Article
Amicus Curiae Blog (June 22, 2020)

Clara Anderson v. City of St. Paul: A Woman’s Fight to Save Her Job in the Face of Discrimination

John H. Guthmann is the Chief Judge of Minnesota’s Second Judicial District and a member of the Ramsey County Historical Society Board of Directors. He graduated from Cornell College in Mount Vernon, Iowa, with a double major in history and political science in 1976 and received his JD from St. Paul’s William Mitchell College of Law1 in 1980. He was Editor-in-Chief of Volume 6 of the William Mitchell Law Review. After clerking for Minnesota Supreme Court Chief Justice Robert Sheran, he spent twenty-seven years in private practice until his appointment to the bench in 2008.

Acknowledgments: Clara Anderson v. City of St. Paul: A Woman’s Fight to Save Her Job in the Face of Discrimination by John H. Guthmann was first published in the Spring 2020 issue of Ramsey County History magazine. The article is reprinted with permission from the author and the Ramsey County Historical Society.

The Ramsey County Historical Society’s vision is to be widely recognized as an innovator, leader, and partner in preserving the knowledge of our community, delivering inspiring history programming, and using local history in education. Its mission of preserving our past, informing our present, inspiring our future guides this vision. In 1964, Ramsey County History began a distinguished tradition of assembling original information on engaging stories and noteworthy events that might otherwise be lost to time. The magazine offers readable, non-academic, local history focusing as much on the ordinary person as on the extraordinary. RCHS also publishes books, several of which have won awards. The best, easiest, and most cost-effective way to get Ramsey County History is to become a member of the Ramsey County Historical Society. The magazine is a benefit of membership along with free admission to the Gibbs Museum. You may purchase individual copies of the magazine from RCHS for $10, plus shipping. For more information, go to www.rchs.com or call 651-222-0701.

The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.2

—Bradwell v. State (upholding Illinois Supreme Court decision to deny Myra Bradwell a law license)

The pedestal on which women were thought to stand more often
turned out to be a cage.3

—Justice Ruth Bader Ginsburg

On August 18, 2020, our nation celebrates the centennial of ratification of the Nineteenth Amendment to the US Constitution. This historic moment followed nearly a century of battle by the women’s suffrage movement to win the right to vote and equal protection under the law. Until 1920, the principle in the Declaration of Independence that “all men are created equal” offered little comfort to our female population.4 Like the Emancipation Proclamation and Thirteenth Amendment before it, the Nineteenth Amendment represented a substantial step toward change, but discrimination continued to exist in every corner of our society.

The next century was marked by unprecedented shifts in the way people interrelate with and treat each other, bringing an equality revolution for women that continues today. Despite some remaining vestiges of discrimination, there is no denying society’s gradual progress in actualizing our nation’s founding principle that “all [people] are created equal.”

The hundredth anniversary offers an opportunity to remember the people and events impacting this progress. Today’s youth are often amazed to learn that mere decades ago, women were not only barred from certain careers, they were often discouraged and prevented from working outside the home at all. Sure, women could be teachers, secretaries, and nurses, but their other career options were extremely limited. Women also were not welcome in a host of social settings frequented by men, including at clubs, bars, and saloons.5 This article chronicles the efforts of one St. Paul woman to change a social order that was protected for the longest time by the force of law. Her name was Clara Anderson.

The Early Life of Clara Anderson

On August 26, 1909, Klara6 Gradrund Anderson was born7 into a changing world. Her background was shared by many Minnesotans of the era. Clara’s parents, Christian and Gina, emigrated from Norway to the United States in 1905 or 1906, settling in Milan, Minnesota.8 Four of their nine children were born in Norway, and five more, including Clara, were born in Milan. Clara never met one Norwegian-born brother, for he died shortly after the family arrived in the United States.9 Her sister Edith died at fourteen months in 1918.10

When she was fourteen years old, Clara was confirmed at the Kviteseid Lutheran Church in Milan.11 Her formal education ended with grade school.12 Little more is known about her early years in the small Minnesota town.

Clara Makes Her Way to the City

At some point, Clara moved to St. Paul. The 1933 St. Paul City Directory lists a Clara G. Anderson and notes her employment as a waitress residing at 521 E. Minnehaha. The 1934 and 1935 directories list the same residence, with employment as a cook at Gilbert’s Spa.13

In March 1936, Clara began working as a waitress at the Frederic Hotel at 45 East 5th Street on the northeast corner of 5th and Cedar.14 The four-story, 102-room hotel was built in 1903 and originally owned by Fred and Electa Snyder.15Fred ran the hotel, while Electa pursued her career as an opera singer. Brothers John and Carl Hildebrand acquired the hotel around 1930.16

The city directory confirms Clara’s employment as a waitress at the Frederic in 1937. Her residence was 611 W. Central Park Place, Apt. 121. The 1939, 1940, and 1944 directories identify her as a “waiter” at the same hotel with a new residence at 249 W. 6th St., Apt. 110.17 In census documents, Clara listed her occupation as “hotel waitress.”18

Eventually, Clara started working “behind the bar” as a bartender at the Frederic Hotel around 1940. As a waitress, she made $45 per month plus tips, but as a bartender, she earned up to $200 per month, plus room, board, and meals!19

Bessie the Bartender

Before 1920, bars and saloons were an exclusively male domain as Victorian-era morality continued its hold on society.20 Laws banning women from working in saloons were common. According to the 1895 US Census, “there were only 147 female bartenders in all of America compared to 55,660 men.”21

In 1919 and 1920, the one-two punch of suffrage and Prohibition22 empowered women to finally reject “repressive Victorian mores.”23 Soon, “the young woman holding a cocktail in one hand and a ‘torch of freedom’ (Lucky Strike cigarette) in the other, came to symbolize the changing role of women.”24 Nevertheless, society remained generally uncomfortable with the notion of ladies working behind the bar. But before long, another period of social change took root.

With the advent of the first peacetime military draft25 in 1940, young men began trading their jobs for military service. In need of replacements, women were encouraged to enter the workforce. “Peace” quickly dissipated as the country entered the war in its own right in 1941. Shortly thereafter, the iconic Rosie the Riveter moniker appeared, as women supported the war effort by leaving their homes for factories. There were thousands of Rosies in Minnesota, working mostly in the defense industry.26 At the same time, there was also Bessie the Bartender, a term coined by writer Eric Felton “in honor of the women who did their part behind the bar.”27 Although Bessie the Barmaid is a better fit for the era, the term could be considered offensive today.28 One such Bessie was Clara, and there were thousands like her. In fact, in Brooklyn, New York, women bartenders actually organized, forming Bar Maids Local 101.29

The City of St. Paul Enacts an Ordinance

Soon, things changed once again. Germany’s surrender in the spring of 1945 led to efforts to restore the pre-war social order. “Tending bar is a man’s job,” said the president of the Hotel and Restaurant Employees and Bartenders International Union.30 Pushed by bartender unions with male-only provisions in their contracts, state and local governments across the country reversed course and enacted laws prohibiting women from working behind the bar. As one newspaper put it, “Who wants the hand that rocks the cradle mixing whisky sours?”31

On May 11, 1945, the City of St. Paul joined in. That day, the St. Paul City Council approved an amendment to its January 18, 1934 ordinance regulating the liquor business following the repeal of prohibition. According to the council minutes, the ordinance was advanced by the St. Paul Bartenders’ Union, Local 287.32 The union prohibited female membership. Ordinance No. 8604 was virtually identical to similar laws passed in other states33 and read as follows:

(e) No person under twenty-one (21) years of age shall be employed in any rooms constituting the place in which intoxicating liquors are sold ‘on-sale.’ No woman except a licensee or wife of a licensee, or the manager of the establishment if the licensee is in the armed forces, shall dispense liquors behind a bar or counter in an establishment in which intoxicating liquors are sold ‘on-sale.’34

The ordinance was slated to take effect on August 1, 1945. On that date, all of St. Paul’s Bessies, including Clara Anderson, would be out of work.

Clara Goes to Court

Clara decided to fight for her job. She started by retaining one of St. Paul’s preeminent attorneys to challenge the legality of the ordinance. Paul C. Thomas was an Iowa native and a St. Paul Central graduate.35 He received his legal education at the University of Minnesota Law School, graduating in 1915.36 At the time Clara retained his services, Mr. Thomas was the President of the Ramsey County Bar Association. He served as President of the Minnesota Bar Association in 1948–49. Of Mr. Thomas, it was said that “no court reporter was ever found who could keep up with [his] rapid style of speech.”37

Even with her higher bartender wages, it is unlikely Clara could afford Mr. Thomas’s services. It is unknown whether he took the case pro bono or at a reduced fee.

On July 30, 1945, Thomas filed a lawsuit against the City of St. Paul, the Mayor, the Commissioner of Public Safety, and the Chief of Police to secure an order declaring Ordinance 8604 unconstitutional and a permanent injunction—a separate order preventing the government from enforcing the ordinance.38 But first, Thomas made a motion to preserve Clara’s job in case of a lengthy fight in the courts—he needed a temporary restraining order. The motion was supported by a memorandum of law and five affidavits.

The supporting affidavits set the stage for a long legal battle. In one, Clara outlined her twelve-year career working in “on-sale” liquor bars. She worked as a waitress for the first seven years and “behind the bar as a barmaid, dispensing intoxicating liquors” for five years.39 Clara’s affidavit revealed one of her attorney’s litigation strategies—women bartenders are competent and have no problem controlling unruly and intoxicated men. Clara observed that the presence of a woman behind the bar “does in fact improve and elevate the conduct of the patrons” and “no matter how much a patron may be under the influence of liquor, he still respects, and is restrained by the presence of a woman behind the bar.”40 She went on to observe that when a male bartender tries to eject or refuse liquor to a customer, “the patron invariably resents the apparent interference with his rights and liberties [and] becomes quarrelsome and noisy.” She added that most men do not act that way in the presence of a woman.41 Finally, Clara emphasized that she does not consume alcohol, she never had the “slightest difficulty with patrons,” patrons respected her, and “she always conducted herself and the Frederic Bar in a very quiet, orderly, decent and reputable manner.”42

Clara’s other affidavit was presented to establish that enforcement of Ordinance 8604 would cause her “irremediable damage, for which she would have no adequate remedy at law.”43 In other words, absent an order restraining enforcement of Ordinance 8604, “plaintiff will lose her position and will be out of her employment. . . .”44 This second affidavit also supported Clara’s argument that the city had a capricious motive for passing the ordinance—protecting the jobs of male-only members of Bartenders’ Union, Local 287.45 Attached as Exhibit A to the affidavit were minutes of the May 4, 1945 city council meeting, which, according to Clara’s affidavit, establish:

that said ordinance was not adopted for any purpose affecting the welfare or health of the citizens of the City of Saint Paul, but was enacted at the request of the Bartenders’ Union for the purpose of creating a sufficiency of jobs for members of the Union, and of forcing all “on-sale” employers, whether under contract with the Union or not, to live up to the portion of the Union’s contract prohibiting the employment of women as bartenders.46

  The motion for a temporary restraining order was further supported by an affidavit from Frederic Hotel co-owner, John Hildebrand. According to Mr. Hildebrand, Clara was employed for “some years past” as a bartender, and the bar has no contract with the Bartenders’ Union.47 He described Clara as “honest, capable, industrious and law-abiding.”48 However, as a law-abiding employer who has “no other place” for Clara, he would have “no alternative but to refuse to employ plaintiff” effective the close of business on July 31, 1945, if Ordinance 8604 were to take effect.49

The final two supporting affidavits were sworn out by other local bar owners, neither of whom were under contract with Local 287. According to Carl Fink, owner and operator of Fink’s Bar, it was necessary to employ two women as bartenders when he and his father were absent on bar business. He attested to their honesty and capability and indicated that each was advised of their pending termination if Ordinance 8604 were to take effect on August 1, 1945.50

Crucial testimony came from Blanch Parrish, owner of a tavern and restaurant at 752 West Seventh. Her affidavit laid the foundation for a more nuanced discrimination challenge planned by Mr. Thomas—Ordinance 8604 illegally discriminates between classes of women. Ms. Parrish and her daughter served as bartenders from time to time, but Ms. Parrish also employed another female bartender. Thus, without an order preventing enforcement of the new law, Ordinance 8604 would require Ms. Parrish to fire her female bartender even though the ordinance did not preclude the continued bartending work of Ms. Parrish as owner and licensee.51

Ramsey County District Court Judge Carlton F. McNally presided over the motion.52 On July 31, 1945, Judge McNally issued what Clara’s lawyer was looking for—an order temporarily restraining enforcement of the ordinance and directing the defendants to demonstrate at a hearing on August 6, 1945, why his order should not apply all the way through the trial. Ordinance 8604 was unenforceable for the time being.53

The defendants filed their response through the city’s Assistant Corporation Counsel, Ira Karon. In addition to a legal memorandum, he submitted affidavits from Mayor John McDonough, four St. Paul commissioners (now called city council members), and four local male bartenders who spoke of their experience working beside female bartenders The mayor and the commissioners told the court that Ordinance 8604 was enacted to further the best interest of St. Paul citizens, to regulate the liquor business, and to promote the general welfare of the city.54

In their affidavits, Eddie Ferguson, Charles Hynes, and Lewis Levin testified that they were employed as bartenders at Boyd and Skog in St. Paul.55 They attested to observing female bartenders at work in the presence of male patrons:

who have imbibed said liquors [and who] very often used vile and obscene language when in conversation with other customers . . . which was overheard by the woman bartender. . . . That . . . affiant heard patrons use vile and indecent language to the woman bartender and has heard persons become noisy, offensive, quarrelsome and abusive toward the woman bartender upon her refusal to sell such patrons additional drinks.56

After hearing oral arguments on August 6, 1945, Judge McNally took Clara’s motion for a temporary injunction under advisement. The temporary restraining order remained in effect.

Judge McNally Rules for the City

On September 5, 1945, Judge McNally denied Clara’s motion for a temporary injunction and lifted the temporary restraining order. The judge’s memorandum emphasized his role “not to determine the desirability of the legislation.”57 He explained that the ordinance must be upheld “unless the Council [acted] in an arbitrary, capricious or unreasonable manner.” Judge McNally ruled that the motive behind passage of the ordinance was “immaterial so long as the Council acted within the scope of its authority.”58

The judge then addressed Clara’s contention that Ordinance 8604 created an unconstitutionally unreasonable classification between women bar owners who bartend and women employed as bartenders. He started with the proposition that there is no constitutional right to sell intoxicating liquor. The judge’s order relied upon a December 16, 1941 opinion of the Minnesota Attorney General expressing the view that our courts would likely uphold an ordinance “forbidding the employment of women as barmaids or bartenders in places where intoxicating liquor is sold.”59 He also relied upon and quoted at length decisions upholding virtually identical laws in New Jersey and California.60 Judge McNally ended the ruling where he began: “without consideration of the advisability of such legislation, [the court] must sustain the legislation and deny plaintiff’s motion for an order restraining [enforcement of the ordinance] pending the trial.”61

Appeal, Trial, Dismissal, Appeal

Clara quickly filed an appeal with the Minnesota Supreme Court.62 With an appeal pending, the case went to court trial on February 5, 1946, before Judge Albin S. Pearson. Fighting through continuous objections, Mr. Thomas put on his case, calling Clara and seven other witnesses, including two hostile witnesses from bartenders’ unions. Most of the objections were overruled, the court indicating, “I want to hear the testimony.”63 The testimony largely mirrored the content of the earlier affidavits.64 However, John Hildebrand seemed to pull back from his affidavit when it came to Clara’s future employment. Asked if Clara would have a job if the ordinance were upheld, he responded, “Well, I must say I certainly wouldn’t leave a very efficient employee like she is to somebody else; there always would be an opening naturally.”65

  The strong views of Bartenders’ Union, Local 287 also came through loud and clear. The Local 287 agent George Ward portrayed union support for the ordinance as a moral issue, that is “not to have so-called barmaids all over town” and “to put men back to work.”66 He punctuated his testimony by adding, “I don’t think it is the right place for any woman back of the bar.”67 Mr. Thomas rested.

  Despite giving Clara and her attorney the opportunity to put in a case, the trial court promptly granted a defense motion to dismiss “on the ground that . . . the plaintiff has failed to prove a cause of action.”68 Thereafter, Mr. Thomas filed a second appeal from the final judgment. The Minnesota Supreme Court consolidated the two appeals.69 During the appeals, Ordinance 8604 remained unenforced, and Clara continued tending bar.70

On May 7, 1948, in a 4–3 decision, the Minnesota Supreme Court affirmed the lower court rulings.71 Justice Harry H. Peterson72 wrote for the majority. On the question of whether the ordinance deprived Clara of her liberty or property without due process of law in violation of Article I, Section 7 of the Minnesota Constitution and the Fourteenth Amendment of the United States Constitution,73 the court agreed with Judge McNally. The majority proceeded on the premise that it could not question the motives of the city council nor should it take a position on the “wisdom of the ordinance.”74 The court found no inherent right in a citizen to sell intoxicating liquors.75 It quoted United States Supreme Court precedent, noting that liquor “‘may . . . be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority.’”76 Because “prohibiting one from engaging in the business of selling intoxicating liquor does not constitute a deprivation of either liberty or property, state and local regulations prohibiting the employment of women in places where intoxicating liquor is sold for consumption on the premises do not deprive women of liberty or property.”77

The court next turned to Clara’s claim of discrimination on the basis of sex in violation of the equal protection clause of the Fourteenth Amendment. The court first recognized the bedrock principles of equal protection: “equal protection of the laws means that the rights of all persons must rest upon the same rule under the same circumstances. It requires equality of application of the laws, that all similarly circumstanced be treated alike.”78 However, in 1948, equal application of the law was viewed through the lens of the customary rational basis test. Under the test, a legislative classification based on sex does not deny equal protection if it bears “some fair and substantial relation to the objects of the legislation. The difference between the subjects need not be great, and if any reasonable distinction between the subjects as a basis for classification can be found, the legislative classification should be sustained.”79

The court held that the classification between men and women bartenders “rests upon a substantial difference between the sexes.”80 The court found:

[a] factual basis for the city council’s determination that there is a difference between men and women with respect to their ability and suitability to maintain peace and good order in such places. This, we think, is true in spite of the oft-asserted claim that as a matter of medical fact females are the stronger and not the weaker sex. And it is no less true because occasionally some woman demonstrates that she has the physical strength and disposition to be a so-called ‘bouncer.’81

The court also found the ordinance supported by strong public policy because “. . . permitting the employment of women as bartenders encourages the presence of women in drinking places as patrons thereof. It is needless to add that thereby drinking among women would be encouraged and that such a result is against the public interest.”82

Finally, the majority addressed Clara’s challenge to the constitutionality of the ordinance due to its distinction between women bartenders as employees and as licensees or spouses of licensees or managers if the licensee is in the armed forces. The court found the marital relationship to be a valid basis for the classification in Ordinance 8604 because:

her interest is that of her husband. It is reasonable to assume that a male licensee of a place selling intoxicating liquor ‘on sale’ has such control over his wife because of their relationship and that she has such financial interest in the lawful conduct of his business as to furnish sufficient safeguard against any violation of regulations imposed upon the business by public authority.83

Similarly, the court found reasonable the classification that permits female bartenders if they are the manager employed by a licensee who is in the armed forces. Thus:

[The] distinction between a manager and other women, including those employed as waitresses, is fundamental. It bears upon responsibility and control. The assumption underlying the ordinance is that the relationship of owner and managing agent justifies the belief that the agent will faithfully discharge the duties of the owner and thus comply with the ordinance.84

At the end of the day, the low threshold for sustaining a law or ordinance under the rational basis test prevailed. Ordinance 8604 survived because “. . . even where we might think that the arguments against the policy, expediency, wisdom, and propriety of the ordinance outweigh those in favor of it, it is our duty to sustain the ordinance if there is any reasonable basis for it.”85

Chief Justice Loring Dissents

In a sharply worded dissent, Chief Justice Charles Loring wrote that the ordinance should be invalidated as unreasonable, oppressive, and discriminatory.86 He would not have reached the constitutional question, he flatly rejected the idea that a reasonable distinction could be made between male and female bartenders, and he decried the majority’s failure to recognize that times have changed:

Most of the cases relied upon by the majority are 40 years old or more. Formerly, barrooms catered only to men. Women of good character did not patronize the open saloon. To do so would have besmirched their reputations. Now, in many cases, as shown by the evidence herein, women form a major part of the patronage of the barroom. Hotels and clubs have women’s cocktail lounges. Women of good character not only patronize bars, but are employed as waitresses, hostesses, and bartenders. No one in this state has been heard to say that their employment in such establishments has been a hazard to public morals or health or to the regulation of the liquor business.87

Furthermore:

the promoters and supporters of the ordinance here under consideration admit with commendable candor that, while they do not like women behind the bar, they are interested chiefly in providing jobs for men. . . . In my view, the ordinance unreasonably discriminates against women serving liquor from behind the bar in favor of men and of those women who are free to accept employment in any of the other capacities in which they are commonly employed in a barroom. . . .88

The Chief Justice also took on the view of women supported by the majority and courts around the country. The conclusion of a three-judge panel in Michigan that women are less able than men to determine whether customers are underage or intoxicated was not “sound.”89 To him, the idea that mixing drinks “might be an unwholesome influence on the women so employed . . . loses its force when applied merely to the dispensing of drinks from behind the bar, as distinguished from employment elsewhere in the barroom.”90 Finally, he rejected a New Jersey court’s conclusion that women bartenders are “more likely than men to induce vice and immorality.”91 The Chief Justice ended his dissent with a warning:

The principal ground upon which the majority justify [sic] the discrimination against women as mixers of drinks behind the bar is that they do not consider them good “bouncers.” They say they do not have the “physical strength or disposition” to keep order in the barroom. Even if this were true, a complete answer to that, if proprietors desire to have women bartenders and also to hire male bouncers, is that to prohibit such proprietors from so doing is an unjust discrimination against women. Women have always accomplished more by diplomacy than men by violence. . . . If physical and mental capacity is to be the basis for classification of those eligible to tend bar, some other distinction than that of sex will have to be found. Under the ordinance, Mr. Milquetoast and Mr. Wimple, but not Tugboat Annie nor Mrs. Wimple nor Emma Maddon92 could qualify to assume the heavy responsibilities incident of mixing drinks behind the bar. I fear that this case will be regarded as an invitation to pressure groups to seek to bar women from jobs which they desire to preserve for men and that it will result in unjust discrimination in other vocations.93

The United States Supreme Court Weighs In

On December 20, 1948, only months after the Minnesota Supreme Court rejected Clara’s appeal, the United States Supreme Court affirmed the Michigan case criticized by Chief Justice Loring. Like the St. Paul ordinance, the Michigan statute upheld by the court was enacted in 1945 and prohibited women from employment as bartenders unless they were the wives or daughters of a male owner.94 Writing for the 6–3 majority in Goesaert v. Cleary,95 Justice Felix Frankfurter echoed the rational basis language employed by the Minnesota Supreme Court when it upheld Ordinance 8604.

Justice Frankfurter seriously presented the legal issue: may Michigan forbid females from tending bar while permitting the wives and daughters of male owners to do so? But he responded sarcastically, “Beguiling as the subject is, it need not detain us long.”96 True to his word, Justice Frankfurter’s opinion was a fraction of the length of Anderson, beginning with the proposition that states may control liquor traffic and even “forbid all women from working behind a bar.”97

This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.98

Holding that the Constitution only prohibits “irrational discrimination” and finding the Michigan statute “not without a basis in reason,” the lower court decision was affirmed.99

  Shorter, but just as terse as Chief Justice Loring’s dissent, the Goesaert dissenters called out the Michigan statute for creating “invidious distinctions.”100 Prohibiting a female owner and her daughter from working at the bar “even if a man is always present in the establishment . . . belies the assumption that the statue was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids.”101

Aftermath of the Case

Very little is known about Clara Anderson’s life after the Minnesota Supreme Court upheld the St. Paul ordinance. True to his trial testimony, John Hildebrand retained Clara’s services even though the St. Paul ordinance was not nullified. The St. Paul City Directory lists Clara as either a waiter or a waitress at the Frederic Hotel in 1948, 1950, and 1951.102 As an aside, the Frederic Hotel burned down January 20, 1961, the same day as John F. Kennedy’s Presidential Inauguration. It sustained $350,000 in damage, and the remains of one man were recovered when the building was demolished.103 It appears that Clara moved to another apartment and worked at other restaurants in the late 1950s.

There are few alive today who knew Clara. Her nephew Monte G. Anderson was born in December 1937. He is now eighty-two years old. Monte is the son of Clara’s brother Erling, and he grew up on the family farm near Milan. His Aunt Clara occasionally visited the farm, staying a few days at a time.104

Monte recalls the gift of a radio from his aunt in 1950 so he could listen to Minneapolis Lakers basketball broadcasts while bedridden with rheumatic fever for six months. In 1951, thirteen-year-old Monte traveled to the Twin Cities with two of Clara’s brothers to see a Lakers game in person. He stayed overnight in St. Paul with his Aunt Clara. He knew Clara was involved in a lawsuit in the 1940s only because his parents told him about it. Unfortunately, no other family is left to share her story.105

Clara Anderson died from pneumonia as a complication of esophageal cancer on June 22, 1975, at Regions Hospital, just shy of her sixty-sixth birthday. She resided at 325 Laurel Avenue106 at the time of her death. She never married or had children. The death certificate lists Clara’s occupation as a retired café waitress—her short career as a bartender apparently long forgotten. She is buried in the town of her birth, Milan, Minnesota.107 When Clara died, it is not known whether she ever learned the fate of either the ordinance that took away her occupation or the legal doctrine that saved the ordinance.

The Legal Legacy of Anderson v. City of St. Paul

Anderson v. City of St. Paul and its federal counterpart Goesaert v. Cleary remained the law of the land for nearly two decades. In fact, neither case has been expressly overruled. Yet, legislative action largely negated the decisions without court action. At the federal level, Congress enacted Title VII as part of the 1964 Civil Rights Act.108 Thereafter, no business employing more than fifteen persons could discriminate legally on the basis of a person’s sex.

In 1955, the Minnesota legislature passed the precursor of the Minnesota Human Rights Act. Although the statute prohibited employment discrimination based on race, color creed, religion, or national origin,109 it said nothing about sex discrimination until the words “or sex” were added in 1969.110 In St. Paul, Ordinance 8604 was repealed in 1970.111 The city’s current human rights ordinance prohibits employment discrimination on the basis of sex.112 

As for the courts, it was not until the United States Supreme Court replaced the “rational basis” framework for reviewing alleged infringements of fundamental constitutional rights with a more rigorous intermediate and strict scrutiny analysis in the 1970s that the legal underpinnings of Goesaert and Anderson crumbled.113 Even with the Supreme Court’s Craig v. Boren ruling,114 Goesaert was not expressly overruled. Instead, the court “disapproved” of Goesaert in a footnote.115

The Minnesota Supreme Court has not even “disapproved” of Anderson. In fact, the case is still occasionally cited for the proposition that Minnesota’s Due Process of Clause is not more restrictive than the Due Process Clause of the federal Fourteenth Amendment.116

Raise a Glass!

Clara Anderson was an unlikely hero. The child of immigrants, she quietly went about life in her adopted city of St. Paul. However, when the St. Paul City Council passed an ordinance designed to hand her job over to a man, she refused to accept the outcome. Although Clara did not win in the short term, her legal battle likely helped lay the groundwork for an evolving view of both women in the workplace and the safeguards embodied in the Equal Protection Clause of the Fourteenth Amendment.

So, next time a female bartender mixes you a drink in a public drinking establishment, do not forget to offer a toast to Clara Anderson.

Special thanks: to Susan Guthmann Henry for her genealogical research. Through her efforts, we were able to find and contact Clara Anderson’s family. Thanks also to Monte Anderson and Kevin Anderson for their cooperation, information, and photographs of Clara. Finally, the author acknowledges the legal research conducted by his law clerk, Alex Neuman.

Footnotes

  1. Renamed Mitchell Hamline School of Law in 2015. ↩︎
  2. Bradwell v. State, 83 U.S. 130, 141 (1873) (Bradley, J., concurring) (upholding Illinois Supreme Court decision to deny Myra Bradwell a law license). ↩︎
  3. Justice Ruth Bader Ginsburg, Ailing or No, Ginsburg Maintains Busy Public Life, MINNESOTA LAWYER (December 19, 2019), https://minnlawyer.com/2019/12/18/ailing-or-no-ginsburg-maintains-busy-public-life/. During her October 5, 1976 oral argument in Goldfarb v. Califano, Justice Ginsburg used the phrase and attributed it to Burnita Shelton Matthews, the first female federal court judge. Califano v. Goldfarb, OYEZ, (April 20, 2020), https://www.oyez.org/cases/1976/75-699. A nearly identical phrase was used by Justice William Brennan in Frontiero v. Richardson, 411 U.S. 677, 684 (1973). ↩︎
  4. In 1848, Elizabeth Cady Stanton and Lucretia Mott invited delegates to the Seneca Falls Convention in Seneca Falls, New York. There, they proclaimed the Declaration of Sentiments, which stated, “all men and women are created equal.” Women’s Suffrage, HISTORY (April 4, 2020), https://www.history.com/topics/womens-history/the-fight-for-womens-suffrage. ↩︎
  5. As an example, at the prestigious Saint Paul Athletic Club, women, including spouses of members, could only enter through a separate side entrance until the 1960s. When women finally were admitted to membership on their own, only single, widowed, or divorced women could join. Married women could belong only through spousal privilege. Even after the side entrance closed, women were not allowed to occupy the lobby lounge area or dine in the third-floor grill until well into the 1970s. Interview with Sherry Howe, Former Secretary to the Food & Beverage Manager and Assistant Manager of the Saint Paul Athletic Club from 1978–1988 (April 5, 2020). ↩︎
  6. It is not clear when or how the spelling of her first name became “Clara.” She is referred to as “Clara” throughout this article. ↩︎
  7. Clara Gradrund Anderson, ANCESTRY.COM. See Baptismal Record, Kviteseid Lutheran Church, Milan, MN. ↩︎
  8. Gina Andreasdatter Anderson was born in 1874 and died on December 13, 1941. Christian S. Anderson was born in 1878 and died on December 7, 1953. Both died in Chippewa County, Minnesota. Clara Gradrund Anderson, ANCESTRY.COM. ↩︎
  9. Email from Monte Anderson to John H. Guthmann, Chief Judge of Minnesota’s Second Judicial District (August 13, 2019). ↩︎
  10. Clara Gradrund Anderson, ANCESTRY.COM. ↩︎
  11. Id. ↩︎
  12. Record (hereinafter R.) at 4, Anderson v. City of St. Paul, Nos. 34163, 34281 (Clara Anderson testimony, Feb. 5, 1946). ↩︎
  13. St. Paul City Directories 1933, 1934, 1935 (St. Paul: R.L. Polk & Co., 1933–35), 95, 40, 40. ↩︎
  14. R. at 4, Anderson v. City of St. Paul(Anderson testimony). In her 1946 testimony, Clara confirmed that she worked as a cook and waitress at Gilbert’s Spa, a nightclub at the corner of 5th and Robert Streets, before her employment at the Frederic Hotel. ↩︎
  15. Larry Millett, Fires in Downtown St. Paul Reshaped the Cityscape in the 1950s and ’60s, MINNEAPOLIS STAR TRIBUNE, Dec. 20, 2019, https://www.startribune.com/fires-in-downtown-st-paul-reshaped-the-cityscape-in-the-1950s-and-60s/566377712/. Today, the site is the location of the Alliance Bank Building, which opened as the Northwestern Bank Building in 1969. 33, Anderson v. City of St. Paul, Nos. 34163, 34281 (John Hildebrand testimony, Feb. 5, 1946). ↩︎
  16. R. at 33, Anderson v. City of St. Paul, Nos. 34163, 34281 (John Hildebrand testimony, Feb. 5, 1946). ↩︎
  17. St. Paul City Directories 1937, 1939, 1941, 1944 (St. Paul: R.L. Polk & Co., 1933–44), 42, 41, 44, 42. ↩︎
  18. “Clara G. Anderson,” 1940 United States Federal Census: St. Paul, Ramsey, Minnesota, accessed April 9, 2020, ancestry.com. ↩︎
  19. R. at 5, and R. at 11–12, Anderson v. City of St. Paul (Anderson testimony). ↩︎
  20. CHRISTINE SISMONDO, AMERICA WALKS INTO A BAR: A SPIRITED HISTORY OF TAVERNS AND SALOONS, SPEAKEASIES AND GROG SHOPS 221–22 (New York, NY: Oxford University Press, 2011). ↩︎
  21. Id. at 240. ↩︎
  22. Despite prohibition laws, people, including women, were drinking—in speakeasies. Many authorities looked the other way when it came to enforcement of prohibition, and they did the same when it came to many of the social mores that kept women at home. ↩︎
  23. SISMONDO, supra note 19, at 222–23. ↩︎
  24. Id. at 222. ↩︎
  25. Congress passed what became known as the Burke-Wadsworth Act on September 16, 1940, instituting the country’s first peacetime draft. Selective Training and Service Act of 1940, Pub. L, 76-783 (1940). ↩︎
  26. Rosie the Riveter, Minnesota Military Museum, FACEBOOK (March 28, 2020), https://www.facebook.com/MinnesotaMilitaryMuseum/posts/rosie-the-riveterwomen-working-in-factories-building-planes-tanks-and-ships-oper/10154031954018293/. The state’s largest defense factory was the Arden Hills Twin Cities Ordnance Plant. The ammunition production facility employed as many as 24,000 workers. In addition, over 6,000 workers outfitted B-24 bombers with military equipment at Holman Field in St. Paul. ↩︎
  27. Eric Felton, Women Behind Bars, THE WALL STREET JOURNAL, April 25, 2009. ↩︎
  28. See Cara Strickland, The Women Who Held Down the Bar During World War II, TALES OF THE COCKTAIL, https://talesofthecocktail.com/history/bessie-bartender-history-women-behind-bar-during-wwii. ↩︎
  29. SISMONDO, supra note 19, at 242. ↩︎
  30. Jeanette Hurt, A Short History of Woman Working Behind the Bar, THRILLIST (Feb. 22, 2020), https://www.thrillist.com/culture/women-bartender-history. ↩︎
  31. SISMONDO, supra note 19, at 243; Meredith Heil, Bessie the Bartender: America’s Female Mixologist Revolution, VINE PAIR, INC. (April 2, 2020), https://vinepair.com/wine-blog/bessie-the-bartender-americas-female-mixologist-revolution/. ↩︎
  32. Second Anderson Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  33. As discussed later, a nearly identical provision enacted in 1945 by the State of Michigan was upheld by the United States Supreme Court in Goesaert v. Cleary, 335 U.S. 464 (1948). ↩︎
  34. Ordinance No. 8604, amending section 23, paragraph (e) of Ordinance No. 7537. ↩︎
  35. “Memorial for Paul C. Thomas,” Memorial Services for Deceased Members of the Ramsey County Bar Association, Ramsey County Bar Association, April 30, 1982, 3–4. ↩︎
  36. “Memorial for Paul C. Thomas,” 3. Paul Thomas joined his father in practicing law in a firm which was eventually known as Thomas, King, Swenson, Collatz & Ryan. ↩︎
  37. “Memorial for Paul C. Thomas,” 3–4. ↩︎
  38. Compl. ¶ XX, Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  39. First Anderson Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  40. Id. ↩︎
  41. Id. ↩︎
  42. Id. ↩︎
  43. Second Anderson Aff. ↩︎
  44. Id. ↩︎
  45. Compl. ¶¶ IX–X, XV, Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  46. Second Anderson Aff. ↩︎
  47. Hildebrand Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  48. Id. ↩︎
  49. Id. ↩︎
  50. Fink Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). ↩︎
  51. Parrish Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 30, 1945). It is not clear whether Ms. Parrish’s daughter could have continued tending bar. Under Ordinance 8604, she would have to be manager of the bar or party to the liquor license to work as a female bartender. ↩︎
  52. Carlton Francis McNally was born in Oakdale, Massachusetts, in 1886. He came to St. Paul with his family in 1902, where he worked for his father’s meat business. He pursued a legal education at the St. Paul College of Law (now the Mitchell Hamline School of Law), graduating in 1910. He joined with M.J. Doherty to open a law firm in 1912. He entered the military in 1917 and saw action in France as a lieutenant in the 340th Machine Gun Battalion 89th Division. After the Armistice, he returned home, becoming Assistant Corporation Council to the City of St. Paul. He was “Corporation Counsel” (St. Paul City Attorney) at the time of his appointment to the Ramsey County District Court bench in 1925. A member of the Board of Directors of the local Boy Scout Council, he presented the Eagle Scout badge to every young man in St. Paul who earned the award. Judge McNally was elected by his peers as Chief Judge in 1957, and he retired in 1959. He died in 1962. “Memorial for Carlton Francis McNally,” Memorial Exercises for Deceased Members of the Ramsey County Bar Association, Ramsey County Bar Association, April 13, 1963, 3–5. ↩︎
  53. Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Jul. 31, 1945). ↩︎
  54. McDonough Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Aug. 3, 1945). Commissioners John S. Findlan, W.A. Parranto, Robert F. Peterson, and Milton Rosen filed identical affidavits. ↩︎
  55. Ferguson, Hynes, & Lewis Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Aug. 6, 1945). ↩︎
  56. Ferguson, Hynes, & Lewis Aff., Gus Finstad, a bartender at Wally’s Bar, said the same thing in his affidavit. Finstad Aff., Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Aug. 6, 1945). ↩︎
  57. Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Sept 5, 1945). ↩︎
  58. Id. ↩︎
  59. See Atty. Gen. Op., Dec 16, 1941. ↩︎
  60. Anderson v. City of St. Paul, File No. 253703 (Ramsey Co. Dist. Ct. Sept. 5, 1945) (citing City of Hoboken v. Goodman, 68 N.J. Law 217, 51 Atl. 1092 (1902); People v. Jemnez, 121 P.2d 543 (1942). ↩︎
  61. Id. ↩︎
  62. In the 1940s, the Supreme Court was made up of seven justices, and there was no Minnesota Court of Appeals. ↩︎
  63. R. at 3, Anderson v. City of St. Paul, Nos. 34163, 34281 (Feb. 5, 1946 court trial record). ↩︎
  64. Id. at 3–94. ↩︎
  65. Id. at 45 (Feb. 5, 1946 John Hildebrand testimony). ↩︎
  66. Id. at 54 (Feb. 5, 1946 George Ward testimony). ↩︎
  67. Id. at 54. ↩︎
  68. Id. at 94 (Feb 5, 1946 court trial record). ↩︎
  69. Id. at 109 (Minnesota Supreme Court order of May 28, 1946). ↩︎
  70. “Woman Barkeep Will Carry Struggle For Her Job To State Supreme Court,” St. Paul Dispatch, February 8, 1946. ↩︎
  71. Anderson v. City of St. Paul, 226 Minn. 186, 32 N.W.2d 538 (1948). ↩︎
  72. Harry H. Peterson was a St. Paul native and graduated from the University of Minnesota Law School in 1912. He served as an Assistant County Attorney and the Ramsey County Attorney from 1923–1926. In 1932, he was elected Minnesota Attorney General. He resigned to accept an appointment to the Minnesota Supreme Court in December 1936. He resigned from the Minnesota Supreme Court in 1950 to run as the Democratic-Farmer-Labor (DFL) candidate for governor. After losing the election, he practiced law in Minneapolis. Later, he founded and was dean of the Midwestern College of Law, which later became Hamline University Law School, now the Mitchell Hamline School of Law. Justice Peterson died on January 23, 1985. See Minnesota State Law Library Research Guides, https://mncourts.libguides.com/hhpeterson. ↩︎
  73. The court reiterated the principle that the due process clause of the Minnesota Constitution is not more restrictive than the due process clause of the federal Fourteenth Amendment. Anderson, 226 Minn. at 190, 32 N.W.2d at 541. ↩︎
  74. Id. at 204, 32 N.W.2d at 548. ↩︎
  75. Id. at 189–90, 32 N.W.2d at 541. ↩︎
  76. Id. at 191, 32 N.W.2d at 541 (quoting Crowley v. Christensen, 137 U.S. 86, 91 (1890)). ↩︎
  77. Id. ↩︎
  78. Id. at 194, 32 N.W.2d at 543 (citations omitted). ↩︎
  79. Id. at 195, 32 N.W.2d at 543 (citations omitted). ↩︎
  80. Id. at 196, 32 N.W.2d at 544. ↩︎
  81. Id. at 197, 32 N.W.2d at 545. ↩︎
  82. Id. at 198, 32 N.W.2d at 545. ↩︎
  83. Id. at 201, 32 N.W.2d at 546–47 (citations omitted). ↩︎
  84. Id. at 202, 32 N.W.2d at 547. ↩︎
  85. Id. at 203, 32 N.W.2d at 548. ↩︎
  86. Anderson, 226 Minn. at 205, 32 N.W.2d at 548 (Loring, CJ, dissenting). Chief Justice Charles Loring was born in St. Croix County, Wisconsin, in 1873, moving with his family to Clay County, Minnesota, in 1877. He was educated at State Normal School at Moorhead, Phillips Exeter Academy, and the University of Minnesota Law School and served in the Judge Advocate’s Corps during World War I. He was appointed Associate Justice of the Minnesota Supreme Court in 1930 and was appointed Chief Justice in 1944. Loring retired from the court in 1953 and died in 1961. See Minnesota State Law Library Research Guides, https://mncourts.libguides.com/loring. ↩︎
  87. Anderson, 226 Minn. at 209, 32 N.W.2d at 550–51 (Loring, CJ, dissenting). ↩︎
  88. Id. at 209, 32 N.W.2d at 551 (Loring, CJ, dissenting). ↩︎
  89. Id. at 210–11, 32 N.W.2d at 550 (Loring, CJ, dissenting) (citing Goesaert v. Cleary, 74 F. Supp. 735 (E.D. Mich. 1947), aff’d, 335 U.S. 464 (1948)). The Chief Justice said “. . . certainly a woman’s perceptions are as keen as a man’s in this respect.” ↩︎
  90. Id. at 211, 32 N.W.2d at 552 (Loring, CJ, dissenting) (citingPeople v. Jemnez, 121 P.2d 543 (1942)). ↩︎
  91. Id. (citing City of Hoboken v. Goodman, 68 N.J. Law 217 (1902)). ↩︎
  92. Id. at 212 n.5, 32 N.W.2d at 551 n.5. Chief Justice Loring’s footnote identified Emma Maddon as a New York streetcar conductor who singlehandedly ejected a belligerent passenger from her car. ↩︎
  93. Id. at 211–12, 32 N.W.2d at 551 (Loring, CJ, dissenting). Chief Justice Loring’s prediction proved accurate. In 1948, seventeen states had laws against women bartenders, but the number grew to twenty-six by 1960. See Hurt, supra note 29. ↩︎
  94. Public Acts of Michigan, No. 133, § 19a (1945). ↩︎
  95. Goesaert v. Cleary, 335 U.S. 464 (1948). ↩︎
  96. Id. at 465. ↩︎
  97. Id. ↩︎
  98. Id. at 466. ↩︎
  99. Id. ↩︎
  100. Id. at 468 (Rutledge, J., dissenting). ↩︎
  101. Id. ↩︎
  102. St. Paul City Directories 1948, 1950–1951 (St. Paul: R.L. Polk & Co., 1948–1951), 43, 38. ↩︎
  103. “Frederic Hotel Burns,” St. Paul Dispatch, January 21, 1961, 1. ↩︎
  104. Anderson, email. ↩︎
  105. Anderson, email. ↩︎
  106. Now known as the Neill Hi-Rise. ↩︎
  107. Clara Anderson, death certificate, Minnesota Historical Society. ↩︎
  108. Pub. L. 88-352, Title VII, 78 STAT. 255 (Jul. 2, 1964) (codified as 42 U.S.C. § 2000e–2(a)). ↩︎
  109. Act of April 19, 1955, ch. 516, § 5, 1955 MINN. LAWS 804. ↩︎
  110. Act of June 6, 1969, ch. 975, § 3, 1969 MINN. LAWS 1938 (prohibiting employment discrimination based on race, color, creed, religion, national origin, “or sex”). ↩︎
  111. Council File No. 249196, Ord. No. 14510 (Jun. 23, 1970) (amending section 308.23, subdiv. 5 of the 1967 St. Paul Legislative Code). ↩︎
  112. St. Paul Code of Ordinances, Title XVIII, Ch. 183. ↩︎
  113. Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (“Classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”); Reed v. Reed, 404 U.S. 71, 75–76 (1971) (Classifications based on sex must be substantially related to the achievement of an important governmental objective.). ↩︎
  114. Craig v. Boren, 429 U.S. 190, 204–05 (1976). The Twenty-First Amendment does not protect gender-based discrimination from an equal protection challenge. ↩︎
  115. Id. at 210 n.23. ↩︎
  116. E.g., Kahn v. Griffin, 701 N.W.2d 815, 826 (2005). From the reasoning of Kahn, it can be inferred that Anderson is no longer the prevailing view in Minnesota. ↩︎