See 412 U.S. 913 .
The appeal is dismissed for want of a substantial federal question.
Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice BLACKMUN concur, dissenting.
Appellants, 15 Maine lodges of the Benevolent and Protective Order of Elks, brought suit against the State Liquor Commission of Maine to enjoin it from denying them liquor licenses under 1301-A of Tit. 17 of the Maine Rev.Stat. Ann.,1 which reads:
The Elks require a person to be a 'white male citizen' to be a member. 2 The Commission denied licenses to the 15 subordinate lodges pursuant to 55(8) of Tit. 28 [411 U.S. 924 , 925] of the Maine Rev.Stat.Ann., which provides that the Commission, in issuing or renewing licenses, 'shall given consideration to the character of any applicant, the location of the place of business and the manner in which it has been operated.' The Commission stated that the 'whites' only limitation of the Elks Constitution established 'bad moral character' of the subordinate lodges. The Supreme Judicial Court, reversing a decision of the superior court which had granted appellants a permanent injunction, upheld the Commission's action. The court stated:
In concluding that the Commission was justified in denying the licenses because the lodges had violated the State's public policy embodied in 1301-A, the court rejected appellants contention, inter alia, that the statute violates the Equal Protection Clause of the Fourteenth Amendment.
Appellants sought a stay pending appeal to this Court, and the state court denied it. A similar application to this Court, eventually referred to the Conference, was [411 U.S. 924 , 926] granted. The Court now dismisses the appeal for want of a substantial federal question. I cannot agree with this disposition.
The Maine court specifically considered appellants' claim that the exception for 'organizations which are oriented to a particular religion or which are ethnic in character' violates the Equal Protection Clause because it permits some associations to have liquor licenses notwithstanding their discriminatory membership policies. The court said:
Webster's New International Dictionary tells us that 'ethnic' means: 'Relating to community of physical and mental traits in races, or designating groups of races of mankind discriminated on the basis of common [411 U.S. 924 , 927] customs and characters.' The 'ethnic' exception in the Act therefore would seem to allow a Chinese, Japanese, Malaysian, or African group to practice discrimination in their lodges and still get liquor licenses but not to allow the 'white' the same privilege. As stated long ago in Strauder v. West Virginia, 100 U.S. 303, 308 :
We repeated the same thought in Hernandez v. Texas, 347 U.S. 475, 478 , in speaking of discrimination against persons of Mexican descent:
That classifications based upon race3 or nationality4 are 'suspect' and therefore demand close scrutiny is well established. See San Antonio Ind. School Dist. v. Rodriquez, 411 U.S. 1 , 104-105, 36 L. Ed.2d 16 (Marshall, J., dissenting). I do not question the State's beneficient motives in attempting to eliminate the scourge of discrimination by whites against non-whites solely on the basis of color, but I cannot subscribe to the view that the State may legislate against this form of invidious discrimination and, at the same time, sanction and insulate another, albeit less invidious in the State's eyes. Since the Maine statute and its application by the Supreme Judicial Court raise, in my mind, a substantial question under the Equal Protection Clause, I would note probable jurisdiction.
[ Footnote 1 ] Section 1301-A was added to Tit. 17 in 1969. C. 371, Me.L.1969.
[ Footnote 2 ] Section 144 of the Elks Stat.Ann. (1972) provides: 'No person shall be accepted as a member of this Order unless he be a white citizen of the United States of America, of sound mind and body, of good character, not under the age of Twenty-one years, and a believer in God. No person shall be accepted as a member of this Order who is directly or indirectly a member of or in any way connected or affiliated with the Communist Party, or who believes or advocates the overthrow of our Government by force.' The By-Laws of the National Order apparently are incorporated in the by-laws of each subordinate lodge.
[ Footnote 3 ] See, i. g., McLaughlin v. Florida, 379 U.S. 184 , 191-192; Loving v. Virginia, 388 U.S. 1, 9 .
[ Footnote 4 ] See Oyama v. California, 332 U.S. 633 , 644-646; Korematsu v. United States, 323 U.S. 214, 216 .