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Churches vs. saloons: how a new court ruling affects old adversaries

Churches and schools in several states soon may find it a lot tougher -- if not impossible -- to keep liquor establishments out of their neighborhoods. This could be the impact of a controversial federal district court ruling in Massachusetts striking down a state law empowering religious institutions and private schools to veto the granting of licenses to sell alcoholic beverages within 500 feet of their properties.

At issue was whether the state -- or any other level of government -- can delegate its discretionary authority to private entities, such as churches or schools. And the fact that such power has been given to churces also raised the question as to a possible violation of the constitutional provision for separation of church and state.

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The mid-August verdict by Judge Joseph L. Tauro has caused considerable confusion in Massachusetts liquor-control circles, since it clashes with a less than year-old unanimous decision by the state Supreme Court upholding the law.

For this reason, an appeal of the latest ruling to a three- judge federal tribunal is expected. Lawyers for both sides indicate the case may go to the US Supreme Court for what could be a landmark ruling possibly affecting other types of government-conveyed authority to private groups.

While it is uncertain how the validity of many other state or municipal laws might directly or indirectly hinge on the final resolution of this litigation, a Michigan statute similar to the one in Massachusetts was upheld in 1975 by that state's appeals court. A Pennsylvania appeals court in 1977 also upheld a state law empowering local liquor licensing boards to turn down license applications on the basis of proximity to churches or schools.

However, foes of the Michigan statute are expected to initiate federal court litigation in an effort to strike down their state's discretionary veto measure.

And in Maine, a restaurateur whose establishment is across the street from a church parking lot is expected to file litigation similar to that in the Massachusetts case.

Under Maine law, religious institutions do not have a veto, as such, but a prospective liquor licensee must get a neighboring church's advance written approval to go forward with his application. In the case in question, a Camden Episcopal church has refused to go along with allowing liquor sales at the nearby restaurant.

Most other states that restrict liquor establishments within a certain distance of a church or private school do so as an outright ban, and the constitutionality of such bans has not been challenged. Nor are challenges considered likely, since the decisionmaking remains vested in public authorities.

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Massachusetts used to have a "no liquor whatsoever near churches" law, but switched in 1968 to a more flexible measure under which -- with the specific permission of church officials -- liquor-selling establishments could operate in their neighborhoods. Two years later, the statute was altered to pave the way for the current process, under which officials of a school or religious institution need not respond to a license application except when they might wish to exercise a veto.

In his 35-page opinion, Judge Tauro noted it would be possible for an institution with such a privilege to exercise it for economic advantage, and "it is no answer to suggest that Massachusetts churches would not abuse the power so granted them. . . . The critical fact," the judge wrote, is that the disputed section of law "provides the potential for such abuse."

The case involves a Cambridge restaurant that for nearly a decade has been unsuccessfully seeking a liquor license but has been turned down because of the objection of a nearby Roman Catholic church.

Attorneys for the restaurant, including Harvard University law Prof. Laurence Tribe, argued that the church had not objected to several other liquor licenses in the area and that there now are 26 nearby establishments where alcoholic beverages are sold.

In citing what he found to be inconsistencies in the application of the law, Judge Tauro said said the Massachusetts Legislature may not convey to churches "uncontrolled and standardless veto power to determine what licenses will be barred."

Professor Tribe, in hailing the Tauro decision, holds it is not a setback for churches but "in the long run it could benefit churches by separating them from involvement with the state."

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