Goeseart v. Cleary: the Barmaids' case

Anne Davidow

Anne Davidow, the attorney in Goesaert v. Cleary

In 1945, after extensive lobbying by the Bartenders’ Union, Michigan legislators enacted the "Bartender Act" which prohibited women from bartending in cities with a population of over 50,000. (Michigan Public Acts, no. 133, 1945) The only exception was if a woman's father or husband owned the bar. Before Prohibition in 1920, bars had been bastions of masculinity, however, after its repeal in 1933, bars became places where both men and women congregated and worked.  The Bartender's Union that fought for the law didn't want to exclude women from drinking or serving in bars though.  To the contrary, there was too much profit possible to exclude women completely. They only sought to expel women from the more economically beneficial profession of bartending. As Detroit Local 562 representative, Thomas Kearney, stated, "the problem of women working behind the bar has vexed the tavern industry for a long time." (“Barmaid Problem,” Michigan Bar Review, April 1943.) Barmaids were vexing the industry because they were earning wages that had previously been afforded only to men. Kearney and other Union members weren't concerned about morality issues or protecting women, in part they wanted to monopolize the higher wages associated with bartending in order to keep men as breadwinners.

Like similar barmaid prohibitions across the nation, the law kept women legally and economically dependent on men. Michigan barmaids did not willingly give up their occupation though. Moreover, female bar owners were not willing to give up ownership of their bar or hire men to govern their establishments without a fight. Taking an important stand against sexual discrimination, twenty-eight Michigan women, bar owners and barmaids, sued the Michigan Liquor Control Commission resulting in the case, Goesaert v. Cleary (1947).  Rekindling the debate women had started during the Reconstruction era, the barmaids fought for the privileges and immunities granted under the 14th amendment. Anne Davidow represented the plaintiffs. Davidow was no stranger to fighting for equal rights; she had advocated for women's suffrage atop soap boxes at factory gates. She later stated, "I was quite radical in the sense that I couldn't see any reason a woman couldn't do anything a man could do." (“Longtime Lawyer,” Detroit Free Press, June 25, 1991) By limiting women's right to contract their labor, the state kept occupational choice as part of male privilege and reinforced social thinking that men could govern women.  The plaintiffs contended that the law violated their constitutional rights by denying them equal protection and treatment under the law. In 1947, the Michigan Court by a 2/3 majority affirmed the act as a valid state use of police power. Justice Picard dissented claiming "What is the purpose of the 14th amendment if not to prevent gross, unreasonable discrimination of this kind?" (Goesaert v. Cleary, 74 F. Supp. 735, 1947)

Because the case raised constitutional questions, the women appealed to the United States Supreme Court in 1948.  The Supreme  Court, too, affirmed the Michigan law holding that a "state may direct its police regulations against an existing evil." (Goesaert v. Cleary, 335 US 464, 1948) Whether the existing evil was the liquor industry as a whole or women holding positions of power in bars is unclear. Justice Frankfurter, however, noted that there was a graver responsibility for the bartender who controls  liquor than waitresses who merely distribute it, which indicates that managing liquor dispersion was the main issue.  Frankfurter maintained that the 14th amendment did not tear our history up by its roots. By validating the Bartending Act then, the Supreme Court denied Michigan barmaids judicial protection of civil rights. The justices found that it was reasonable to classify women with respect to mixing drinks and reasonable to admit men to some employment that was denied women. The court refused to address the barmaids'  claim that the law allowed men a monopoly on higher-paying jobs. The Supreme Court asserted, "We cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling." (Goesaert v. Cleary, 335 US 464, 1948) The barmaids may have lost the battle, but they did not lose the war. The Michigan Barmaids Association kept fighting for the repeal of the Bartending Act. In 1955, Michigan legislators repealed the law after a decade of continued pressure. The Bartenders' Union even accepted women into its ranks. After the Michigan barmaids success, women in other states were successful integrating bartending. In 1976, the US Supreme Court rejected the Goesaert decision.

French, Amy Holtman. "Mixing It Up: Michigan Barmaids Fight for Civil Rights." The Michigan Historical Review 40:1 (Spring 2014): 27-48.

Mixing It Up
Goeseart v. Cleary: the Barmaids' case