Griffin v. Dugger Brief in Opposition to Petition for Writ of Certiorari

    I n  the

(Emtrt nf %  Mnlttb States
No. 70-75

Appellant,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF OF THE LAWYERS’ COMMITTEE 

FOR CIVIL RIGHTS UNDER LAW

J ohn T. B igby

A rnold & P orter 
1229 Nineteenth Street, N W . 
Washington, D.C. 20036 

Attorney for Amicus Curiae 
Lawyers’ Committee for 
Civil Rights Under Law

M oose L odge N o.

K. L eroy I rvis, et al.,





In the

Bnpvmw (Emtrt of %  Inttzb j&tatefl
No. 70-75

Moose L odge No. 107,

-v.
Appellant,

K. L eroy I evis, et al.,
Appellees.

o n  a p p e a l  p r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

EOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Motion for Leave to File Brief Amicus Curiae

The Lawyers’ Committee for Civil Rights Under Law 
hereby respectfully moves for leave to file the attached 
brief Amicus Curiae. The Committee supports affirmation 
by the Court of the decision of the lower court that the 
grant by the State of Pennsylvania to Moose Lodge No. 107 
of a club liquor license was in violation of the Equal Pro­
tection Clause of the Fourteenth Amendment.

The Lawyers’ Committee for Civil Rights Under Law 
is organized as a not-for-profit corporation. Partly through 
a paid staff, but primarily through the volunteer services 
of members of the private bar, the Committee actively as­
sists citizens in asserting and enforcing their civil rights. 
The thrust of the Committee’s activities is to seek for these 
citizens the full measure of the protection of the law against 
racial discrimination.

The Committee maintains ten offices throughout the 
United States as well as a national headquarters in Wash-

(i)



ington, D.C. A Board of Trustees of some one hundred 
lawyers guides the national activities of the Committee, 
with smaller boards or steering committees directing the lo­
cal offices. The membership of the national Board of Trus­
tees represents a cross-section of the American bar, as do 
the hundreds of attorneys who have volunteered to handle 
civil rights cases under the auspices of the Committee since 
its inception in 1963. Participants in Committee activities 
include single practitioners as well as the range from young- 
associates to senior partners in law firms of all sizes. 
The Committee numbers among its national and local mem­
bers fifteen presidents of the American and National Bar 
Associations, including both incumbents, and two former 
Attorneys General of the United States.

The Committee has requested consent by Appellant and 
Appellee to the filing of a brief Amicus Curiae. Appellee 
has not consented. Appellant has declined to consent. The 
Committee, therefore, moves pursuant to Buie 42(3) for 
leave to file the annexed brief Amicus Curiae.

1. The interest of the Committee in this case arises from 
its dedication to and interest in implementation of Consti­
tutional guarantees of civil rights. As described above, 
the Committee has for the past eight years been an active 
participant in this nation’s effort to eradicate the stain 
of racial discrimination.

2. The Committee proposes, in its brief Amicus Curiae, 
to address itself to a matter of immediate and major in­
terest to the Committee, that is, the Court’s standards for 
determining whether the Equal Protection Clause of the 
Fourteenth Amendment precludes a State from granting 
a liquor license to an organization which engages in racial 
discrimination. In the event that the Court accepts juris-



diction in this case, decision by the Court on the merits 
will no doubt mark a major step in the evolution of the 
law concerning the implications of State involvement in 
private acts of racial discrimination.

3. The Committee believes that the decisional criteria 
employed by the lowrnr court, and the thrust of Appellee’s 
argument, would, if adopted by the Court, lead to an 
unacceptably quantitative standard for ascertaining the ex­
istence of State action prohibited by the Equal Protection 
Clause. The Committee believes that its interests in the 
outcome of this litigation can be adequately represented 
only if the Court considers the argument that the Equal 
Protection Clause of the Fourteenth Amendment prohibits 
a State from taking action, other than to discharge a gov­
ernmental responsibility owed to all of its citizens, that 
has the effect of authorizing or enhancing private discrim­
ination. The Committee understands that Appellee does 
not propose to make this argument to the Court. Thus, the 
interests of the Committee will not be adequately repre­
sented unless the Committee is granted leave to file the 
annexed brief.

Respectfully submitted,

J ohn T. R igby

A rnold & P orter 
1229 Nineteenth Street, N.W. 
Washington, D.C. 20036 

Attorney for Amicus Curiae 
Lawyers’ Committee for 
Civil Rights Under Law





I N D E X

PAGE

Motion for Leave to File Brief Amicus Curiae .........  (i)

B r ie f  :

Interest of Amicus ..............................................................  2

Statement .............„.................................................  2

A r g u m e n t  :

The Equal Protection Clause of the Fourteenth 
Amendment Prohibits a State From Taking Any 
Action, Other Than to Discharge a Governmental 
Responsibility Owed to All of Its Citizens, That 
Has the Effect of Authorizing or Enhancing Pri­
vate Discrimination .................................    3

C o n c l u s io n  ......................................................................  o

Cases:
T a b l e  o f  A u t h o r it ie s

Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961) .2, 3, 4, 5

Civil Rights Cases, 109 U.S. 3 (1883)

Loving v. Virginia, 388 U.S. 1 (1966) ...........................

Nippert v. Richmond, 327 U.S. 416 (1946)

Palmer v. Thompson, ------  U.S. ------ , 91 S.Ct. 1940
(1971) ..........................................

3 

7

4

5,7



PAGE

Reitman v. Mulkey, 387 U.S. 369 (1967) ................... 4

Joseph Seagram & Sons, Inc. v. Hostetler, 384 U.S. 35
(1966) ........................ ............................................. „ ......  4

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................... 3

Terry v. Adams, 345 U.S. 461 (1953) ........................... 2, 5

United States v. Frankfort Distilleries, Inc., 324 U.S.
293 (1945) .......................................................................  4

United States v. Guest, 383 U.S. 745 (1966) ..................  5

Constitutional Provisions:

United States Constitution
First Amendment .......       7
Fourteenth Amendment ........................................ passim
Twenty-first Amendment ..........................................  4, 6

11



I n  the

Gkwrt at %  Intuit States
No. 70-75

M oose L odge N o. 107,

K. L ekoy I rvis, et al.,

Appellant,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW

This brief is submitted by the Lawyers’ Committee for 
Civil Rights Under Law as Amicus Curiae.

INTEREST OF AMICUS

The Lawyers’ Committee for Civil Rights Under Law is 
organized as a not-for-profit corporation. Partly through 
a paid staff, but primarily through the volunteer services 
of members of the private bar, the Committee actively 
assists citizens in asserting and enforcing their civil rights. 
The thrust of the Committee’s activities is to seek for these 
citizens the full measure of the protection of the law against 
racial discrimination.

The Committee maintains ten offices throughout the 
United States as well as a national headquarters in Wash­
ington, D.C. A  Board of Trustees of some one hundred



2

lawyers guides the national activities of the Committee, 
with smaller hoards or steering committees directing the 
local offices. The membership of the national Board of 
Trustees represents a cross-section of the American bar, 
as do the hundreds of attorneys who have volunteered 
to handle civil rights cases under the auspices of the Com­
mittee since its inception in 1963. Participants in Com­
mittee activities include single practitioners as well as the 
range from young associates to senior partners in law firms 
of all sizes. The Committee numbers among its national 
and local members fifteen presidents of the American and 
National Bar Associations, including both incumbents, and 
two former Attorneys General of the United States.

The interest of the Committee in this case arises from 
its dedication to and interest in implementation of Con­
stitutional guarantees of civil rights.

STATEMENT

Amicus agrees with the proposition, as stated in Burton 
v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961), 
that “ to fashion and apply a precise formula for recogni­
tion of state responsibility under the Equal Protection 
Clause is an ‘impossible task.’ ” The potential range of 
the Court’s inquiry for discerning state action in violation 
of the Equal Protection Clause was described by Mr. Jus­
tice Frankfurter in his separate opinion in Terry v. Adams, 
345 U.S. 461, 473 (1953):

“The vital requirement is State responsibility—that 
somewhere, somehow, to some extent, there be an in­
fusion of conduct by officials, panoplied with State 
power . . . .”

The unavailability of “ readily applicable formulae” has 
led the Court, in assessing nonobvious involvement of the



3

State in private conduct, to engage in “sifting the facts and 
weighing the circumstances” to determine whether the 
Equal Protection Clause has been violated. Burton, supra, 
365 U.S. at 722, 725. Amicus, in these terms, wishes to 
address itself to the dimensions of the sieve and the scale 
which may be employed in this process.

A R G U M E N T

The Equal Protection Clause of the Fourteenth 
Amendment Prohibits a State From Taking Any Action, 
Other Than to Discharge a Governmental Responsibility 
Owed to All of Its Citizens, Thai Has the Effect of 
Authorizing or Enhancing Private Discrimination.

I.

This case involves implementation of a State liquor 
regulatory and licensing scheme which lias the effect of 
sustaining a private fraternal organization which, in its 
membership and guest policies, engages in racial discrimi­
nation. The State of Pennsylvania consciously authorized 
Moose Lodge No. 107, while reaping the economic benefits 
of a valuable grant extended by the State, to make a dis­
criminatory classification based on color.

The question before the Court is not whether the Moose 
Lodge or its members may, individually or jointly, engage 
in acts of racial discrimination.1 Nor, Amicus submits, is 
the question merely whether the relevant activities of the 
State of Pennsylvania, through its liquor licensing and

1 The Civil Rights Cases, 109 U.S. 3 (1883), “embedded in our 
constitutional law” the principle that the Equal Protection Clause 
“erects no shield against merely private conduct, however discrim­
inatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1, 13 (1948) 
(emphasis added) ; Burton, supra, 365 U.S. at 721.



4

regulatory process, are sufficient in frequency and magni­
tude, to make the State an unconscious partner or actual 
participant in the discriminatory practices of the Moose 
Lodge. Amicus suggests that the Equal Protection Clause 
precludes a State from undertaking any affirmative action, 
other than to discharge a governmental responsibility owed 
to all of its citizens, that has the effect of authorizing or 
enhancing private discrimination.

II.

There can be no question that we are here dealing with 
“ state action” . The State has acted. It has enacted a 
liquor code, under authority recognized by the Twenty-first 
Amendment.2 In implementation of this enactment, the 
State has extended to a private organization—racially 
exclusionary in its membership and guest policies—the val­
uable authority to sell liquor by the drink. The State itself 
could not form and operate a club which discriminated 
against individuals on the ground of their race. The ques­
tion, of course, is whether the State’s action here was such 
as to warrant attribution to the State of the private club’s 
discriminatory practices. As in Burton v. Wilmington 
Parking Authority, supra, 365 U.S. at 722, and Reitman 
v. Mulkey, 387 U.S. 369, 378 (1967), this case presents an 
instance of “ nonobvious involvement of the State in private 
conduct.”

2 Under the Twenty-first Amendment, a State has “full authority 
to determine the conditions upon which liquor can come into its 
territory and what will be done with it after it goes there 
United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 299 
(1945) ; Joseph Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 42 
(1966). The Court has described “ commerce in intoxicating liquors” 
as commerce “over which the Twenty-first Amendment gives the 
States the highest degree of control.” Nippert v. Richmond. 327 
U.S. 416, 425 n. 15 (1946).



5

There is no requirement that the State involvement in 
private action, to be violative of the Eqnal Protection 
Clause, “be either exclusive or direct. In a variety of situa­
tions the Court has found state action of a nature sufficient 
to create rights under the Equal Protection Clause even 
though the participation of the State was peripheral, or 
its action was only one of several co-operative forces lead­
ing to the constitutional violation.” United States v. Guest, 
383 U.S. 745, 755-56 (1966) (citations omitted); Terry v. 
Adams, supra. Nor is it necessary here to show that the 
State enactment or action is itself racially motivated. As
stated in Palmer v. Thompson,-------U.S. — —, 91 S.Ct.
1940, 1945 (1971), the focus is properly “ on the actual 
effects of the enactments.” Here, the effect of the enact­
ment, as implemented by the State itself, was not only 
to authorize private racial discrimination but, in fact, 
to provide the economic underpinning for the discrimina­
tion. (See Jurisdictional Statement, p. 18; A 19-20, 25)

III.

The court below utilized essentially quantitative measures 
to determine whether equal protection of the laws has been 
denied to Appellee Irvis by the State. The court relied 
primarily on the “ all-pervasiveness” of the Pennsylvania 
Liquor Code to conclude that the State, in the terms of 
Burton, supra, has “ insinuated itself into a position of 
interdependence” with its private club licensees. (A 34)

Because of the likely effect of this case on other litiga­
tion now under way in State and Federal courts involving 
State roles in aid of private acts of racial discrimination,3

3 As suggested by Mr. Justice Blackmun in his concurring opinion 
in Palmer v. Thompson, supra, 91 S.Ct. at 1947: “ In isolation this 
litigation may not be of great importance; however, it may have 
significant implications.” Numerous examples of related litigation



6

Amicus urges tliat the Court take pains to avoid resting its 
decision in this case on a primarily quantitative assessment 
of the relevant State role or action. However “ pervasive” 
may be the interaction of the State and the private roles 
in the discriminatory scheme, it suffices that the State exer­
cised its discretion to extend a valuable privilege in sup­
port of what the State must have known to be racially 
discriminatory acts.

The Twenty-first Amendment did not have the effect of 
recognizing a right of individuals or organizations to dis­
pense liquor for pay. Bather, the Twenty-first Amendment 
restored to the States their comprehensive authority to reg­
ulate intra-state liquor commerce as they deemed appro­
priate. See n. 2, supra. A liquor license—particularly one 
entailing the opportunity to profit from the sale of liquor— 
is unquestionably a privilege, and not a right. Appellant 
has stipulated in this case that “ the receipt and ownership 
of such a license is a valuable privilege granted to a club” 
by the State. (A  25, 4) Grant of such a privilege is an act 
of discretion by the State.

Appellant has sought to reduce to an absurdity the 
lower court’s application of Equal Protection prohibitions 
to Pennsylvania’s extension of liquor dispensing privi­
leges to the Moose Lodge. Appellant suggests, for example, 
that the lower court’s ruling would require the recipient 
of a marriage license to accept any person as a spouse, 
regardless of race and regardless of the license recipient’s 
choice. Appellant argues that it is no less prohibited “ state 
action” to license a marriage in which the participants 
engage in racial discrimination than it is to extend the

are set forth in Appellant’s Memorandum In Opposition to the 
Motion to Affirm (pp. 3-4) and in the Amicus briefs filed in sup­
port of Appellant.



7

privileges of liquor sales to a racially discriminating fra­
ternal organization.

Appellant’s argument is but an extreme postulation of 
the proposition: “ Is it prohibited state action to furnish 
public utilities, or police and fire protection, which has the 
effect of sustaining private racial discrimination?” The 
answer lies in the distinction between State activities, in 
the nature of grants or services, which by law or tradition 
the State is bound to furnish to all citizens, and those 
State grants which are in the nature of privileges.4 A 
liquor license, under the Pennsylvania statute, falls in the 
latter category.

There is no Constitutional or Federal statutory provi­
sion imposing an affirmative duty on the State to authorize 
private sales of liquor. Nor is the authorization of private 
liquor sales a response to a duty under which, like the 
furnishing of police and fire protection or a marriage li­
cense, a State is required by law or tradition to furnish to 
every one of its citizens.5 6 Thus, the State of Pennsylvania 
would be required to permit a speaker, in exercise of his 
First Amendment rights, to use a public hall even if that 
speaker sought to advocate separation of the races. And 
the State would be required to furnish police protection 
to every individual or group regardless of their private 
beliefs or predilections.

But the State is not required by law to authorize or pro­
vide the economic support for an individual or group by per­
mitting the sale of liquor. Amicus submits that the State 
is precluded by the Equal Protection Clause from such an 
authorization where its effect would be to sustain racial 
discrimination.

4 The rationale of Palmer v. Thompson, supra, serves as a useful
analytical tool for recognizing this distinction.

6 See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1966).



8

CONCLUSION

The judgment of the District Court should b e  affirmed. 
The grant by the State of Pennsylvania to Moose Lodge 
No. 107 of a club liquor license was in violation of the 
Equal Protection Clause of the Fourteenth Amendment.

Respectfully submitted,

J ohn T. R igby

A rnold & P orter 
1229 Nineteenth Street, N.W. 
Washington, D.C. 20036 

Attorney for Amicus Curiae 
Lawyers’ Committee for 
Civil Rights Under Law