Constitutional Showdown: Strip Clubs v. the State Liquor Authority
In another round of The Pandemic v. The Constitution, Owners of some of the major New York “Exotic Dance” clubs sued the Governor and the State Liquor Authority for not allowing them to re-open yet while other businesses are phasing in. In this constitutional law arena, the bottom line question is always: Can the State Reasonably and Effectively Address the Health Emergency with Less Restrictive Measures?
In their lawsuit, the essential argument is that other businesses, such as night clubs, lounges, restaurants, wedding venues, billiard halls and gyms have all been allowed to, at least partially, re-open. The strip club owners’ suit says the State has never publicly explained how these businesses are any less likely to spread COVID. They essentially claim the State is singling them out for their content. They interestingly point out that according to the September – November 2020 Statewide Contact Tracing Data “Arts & Entertainment” accounted for 0.08% of the spread, and gyms accounted for only 0.06%. Private household gatherings accounted for a whopping 74% of all the COVID spread.
Does the club owners’ argument hold water?
The best way to decide this question is to look at what other activities hold the most comparable risk of spreading COVID. In other words: HOW UP CLOSE AND PERSONAL ARE WE GETTING HERE?
One that comes to mind is dancing at a wedding, which is now permitted
Two wedding guests dancing have more face to face contact during one song than a dancer and a patron have during a lap dance. This helps the club owner’s argument, but there are a few twists in the wedding dancing regulation:
- – weddings are limited to 150 people;
- – every guest must show a negative COVID test within 72 hours before the wedding;
- – dancing is limited to “Dance Zones”, which cannot be less than 36 square feet; and
- -The big difference – You’re only allowed to dance in your own “Dance Zone” with the people seated at your own table, up to a – maximum of 10 people at a table. When deciding the constitutional question, the judge must close his/her eyes to the fact that this rule will be broken at every wedding and assume it will always be obeyed. Therefore, it seems this argument doesn’t really help the club owners too much, because they can’t limit the size of the groups that come into contact to 10 people, and although they can have the dancers get tested regularly, requiring patrons to show proof of a COVID test within the last 72 hours will probably not work well.
The other example which is useful for comparison is martial arts, which involves heavy breathing and zero social distancing. According to the state regulations, martial arts is clearly a “higher risk” activity for COVID transmission purposes, and effective February 21, 2021, people can participate in individual or distanced group training and organized no/low contact group training, and even then, only as permitted by the county health departments. So this really doesn’t help the club owner’s arguments either.
This doesn’t really appear to be a serious constitutional challenge, partially because everyone recognizes that strip clubs will be permitted to re-open long before the lawsuit ever gets anywhere. In the humble opinion of this writer, these lawsuits are only brought in an attempt to get press attention and bring more pressure to bear on authorities to open up faster.
While exotic dancing might not be an “essential activity”, it is pretty essential for all the people who work there. They still have mouths to feed, so give them this day their daily bread.