"All people are not heterosexual. Heterosexuality is not superior and is not the norm by which all other sexual orientation and gender identities are measured." --Burnaby, B.C. Schools Draft Policy #5.45

Thursday, May 5, 2011

One Eleven Wines & Liquors v. Division of Alcoholic Beverages Control

A New Jersey case from 1967, in which the New Jersey Supreme Court reverses a lower court ruling upholding the suspension and revocation of  the liquor licenses of three bars for allowing gay people to congregate in them.  The Mattachine Society, an early gay rights organization in the United States, is listed as having filed a "friend of the court" brief.

Sexual minorities still have a long way to go, but as this case shows, we really have come a long way.

(Relevant note: New Jersey's consensual sodomy law was apparently repealed in 1978.)

One Eleven Wines & Liquors, Inc. v. Div. Alcoholic Bev. Control, 235 A.2d 12 (N.J. 1967)

Summary:  When prohibition ended with the adoption of the 21st Amendment in 1933, New Jersey created the Division of Alcoholic Beverage Control (the "Department"), a state agency for regulating the sale of alcohol in New Jersey.  Department's authority included issuing licenses to bars allowing them to sell alcohol.  In 1934, Department adopted Rules 4 and 5.  Rule 4 said bars were not allowed to let in "any known criminals, gangsters, racketeers, pick-pockets, swindlers, confidence men, prostitutes, female impersonators, or other persons of ill repute".  Rule 5 said bars should not allow themselves to become "nuisances", by letting brawls, noise, or "lewd", "indecent" or "immoral activities" happen in them, including "obscene language and conduct".

Prior to 1954, the Department had suspended or revoked the licenses of bars where homosexuals gathered under Rule 4.  Investigators would be sent to bars to gather evidence, apparently stretching the meaning of "female impersonator" in Rule 4 to include "effeminate behavior".  In one case, the Department wrote in its decision, among other things, that the "presence of female impersonators in and upon licensed premises presents a definite social problem", and "the mere thought of such perverts is repugnant to the normal person".

From 1954, the Department started bringing proceedings under Rule 5--not under the "immoral conduct" language of Rule 5, but, under its "nuisance" language--for allowing gay people to congregate them.  The Department said it would not allow its licensees to become "havens for deviates".  In one case, a licensee introduced expert testimony that homosexuality was not contagious, but the bar's license was still suspended.

In this case, the Department brought separate proceedings under the "nuisance" language of Rule 5 against three bars--One Eleven, Murphy's and Val's.

In the One Eleven case, an investigator gave the following account of what he observed:
"They were conversing and some of them in a lisping tone of voice, and during certain parts of their conversations they used limp-wrist movements to each other. One man would stick his tongue out at another and they would laugh and they would giggle. They were very, very chummy and close. When they drank their drinks, they extended their pinkies in a very dainty manner. They took short sips from their straws; took them quite a long time to finish their drink.  They were very, very endearing to one another, very, very delicate to each other.  They looked in each other's eyes when they conversed. They spoke in low tones like an effeminate male. When walking, getting up from the stools, they very politely excused each other, hold on to the arm and swish and sway down to the other end of the bar and come back.  Their actions and mannerisms and demeanor appeared to me to be males impersonating females, they appeared to be homosexuals commonly known as queers, fags, fruits and other names."

In the Val's Bar case, the investigators reported that the patrons were "normally dressed", and showed "good behavior".  An expert witness called by Val's in its case said that non-homosexuals would not be harmed by being in the presence of homosexuals and if homosexuals did not have a place to get together, they'd be forced into "clandestine, unregulated" places.

The lower courts affirmed the Department's decision to suspend or revoke the licenses of the three bars.  The bars appealed.  The Supreme Court combined the cases into a single decision.

Holding: Reversed.  Homosexuals have the right to congregate in public places, so long as they don't otherwise engage in offensive sexual conduct.  Other state court cases have held that the mere gathering, or congregation of homosexuals, in the absence of evidence of "lewd" conduct, is insufficient to suspend or revoke a bar's license, even holding that a statute aimed at preventing homosexuals from assembling was unconstitutional.  The lower court said it was concerned with the bar's violation of Rule 5, not the right of its patrons to congregate, but the two issues are "intertwined".  The bars have standing to assert the rights of their patrons, so that the court's decision can adequately address the entire issue.  Department's evidence was inadequate to support argument that gay bars would harm non-gay people.  Also, its argument that "offensive conduct" by gays inside gay bars would cause non-gay people to be violent towards them ignores the fact that it's the bar's responsibility to keep its premises orderly, and its argument that allowing gay bars would bring disrepute on the liquor industry, respect for which Department has been striving to increase, ignores the social trend toward greater acceptance of homosexuality.

The Department can adopt "lesser" regulations that do not "impair the rights" of "well-behaved homosexuals" to congregate.

Concurring Opinion: Agree that "well-behaved homosexuals" cannot be forbidden to patronize bars, but there was evidence in the One Eleven and Murphy cases that men were kissing each other on the lips, and this would have been sufficient if the bars had been charged with permitting "lewd" or "immoral" conduct, rather than just "nuisance".

This case is on Google, here.

1 comment:

  1. One Eleven Wines & Liquors was apparently a bar called Manny's Den, outside of New Brunswick, N.J., which is now known as just The Den, and is still in operation: http://www.dennightclub.com/index.htm