pnms-forum_mills-123108 Courts embraced Maine's stand against bias

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Second of two parts; the first was published in the Dec. 10-12 editions of The Forecaster.
By Paul Mills
My last column featured the trailblazing efforts that led to a 1969 Maine law to end discrimination against Jews and other minorities, which had been practiced by some of Portland’s leading clubs. But passing the law was one thing; making it work was another.
Weeks before the law took effect, the Cumberland Club rejected a bylaw change that would have ended its discriminatory practices. A key confrontation then ensued at a Portland City Council meeting in early December, when the club’s food or “victualer’s” license came up for renewal.
Spearheading the city’s inquiry was Councilor Charles Allen, a partner in one of Maine’s biggest law firms. (His son Tom, the future congressman, was then studying overseas as a Rhodes Scholar.) Allen moved to table the Cumberland application, to allow the council time to consider charges that the prestigious club was still discriminating.
Coming to the defense of the Cumberland Club was Councilor Donald MacVane, a prominent physician. “I don’t think even the Supreme Court can legislate as to whom anyone may want to associate with,” said MacVane, in contending the private club had a right to prohibit anyone.
Though both the incoming and outgoing mayors, John Sturgis and Donald Slipp, joined MacVane to oppose Allen’s motion, it passed 5-3.
The Cumberland Club was then given a probationary period in which to prove it did not discriminate. Within weeks, the club offered membership to six Jews. It also amended its bylaws to include a declaration that neither “race, creed, color” nor “ethnic origin” could play a role in selecting members.
But Dr. MacVane’s sentiment – that private organizations held a right of association with which the law could not interfere – remained untested in the courts.
It was then that the Maine affiliate of one of America’s largest fraternal organizations, the 2.5-million member Elks, became determined to defend the “whites only” membership clause of its national charter all the way to the U.S. Supreme Court.
In 1970, the Portland council tried to force the city’s Elks Lodge to change its membership bylaws, but unlike the Cumberland Club, local Elks were powerless, as only part of a national organization. The council still refused to renew the local Elks’ liquor license; by year’s end, the State Liquor Commission followed suit against 15 Elks lodges throughout Maine.
The more than 10,000 Elks in Maine did not go thirsty, however, and the 65 percent of club revenue from liquor sales was uninterrupted. That’s because Superior Court Justice William McCarthy of Rumford, acting on a series of lawsuits filed on behalf of the Elks, prohibited the state from suspending the licenses.
Attorney General James Erwin appealed the ruling to the Maine Supreme Judicial Court.
In a unanimous opinion handed down in 1972, Maine’s highest court overruled McCarthy and upheld the 1969 law. The court decided that the First Amendment’s freedom of association and Fourth Amendment’s privacy principles do apply to many groups, but not the Elks, because it’s a general membership organization, absent any ethnic or racial mission.
Justice Sidney Wernick of Portland, writing for the court, thus found the “whites only” restriction was anomalous, if not arbitrary, and the group could not take advantage of the Maine law’s exemption for organizations with ethnic or racial purposes.
The Elks then called on the U.S. Supreme Court to overturn the Maine law. The group had reason to think the court was sympathetic; months earlier, the same court had ruled the all-white Moose organization in Pennsylvania had the right to refuse to serve liquor to blacks.
Liquor licensing was not sufficient “state action” to apply Fourteenth Amendment equal protection principles on private organizations, the court had ruled.
Maine, however, had gone further than Pennsylvania. Our Legislature had imposed an anti-discrimination condition on liquor licenses, something the Keystone State hadn’t. So, by April 1973, the highest of courts refused to hear the Elks’ appeal.
By that August, Elks nationwide voted to delete their 105-year-old “whites only” clause. In announcing the vote, 1.2 million to 300,000 in supporting the change, Robert Yothers, a Seattle attorney and the Elks’ grand exalted ruler, observed “the Supreme Court decision in Maine helped bring about the decision.”
Thus, in the annals of the national campaign against institutional bias, Maine should be considered to have lived up to its motto, Dirigo, meaning “I direct” or “we lead.”
Paul H. Mills is a Farmington attorney known for his analyses and historical understanding of Maine’s political scene. He can be reached at pmills@midmaine.com.

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