A decision by the 12-member United States Court of Appeals for the Sixth Circuit, in an en banc (full court) rehearing of a divided earlier Sixth Circuit opinion in Deja Vu of Cincinnati v. Union Township 326 F.3d 791 (6th Cir. 2003), has overturned the earlier panel which had ruled in favor of Deja Vu. The full court ruling, also a divided one (7-5 on key issues), remands the case back to the District Court.
First Amendment Attorneys Louis Sirkin and Bradley Shafer had argued, on behalf of Deja Vu, that parts of a Union Township “resolution” (ordinance) were unconstitutional under the First and Fourteenth Amendments. One of the challenged parts of the resolution requires juice bars to close at midnight, even though alcohol-serving exotic dance clubs were allowed to stay open until 2:30 a.m.
This bizarre result was justified by the Township with the argument that they wanted to close adult cabarets before the bars and taverns in the area closed, in order to avoid unruly and intoxicated men from entering during the late night hours. So what about the dance clubs that serve alcohol? How could they justify an ordinance that favors alcohol exotic dance clubs over juice bars because of the so-called “secondary effects” of mixing alcohol and exotic dance?
Well, the Township is entitled to some slack as long as their intentions are good, said the court, to paraphrase somewhat loosely. The disparate treatment created by the resolution was not the result of an “invidious” motive on the part of the Township, which…
“…can point to at least two plausible justifications for the different closing times. The first is that Union Township wanted to institute a midnight closing time for all adult cabarets, but was prevented from doing so by conflicting state liquor laws. Second, Union Township relied upon research suggesting that the patrons of alcohol-free adult cabarets are often more unruly because these cabarets are frequently patronized later in the evening by customers who have become intoxicated at other establishments.”
However, as Judge Clay remarked in his dissenting opinion, the Township affidavit nowhere refers to the “research” mentioned in the majority opinion. It references only the speculative “concern” of some unidentified persons that there was “a greater chance” that drunken men would leave local bars after midnight, frequent adult cabarets, and become unruly.
The Resolution’s hours of operation provision runs afoul of the Equal Protection Clause of the Fourteenth Amendment, said Judge Clay, who pointed out the “patently ridiculous and irrational manner in which the Township has attempted to address its purported goal of minimizing the secondary effects associated with the combination of nude dancing and alcohol.”
