On this date in 1970, the Supreme Court decided Paterson Tavern & Grill Owners Ass’n v. Hawthorne, 57 N.J. 180 (1970). The issue in the case was whether an ordinance of the Borough of Hawthorne that forbade licensed taverns in the Borough from employing women as bartenders (with exceptions for women licensees who tended their own bars, or wives of male licensees) was valid. The ordinance had been adopted pursuant to the Borough’s police powers. The Appellate Division upheld that aspect of the ordinance at issue, which in that court and at the trial level also prohibited certain other employments. Only the issue of women as bartenders was presented to the Supreme Court.
In a unanimous opinion by Justice Jacobs, the Supreme Court reversed the Appellate Division and invalidated the ordinance. Justice Jacobs noted that “early cases displayed no hesitancy in sustaining prohibitions against female bartenders as reasonable and constitutional exercises of the police power,” citing two 1902 New Jersey cases. “But they arose in a different social and moral climate when judges, along with others, entertained Victorian ideas as to women and their proper place in the scheme of things.” Justice Jacobs cited the famous words of Justice Bradley in Bradwell v. Illinois, 21 L. Ed. 442 (1873), that a woman’s “natural ‘timidity and delicacy’ unfitted her for most civil occupations, that she properly belonged in the ‘domestic sphere,’ that her paramount mission was to fulfill ‘the noble and benign offices of wife and mother,’ that her pursuit of an independent career would be inimical to family harmony, and that the rules of law should be adapted accordingly.”
In 1948, Justice Jacobs went on to say, the Supreme Court of the United States upheld comparable restrictions in Goesaert v. Cleary, 335 U.S. 464 (1948), over a three-Justice dissent. That ruling was made even though “by the mid-twentieth century, startling changes had occurred in the social and legal rights of women and in society’s overall treatment of sexuality.”
But our Supreme Court in its 1970 decision declined to follow Goesaert, a ruling that “ha[d] been the subject of academic criticism” and “ha[d] been the subject of increasing limitation.” Justice Jacobs concluded that “in the light of current customs and mores, the municipal restriction against female bartending may no longer fairly be viewed as a necessary and reasonable exercise of the police power; it must therefore be stricken.”
The Court explained that “Hawthorne’s prohibition of female bartenders is unreasonable and goes beyond any public need. It is blanket in nature and seeks to exclude female bartenders, no matter how individually qualified, from all licensed establishments, no matter how suitably conducted. While the law may look to the past for the lessons it teaches, it must be geared to the present and towards the future if it is to serve the people in just and proper fashion. In the current climate the law may not tolerate blanket municipal bartending exclusions grounded solely on sex.”
It seems incredible now that, within living memory of many of us, there were laws that women could not be bartenders. As with many of its decisions in the same era as this one, our Supreme Court was fprward-looking. This opinion has not been cited often, but it is an important one in the larger picture of the way that the law treats women.