First it was the ban on cigarettes, then on trans fat. Now, it’s the ban on dance. Yes, it’s true: On February 22, 2007, the New York State Supreme Court upheld an 80-year-old cabaret law prohibiting dancing by patrons in bars. Meanwhile, the horizontal tango sans clothing is still legal in the Big Apple’s swing clubs. And “swing,” in this context, does not refer to the music genre. Bless your soul if you think it does.

The New York State Supreme Court maintained that cabaret laws are on the books to protect “residential communities from potential noise and safety hazards caused by some cabarets.” It backed the lower court’s ruling in John Festa, et al. v. New York City of Consumer Affairs, et al that “recreational dancing is not a form of expression protected by the federal state constitutions.”

An anonymous source reported that Martha Graham, the mother of modern dance, rolled over in her grave on the same date.

The plaintiffs argued that it was their constitutional right to dance in any bar or restaurant of their choice at any time. Yet, the court disagreed, asserting that the city’s measures are rational and in line with governmental objectives to protect its residential communities from “potentially intrusive noise, congestion, and other hazards, and to protect local retail development.”

For Drew Decker, 33, protection of “local retail development” was the operative phrase.

“Cabaret law exists as a weapon for economic development. A law like this is on the books to give government the tools they need to enforce them; however, they only do it selectively. They can control or close the places they don’t approve of. Cabaret law is out of touch with time. It is rooted in racism – it is a way to enforce segregation in the early days of rock n’ roll. It boils down to who is going to make money on enforcing this law, and how much the local economy will reap in benefits,” Decker said.

Yet, proponents of the law maintain that it is a societal compromise.

“We welcome the court’s decision, which recognizes the city’s authority to protect its residents from excessive noise and other disruptions and to make appropriate choices in seeking to reconcile the competing needs and desires of its citizens,” said Norman Corenthal, senior counsel in the New York City Law Department’s Appeals Division.

But not all citizens feel they need such protection.

“The law seems silly. It’s very footloose-esque,” said Tod Nielsen, a 31-year-old East Village bar hopper, “People come to New York City for the nightlife. With other crimes, how do police make time to ‘crack down’ on dancing? If someone’s in the bathroom too long and I’m doing the pee dance, does that count?”

According to Shira Krance, press secretary for the Department of Consumer Affairs, it might. While she could not comment on what movement constitutes as dance, or who inspectors are, she said that “the penalties for violating cabaret licenses by incorporating clauses that prohibit cabarets from operating in residential neighborhoods.”

So, what will be the law’s modern day impact on other ethnic communities where dancing is part of cultural celebration? Specifically in the Arab-American community? Will sheesha [hookah] joints and belly dancing establishments “go underground”?

“People dance at some places even if they don’t have a cabaret license. We have live music and belly dancers here sometimes. People want to dance close to their tables. Are we going to tell them to stop? No. When you hear music, you want to dance,” said Samir El Mestassi, a server at Horus Café in the East Village.

The owner, Oujo Mohmoud asserted that the law does not affect his establishment. “We don’t have a problem [with the law] because of the way the restaurant is set up. There is no open space or room to dance. If people dance, the servers can’t do their work.”

He was sympathetic with safety concerns, hoping that the cabaret law should be re-written.

“It would be better to have cabaret law based on space. It would have a set number of dancers, or depend on the establishment’s capacity. For example, if there is no kitchen, but [there is] a bar and a large open space, people might go there just to dance, so they would need a cabaret license.”

Dancing is a major part of Arab nightlife, yet Mohmoud remained optimistic that no law had the power to hamper the Arab community.

“Arabs enjoy themselves no matter what,” Mohmoud said.