the country, but not in NYC, is for Ladies’ Nights to charge men more for drinks than ladies.
The way the U.S. Constitution works is that for the nightclubs to discriminate in violation of the Constitution, the state government must somehow be entwined with them. It’s called “state action.” The Second Circuit relied on a U.S. Supreme Court case “upholding the constitutionality of discrimination against African Americans,” Opinion 08-5547 p. 6, to find that when nightclubs charge men more for admission than ladies or for that matter any group more than another group, there is no state action.[1] The Second Circuit said, “[t]he Supreme Court specifically held that a liquor license is insufficient to establish state action.”
Den Hollander responded, “It’s either a decision driven by Feminist ideology or the Second Circuit decided to punt the case to the U.S. Supreme Court.”
[1] There is state action, however, when the nightclubs charge men for a drink, see Opinion 08-5547 p. 5.
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