By: Michael E. Solimine*, Michelle Brodersen**
Abstract
In 1948, the United States Supreme Court in Goesaert v. Cleary upheld the constitutionality of a Michigan statute which prohibited women from serving as bartenders. It was one of a series of decisions which employed highly deferential rational basis scrutiny to uphold laws that discriminated based on sex. Those decisions came to constitute an “anti-canon” of highly criticized cases, and they were eventually overruled in a series of decisions by the Burger Court, which adopted a more intensive judicial scrutiny for gender discrimination. The change was famously the result of concerted legal mobilization led by then-Professor Ruth Bader Ginsburg and other lawyers and activists.
There is extensive literature addressing and analyzing the legal and social trajectory of Goesaert. This Article contributes to this literature by focusing on two underappreciated aspects of Goesaert and its legacy. One factor is nepotism: the Michigan statute, and similar laws in other states, permitted spouses or daughters of male bar owners to serve as bartenders. This arguably made Goesaert at least a closer case, since the exception diluted the charge of sex discrimination. Nepotism in employment allowed some women to work in jobs otherwise reserved for men, and the practice has long had a fraught relationship with the promotion of gender equity in employment.
The other factor is the practical effect of Goesaert. By the mid-1970s, the Supreme Court was expressly repudiating the doctrinal analysis of that decision. But well before that, other legal and societal developments had undermined the holding of Goesaert and allowed women to serve as bartenders. This development came about prior to the rise of Goesaert to anti-canonical status through, among other things, the passage of Title VII of the 1964 Civil Rights Act, and state court cases relying on state antidiscrimination laws.
Thus, the legacy of Goesaert is a richer and more complicated one, and sheds light on a decision that demands greater attention than a rote citation to a now discarded precedent.
* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law.
** B.A., Statistics, University of Missouri (2021); J.D., University of Cincinnati College of Law (2025). Law Offices of the Public Defenders, Sante Fe, New Mexico. Member, New Mexico bar.
The second of the listed authors has worked as a bartender and a server. We thank Jill Hasday, Anne Lofaso and Magdalene Zier for very helpful comments on a prior draft.
©Copyright 2026 by Michael E. Solimine and Michelle Brodersen.