Tag Archives: Constitution

The History of Beer Litigation in California: The Case of Would-be Reformers Nelly Smith and Annie Keating

It is not specifically “beer litigation,” but it is the earliest case from California that I have come across concerning laws relating to beer consumption.

In 1869, two “pretty waiter girls,” Nelly Smith and Annie Keating, remained on purpose beyond midnight in a drinking saloon in violation of a city ordinance that banned women  (and live music) from bars or “beer cellars.” They were duly arrested and fined for their violation. The article below, printed in the Dec. 3, 1869 edition of a Sacramento Daily  Union, reveals it was a “test case”: it was intended that the conviction would be challenged on Constitutional Grounds.


The California Supreme Court opinion was not favorable to women or bar owners, upholding in Ex Parte Smith, October Term 1869, the ordinance as applied to women.

It was challenged on grounds of impinging upon the inalienable right to the pursuit of happiness, as well as the equal protection clause of the 14th Amendment.

The court allowed that perhaps females could gain enjoyment or happiness from being “at such places” after midnight. However, it had no problem dispensing with the “inalienable right” argument, finding that there are many legitimate reasons for governments to interfere with the right to pursue life, liberty, property, and happiness, including laws designed to promote public peace and good order, and public decency and morality.. The Constitution prevents only legislation that injures natural rights in a destructive or unreasonably restrictive manner. Judge Sanderson was willing to defer to the judgment of the Board of Trustees of Sacramento: that the presence of females in saloons after midnight was “of a vicious and immoral tendency.”

Judge Sanderson was likewise untroubled by the law’s uneven effect on men and women. <Side note for fun: the Judge describes military service and jury duty as burdens placed only upon men while showing that the law acts differently upon different categories of people in many acceptable ways>. Satisfied that where a law seeks to prevent a wrong  of a “character which permits of its being done … by one sex and not by the other,” Sanderson refused to countenance an equal protection violation so long as the law is reasonable. After all, in this case, the evil was “exclusively due” to females.

This ruling is of course an artifact that predates the heightened scrutiny a high court would now give to a law discriminating on the basis of gender. Justice Scalia likes morality legislation though–I wouldn’t be surprised if he backed a law like this one.