Grendel's Den, Inc. v. Herbert N. Goodwin, Cambridge License Commission, Grendel's Den, Inc. v. Herbert N. Goodwin

DEN, INC., Plaintiff, GRENDEL’S

Appellee, al.,

Herbert N. GOODWIN et

Defendants, Appellees.

Cambridge al., License Commission et

Defendants, Appellants. DEN, INC., Plaintiff,

GRENDEL’S

Appellee, al,

Herbert N. et GOODWIN

Defendants, Appellants.

Nos. 80-1654. Appeals,

United States Court

First Circuit.

Argued Nov. 1980. April

Decided 13, 1977, May Scorpio’s, Inc.,

On a holder License, All ap- of an Alcoholic Restaurant plied defendant-appellant Cambridge to (CLC) approval License Commission for pursuant its transfer license to GrendeTs arrangement purchase a with the latter. law, of conformity with state notice application published a transfer in local newspaper prop- and abutting mailed all schools, erty hospitals, all owners and to and a churches within 500 foot of radius GrendeTs, including Holy Cross Church. 25, 1977, Mass.G.L. May c. 15A. On § Holy objection Cross notified the of its CLC to the license transfer.1 Caruso, Gen., Atty. Gerald J. Asst. and provides, part: Mass.G.L. c. § Boston, Mass., Birge Albright, with whom “Premises, except those an of innholder Gen., Bellotti, Atty. Francis X. and Thomas except and such parts buildings as are Miller, Gen., Boston, Mass., Atty. Asst. were located ten more floors above street brief, defendants, on appellants. for level, located a within radius of five hun- Tribe, Mass., H. Cambridge, Laurence dred feet aof church or school shall not Rosenberg, with whom Cambridge, David for be licensed the sale of alcoholic bever- Mass., Karasick, and Ira New City, York ages governing body if the of such church brief, plaintiff, appellee. were on objection or school files written there- to....”2 COFFIN, Before Judge, Chief CAMP May appli- On the CLC denied the BELL, Judge, HOFFMAN,* Circuit cation the transfer to GrendeTs of Scor- Judge. Senior District pio’s license, citing Holy objection. Cross’s GrendeTs CAMPBELL, Scorpio’s appealed the CLC’s Judge. LEVIN H. Circuit decision to the Massachusetts Alcoholic Grendel’s Den a is restaurant which Beverages (MABCC), Control Commission Den, plaintiff-appellee GrendeTs Inc. has on September following which operated Square, since 1971 in Harvard hearing, sustained the action the CLC. Cambridge, Massachusetts. GrendeTs and objection MABCC noted that “the church’s Holy Cross Armenian Catholic Parish was the on Section 16C basis occupy buildings Church are about ten which the transfer was denied.” apart. prem- feet Located back back line, ises share a common rear property November On GrendeTs institut- buildings both busy are near a ed against motor and this action in the district court pedestrian MABCC, intersection. CLC and their individual mem- * Virginia, sitting kindly asking Of the Eastern “We District the Commission to designation. reject Holy the above License. Cross Church myself Holy Council and Cross —Pastor personally 1. to the transfer of was in the form Church any letter — Den, Pastor, read, by Holy written Inc.” Cross’s which part: defined, 16C, “Church” is “a Holy “The Council of Cross Church and synagogue building church dedicated di- unanimously parishioners rejected in the regular pur- worship vine and in use for that past again present, in the the idea of pose, chapel occupying por- a minor having many liquor so licenses so near to our building primarily tion of a other devoted to Church. ” disputed Holy . uses... Cross dirt, already noise, plenty “We meaning “church” within the the section. Den, abuse from Grendel’s Inc.

bers, version, its enacted in 1954. The alleging that section 16C “on face inserted Mass.St.1954, 569, 1, applied” categori- and as was unconstitutional and c. was a § (other premises cal ban on the Shortly violated the Act. there- Sherman innholder) after, than those of an located within parties suspend agreed further 500 feet of a church or school. A 1968 proceedings pending in the case decision permitted premises amendment licensed Supreme the Massachusetts Judicial governing within the 500 foot radius “if the Beverages Court in Arno v. Alcoholic Con- body of in Commission, such church or school assents trol 377 Mass. 384 N.E.2d Mass.St.1970, writing.” Finally, c. § (1979), 1223 upheld which section 16C present language, prohibit- substituted the against state and federal constitutional ing licensing “if within the 500 foot zone attack. After the Arno decision was governing body of such church or school rendered, each party moved for sum- files written thereto....” See mary judgment on the issues of the stat- Mass, Arno, supra, 377 at 384 N.E.2d ute’s facial constitutionality and the ap- at 1226-27. plicability exemption” of the “state action liability.3 August to Sherman Act -16C, On evaluating section district 1980, the district court held that section 16C proceeded premise court from the process violated the due clause of the four- first plainly version of the law was valid: teenth state, amendment and the establishment acting “It is well established that a (as clause of the first applied power granted by Twenty- under the Amendment, the states through fourteenth amend- may constitutionally first ban ment); September liquor specified on the sale of court within radius of a church.” judgment plaintiff F.Supp. entered in favor 495 at 763. The on court nevertheless current these constitutional believed claims. The district version guaran- of section 16C contravened court also denied defendants’ motion dis- process by effectuating tees of due im- an miss grounds the Sherman Act claim on proper delegation legislative power immunity; state action the denial of the private holding, entities. In so the district motion is appeal pursuant before us on Supreme court relied on three cases Court 1292(b). 28 U.S.C. § dealing delegation with the authority.4 I.

Section 16C in its current form is essen- Richmond, In Eubank v. 33 tially the third version of a (1912), 57 L.Ed. S.Ct. the Court parties proceedings right right 3. The have notified us that tal” or “natural” as the —such claims, applied” on Grendel’s “as living, engage profes constitutional earn sion, chosen one’s as well as the merits of Grendel’s Sherman Act engage generally or even to in activities challenge, postponed.” “were reserved and equal available to citizens on terms with oth ap- is not clear in what manner Grendel’s “as might protected ers—that be characterized as a plied" constitutionally claims differ from the “liberty” interest. See v. Wisconsin Constanti arguments appeal. based made before us in this neau, 27 L.Ed.2d 515 longer To the extent these claims are no viable (1971); Examiners, Schware v. Board of Bar light opinion, expect of this we would them 1 L.Ed.2d 796 summarily to be dismissed. Rudman, (1st Medina 545 F.2d 1976), denied, Cir. 266, cert. operation 4. Grendel’s that the of sec- contends (1977); Raper Lucey, deprived “liberty, proper- tion 16C has it of (1st 1973). 488 F.2d 748 “due Cir. ty, process without due of law.” U.S.Const. however, process” argument, replete XIV, amend. 1. We observe at the § outset implications that mecha the Commonwealth’s how, that all, precisely it is no means clear if at granting liquor nism for trariness, licenses involves arbi process the due clause serves to constrain a discrimination, corruption. procedure granting state’s limited numbers that, point, govern Since we assume at some privileges highly regulated to conduct a en- grant ment arbitrariness or misconduct in the terprise. Surely Grendel’s has no “entitle- liquor licenses constitute a due liquor impli- ment” ato license such as would violation, process proceed to Gren we examine interest; property applica- cate a nor does an process del’s due claim. tion for a license involve a “fundamen- city empow- invalidated a ordinance residence sections absolute. He who is property ered of two-thirds of the owners injured by operation law establish, abutting any on street to within a deprived by ordinance cannot be said to be specified set-back range, building line right of either or of constitutional it. imposed persons that street. Fines were property.” buildings that did re- constructing new Id., at S.Ct. at spect line thus the set-back established. cases, last Washington of the three question “the Court considered ex rel. Seattle Roberge, Title Trust Co. v. case” to be whether the ordinance was “a 73 L.Ed. 210 power.” Id., police valid exercise (1928), comprehensive zoning concerned a at 76. It be- concluded per ordinance which among included cause private property owners were uses in mitted a certain residential district property to control the use of others, by giving philanthropic owned thus rise “a home for children or for to a zon- ing plan little consistency from people block old ... when the consent written block, the not a ordinance was reasonable shall have been obtained the owners police power sup- exercise of as such would property two-thirds of the within four hun port restrictions on land use: proposed building.” dred feet of the Reit only

“One set of owners determine not erating zoning interfering that restrictions the extent use the use but kind of general “with the of the land owner rights which another set of may owners make by restricting use the character of his ... property. their way public what is the imposed [they cannot be if not bear a do] safety, by convenience or welfare served health, public substantial relation the conferring power?” such morals, welfare,” id., safety, at general Id., at 33 S.Ct. at 77. 49 S.Ct. at the Court held the powers: city’s police ordinance exceeded the later, however,

Five years in Thomas Cu sack Chicago, Co. v. 37 S.Ct. by “The facts the make it disclosed record (1917), 61 L.Ed. 472 upheld the Court clear the exclusion of the new home city prohibited the construc ordinance indispensable the from first district is not tion of in billboards residential areas with general zoning plan. to the there And out the consent of the of majority owners pro- the determination that frontage property on the block in which posed building use be incon- and the was to billboard be erected. The ordi health, public safety, sistent with morals nance police was within the city’s power general The enactment itself welfare. because regulation of billboards had been implies grant plainly contrary. the shown to “in safety, be the interest use, and permission building for such morality, decency health and of the commu although purporting subject to be to such Id., nity.” at at S.Ct. 191. The consents, legislative body shows that the Court “palpably labelled frivolous” the found that mainte- construction and validity claim that the ordinance’s was im harmony nance of the new home inwas paired by provision permitting modifi public with the with the interest and cation of prohibition upon the billboard zoning general scope plan of the ordi- and private property consent owners: nance.” plaintiff “The in injured, error cannot Id., at at 51.5 S.Ct. obviously by be benefited provision, prohibition primary expressed by A for without it the concern the erection of such billboards in such Court in the above cases was the relation of Roberge zoning required prior approval by ordinance in in None of these uses allowed question, single family nearby “philanthropic the district home besides landowners. The centered, dwellings, aged poor,” dispute various institutional uses such on which the schools, fraternity, sorority attractive, story boarding and hous- two and a half fire- “an es, building. enough proof large and a for 30 clubhouse or memorial house to be a home (1939). Clearly 84 L.Ed. 128 proper- ordinances to matters

the contested municipal regula- ly subject emphatically of state or than can be said even more “police power.” Only in tion under was said of the restrictions on billboards Cusack, facts were sufficient where the liquor licens- Cusack that the restrictions the billboards warrant the conclusion properly here are within the involved endanger the safe- “would or were liable Likewise, if, as regulatory power. state’s ty decency” neighbor- of residential Roberge suggests, analysis the Court’s hoods, Roberge, 278 at at important are to be drawn be- distinctions found; in that was such a relation situa- or, nuisances potential tween uses that are tion, the consent of those who other- least, community annoyances to questionable wise be harmed use not, Village those see also of Belle lawfully required. In the instant could Boraas, 1, 7, Terre v. case, of the state under twen- (1974), present case 39 L.Ed.2d 797 ty-first regulate dispen- than to Eu- analogous to Cusack rather sation of unquestioned is both Roberge.6 bank or LaRue, broad. See California principle gleaned A to be general Eubank, Reeves, Cusack, Roberge Ziffrin v. is that from persons.” Roberge 278 U.S. at at 50. This Court seemed at least as concerned structure, said, mostly philanthropic the Court would be hid- had with the fact that homes shrubs, den trees and would cover four inconsist- been shown to be either offensive or tract, percent of the permitted and would be at least 110 with the uses in the district as it ent foregoing building. feet from the nearest private parties was with the fact that had some factors were that, decisions, relevant to the Court’s conclusion participation making zoning in Cusack, supra, unlike the billboards in 242 question philan- seemed to call into whether 526, 190, pro- U.S. 37 61 472 the S.Ct. L.Ed. prohibited thropic in such a homes could posed new home would not be “a nuisance” or Indeed, supra. district at all. See note ten any injury, annoyance “work inconvenience or decided, years Roberge after was the Court community, any person.” to the the district or distinguished prohibi- it as a “case .. . where a Village 278 U.S. at 49 S.Ct. at 52. See also legitimate tion of use of an inoffensive Boraas, 1, 7, of Belle Terre v. 416 U.S. 94 S.Ct. property imposed by legislature not the [was] 1536, 1540, (1974). 39 L.Ed.2d 797 The Court .,” by property (emphasis other owners .. even included what be construed as an Wallace, added), U.S. 59 Currin 306 expression of its doubt that the exclusion of 379, 386-87, (1939) (uphold- 83 L.Ed. 441 philanthropic homes, “by a use not reason of ing provision making regulation federal of offensive,” [its] nature . .. liable to be only applicable tobacco auctions in markets at 49 S.Ct. at would be valid even growers regula- where two-thirds of favored delegation power: absent a case, tion). In another the Court described whether, consistently “We need not decide concerning Roberge Eubank instances as Amendment, with the Fourteenth it is within “property where the affected had been ac- power by municipality the of the State or quired any preexisting without restriction general zoning proposed law to exclude the respect disposition” im- of its use or and “the new home from a district as is the defined position of the restriction in invitum was au- district the under consider- ordinance complete thorized after and unrestricted own- ation.” ership persons had vested in the affected.” Old Id., at 49 at 52. Distributing Seagram-Distillers Dearborn v.Co. may significant 139, 144, It that Eubank and Ro- Corp., 299 U.S. 57 S.Ct. 81 berge involving zoning were cases (1936). ordinances L.Ed. 109 during period and decided when line “[t]he thjs question In case there is no the regulatory zoning] sepa- which in field [the] [of subject mat- contested deals with legitimate illegitimate from the as- rate[d] sumption public is at the distribution of ter — heart of the —that power capable precise not [was] regulatory and con- state’s Village delimitation.” of Euclid v. Ambler Re- presumptively “legitimate” cerns a use not Co., alty U.S. 71 L.Ed. similarly expecta- “inoffensive.” There is fact, (1926). In at the Eubank time private property may tion that without owners significant question decided there was a wheth- properties restriction convert erns; their into tav- municipality any power er a had to establish e., expectation opposite, quite the i. building Fox, set-back lines. Gorieb v. liquor until one that one is not entitled to sell 603, 609-10, 675, 677-78, 47 S.Ct. 71 L.Ed. obtains a state license to do so. (1927). Likewise, noted, already may legislative abrogate bodies their the statute” so that the legislation was now responsibility impose poli- to formulate and question “neutral” of whether cy regarding zoning matters such as the vicinity establishments governmental privileges, issuance of del- by churches and schools. Due to this “substan- egating responsibility private parties change tive in legislative policy,” decision- by any pre- “uncontrolled standard or rule making in the field had “effectively been ” legislative scribed by action.... Ro- delegated ... private entities.” berge, supra, 278 at S.Ct. at 52. We change find this assessment of the When, however, legislative body has de- effected the 1970 amendment to be un- cided, in valid powers, exercise its that it convincing. suggest is far-fetched to is necessary to restrict a use manifestly previ- has that Massachusetts abandoned its subject regulation, problem of an providing ous concern with churches and abdication of less- responsibility protection schools some from liquor-serving ens and it be appropriate then con- We establishments. think the underlying imposition dition the of such restrictions policy legislature of the Massachusetts after upon lack of potentially consent of- the 1970 amendment remains much the fending parties use regula- that the it legislature same as was before —the con- Cusack, protect. tion seeks to 242 U.S. at doubt, did, always tinues to itas the com- 192; see also Eastlake v. patibility operat- of licensed establishments Inc., Forest City Enterprises, school, within 500 feet a church or n.12, n.12, 677-78 96 S.Ct. but now deems reasonable that L.Ed.2d 132 New Motor Vehicle which, all, church or after is in the school— Co., Board v. Orrin W. Fox position best to know how establish- (1978). operations ment will affect its court, —confirm Unlike the district we do not construe provid- that it protection will waive the the above cases to mandate that this miti- Arno, supra, Supreme ed. Judicial gating consent be ascertained in one Court examined three versions sec- particular form —that pro- modification of a tion 16C and concluded: upon hibition an expression affirmative valid, “consent” is whereas of modification history “The of the statute demon- prohibition the same upon objec- a “lack of a progressive strates relaxation of licens- impermissible. tion” is constitutionally against backdrop of a limitations a Such a distinction would be both artificial legislative option prohibition. total of Rather, illogical. the determinative seeking part While to facilitate question is whether the “consent” or “lack granting licenses, the Legislature of objection” of of private parties goes only preserve, appropriate, chose also to where toward the modification of that restrictions power objective its legitimate police have already validly been by repre- framed providing protection. a zone of sentative bodies and that reflect a clear expression governmental policy. The current does not invest the The district court concluded that the 1968 new, expanded power church a to 16C, amendment to permitting li- legislate a prohibition. merely shifts censing upon the consent of churches and to objecting, the church the burden of prescribed area, schools in the was valid retaining legislative while the essential incorporated because it simply legislative a granted that license be with- mandate

policy subject to waiver. The court found protected area in the of a face however, defective, the current version be- nonconsenting church.” “actually cause it private persons licenses Mass, impose policy public.” F.Supp. 384 N.E.2d at 1227-28. at 764 (emphasis original). We see The 1970 no reason to disagree per- with this section 16C said have fectly analy- reasonable common-sense “actually underlying policy reversed the sis. gen closely regulation has formulated a calibrate its to the

Massachusetts prohibition intoxicating eral on the sale of protected needs individualized institu- tions, within 500 feet of a church or school. by permitting each institution to constitutionally It has also exercised the pending appli- make assessments of license permissible option conditioning pro may cations —assessments take into hibition on the lack of consent of churches perceived account such factors as the offen- the prescribed and schools within area. Fi public liquor siveness institution of nally, adopted procedural expedi it has consumption the threat- vicinity in its schools, ent of requiring upon churches and ening prospective nature of a licensee. pending application, notice of a to Thus, adopted has while Massachusetts express their lack of consent rather than legislative policy prefers the interests placing applicants the burden on license liquor- of schools and churches over those procure the affirmative consent of these establishments, serving it has also made a institutions.7 Such scheme is applicants by permit- concession to license repugnant process to the due clause. ting licensing when the churches affected sure,

To be such a regulation scheme of they and schools conclude that will not be has potential for producing results injured thereby. shocking It is not that the objective viewed as a whole under an stan- has, Holy Cross past, Church in the found dard, may not entirely seem consistent. unobjectionable of 14 estab- might any system same be said of lishments within the 500-foot radius. Earli- provides for individual variances from a set managers may er of the church had general complains restrictions. Grendel’s optimistic more operation view of the there are presently 26 licensed estab- growing such establishments. The numbers lishments within a 500-foot radius of the places may of such causing seen as Holy Cross Church and that the Church has problem. Located in the midst of a con- failed to to issuance of at least 14 of area, gested may business Church addition, these licenses. Grendel’s com- unconcerned about more remote licensed es- plaint “despite states that the fact that the although disturbing tablishments it finds Grendel’s Den entrance is closer to the en- prospect premises of licensed ten feet trance University Lutheran Church away; important the Church also find entrance, than to [Holy Parish Cross] the nature of the establishment seeking a the University Lutheran Church has never license or the pro- conscientiousness of the interposed an plaintiff’s acquir- Likewise, spective license holder. it is not ing a license.” surprising closely that of two churches situ-

This situation reflects little more than ated one find issuance of a license the fact not; attempted Massachusetts has disturbing while the other does a vir- 138, requires objection, appli- protect § Mass.G.L. c. 15A each to issue if there is no is to provide cant to potential against churches with notice of the licensees churches pending and, application that, license since to schools either for their lack of interest of necessity objection perhaps unwieldy governing “indicate the of a written to boards or because prevent the taking issuance and transfer of such some members of concern over a provisions stance, “pro-liquor” license might simply neglect under the of section 16C.” to Thus, though having both before and after the 1970 amend- furnish their consent even no applicants sought objection. ments to c. license who real Thus a church 450 feet distant operate to within 500 feet of a church were from an establishment from which it no feared required approach consequences might to the church for its “con- adverse withhold formal sent,” being though register the difference that after 1970 consent even it never church, having the pending any objection. irony notified of the been It seems the ultimate application necessity legislative designed license the and of of an that a to amendment “fine objection prevent issuing, to the license from tune" the statute render it more workable presumed to “consent” if it tenders no re- for all interests should the basis for become sponse. legis- arguing legislature longer The most obvious reason for the has a replace requirement lature general policy to all coherent that licensed establish- give likely incompatible churches or schools within 500 feet their ments are with schools and provision permitting “consent” with a licenses churches. tue it to commonly of section 16C is that accommodates dissimilar schemes used See, differing congre- of different e. concerns zoning. the fields of gations. g., Paul, O’Brien v. St 285 Minn. Advertising (1969); Robwood N.W.2d 462 state position is that Nashua, Associates v. 102 N.H. take into account the individualized con- (1959) A.2d and cases cited therein. cerns of churches and it schools does violate due process clause. place must the final decision whether to grant a the discretion

government particular agency. If II. needs protected truly institutions determinative, however, to be we fail to see A legislative enactment does not how this layer bureaucracy additional contravene the establishment clause of the process” would enhance either or the “due (1) first legis if it has a secular parties interests of the involved. For ex- (2) purpose; principal primary lative its ample, give adequate to to weight Holy effect neither advances nor inhibits reli “having many Cross’s concern with so gion; (3) it does not foster an excessive so Church,” licenses near to our the CLC government entanglement religion. would have had to have full effect to Committee for Public Education and Reli objection, the Church’s at absent least gious Liberty Regan, v. showing that the was made in bad (1980); Committee 63 L.Ed.2d 94 faith or for some invidious reason —a show- for Public v. Nyquist, Education ing which has not been made in this case. 93 S.Ct. Had the inquire CLC undertaken to wheth- Kurtzman, Lemon er a “reasonable church” would find Gren- (1971). The district liquor objectionable, del’s service of court found that section 16C served “the legislature’s would have undermined the in- protect valid secular purpose of tent that each institution’s assessment of cultural, spiritual, and educational cen disturbing what be taken into account. ‘hurly-burly’ ters from the associated with Had the CLC chosen hold against to liquor outlets” and noted “Grendel’s Church the per- fact the Church had concedes that such a purpose satisfies the mitted licenses to issue others in the part F.Supp. of the test.” 495 at 766- area, it would be in encouraging effect in- agree 67. We that section 16C serves this stitutions in bad faith in order to purpose, secular and would add aside preserve right good later make a insulating from churches and schools from objection. faith Had the CLC found the disruption may whatever noise and accom premises existence the 26 other licensed establishments, pany liquor-serving dispositive, section it would have overlooked public liquor serves shield the fact that 16C from con provides vari- sumption ances general prohibition; from a those institutions with which such system, such might incompatible existence of use be deemed most “noncon- uses” forming cannot be said vitiate or whose members most offended Mass, force of the overall Arno, Finally, restriction. supra, the use. See had reality the CLC been in give bound to 1226; Village cf. 384 N.E.2d at of Belle effect objection, although Church’s Boraas, Terre cloaked with authority indepen- to make an 1541, 39 (1974) (“The L.Ed.2d 797 police pow decision, dent we do not think this would er is not filth, confined to elimination of have aspects “sanitized” those of the licens- stench, and unhealthy places. ample It is ing scheme said run afoul of the due lay values, out family youth zones where val process clause. ues, and blessings quiet of seclusion and

We conclude that air sanctuary section 16C is reason- clean make the area a Parker, regulation 26, able means of in an Berman v. people.”); area where 348 U.S. states 98, have wide to regulate, (1954) (“The latitude and 99 27 75 S.Ct. L.Ed.2d

96

concept public mosphere peace tranquility welfare is broad and of and in the of represents churches, The values it are inclusive.... much vicinity Sunday as the physical, as well as aesthetic as spiritual upheld Mary “Blue Laws” McGowan v. monetary.”) well as land, 81 6 366 U.S. S.Ct. (1961), helped tranquil 393 create a atmo contends, however, that section Moreover, sphere worship. conducive to principal advancing has effect of those sects find the service religion government and fosters excessive repugnant religious to their beliefs will no entanglement religion. with We think the worship have their enjoyment doubt questions primary an improper effect heightened by the knowledge and that there entanglement excessive must be ana- lyzed in parts: liquor-serving two establishments in their However, backyard. own even if these ef (1) constitutionally imper- Whether it is “direct,” fects are seen to be and “primary” missible under the establishment clause for rather than of the by-products incidental provide a state protection” a “zone of scheme, licensing they Massachusetts do not liquor licensing from within vicinity go surroundings further provide than to churches and schools. accommodating to free of reli exercise not, (2) If protec- whether such a zone of aid, gion. Churches are not economic tion becomes invalid when individual government nor are facilities used for reli “delegated” churches schools are gious purposes. preferred No sect is over object decision to or not another, persons nor are to attend coerced within designated zone. church. sponsorship There is no state Turning part of this religion. placed in the merely Churches are analysis, we conclude while a liquor- category types of schools and similar free zone around churches and schools un institutions, whose activities cannot so read questionably provides a “benefit” to reli ily noisy potentially coexist with and trou institutions, gious others, among it does not neighbors. Supreme blesome Court has “primary advancing effect of reli never held that the state must refrain from gion” phrase as that has been used in Su actions all that foster an environment fa preme precedent. See, g., Court e. Commit Clauson, worship. vorable to Zorach v. Cf. tee for Nyquist, Public Education v. 413 306, 313-14, U.S. ,S.Ct. L.Ed.2d 948 (1952) (“We religious 96 L.Ed. 954 are a (1973) (tuition parents reimbursement people presuppose whose institutions a Su children attending parochial school); Lem preme Being. .. . When the state encour Kurtzman, on v. ages religious cooperates instruction or (1971) L.Ed.2d 745 (subsidy parochial religious by adjusting authorities the sched school salaries). teachers’ Compare Walz v. public ule of events to sectarian needs it Commission, Tax traditions.”) follows the best of our While (1970) (upholding ex religion favor, special can make no claim to emption of church property activity may request special its needs be taxation); Clauson, from Zorach v. ways accommodated in similar to those of (1952) (vali 96 L.Ed. 954 other cherished institutions. dating arrangement whereby students re proper balance to be struck in crowd- leased from public school to attend places ed urban instruction). Richardson, areas between of conviviali- See also Tilton v. entertainment, ty places like (1971) (“The prefer L.Ed.2d 790 churches and schools which a differ- question crucial environment, not whether left to some ent would seem best benefit accrues to a reli gious legislature, institution the interests consequence as a which reflects legislative program legisla- princi community. but whether its of the whole Here the pal or primary religion.”) sought effect advances ture has to accommodate churches The ban on licensing may enhance the at- and schools in a certain manner. Recent with legislative changes, liquor operations to the fere of valued favorable institu- owners, both LaRue, license indicate that sides con- tions. Cf. California to have input proc- tinue 109, 119-20, 390, 397-98, in this, In a case ess. such as where the (1972) (Stewart, J., concurring; sugges- primary evils to which the establishment twenty-first that tion enables stake, not at clause addressed are it “liquor to provide states that shall not be replace gain seems to us no this demo- church”). .. . feet sold within 200 of a process, in cratic which the diverse voices of spectre dissent raises further heard, society by our are the fiat of a might that definition of “church” be judges. may portend handful of It indeed “Buddhism, so read as not to include Confu- loss do so if pri- courts constitutionalize cianism, or transcendentalism.” The dis- vately held values so as override the further sent contends that “whether a mos- social consensus. marabout, tope que, pagoda, quali- argues liquor-free that fy open question.” section is an [under 16C] presents problems zone constitutional if its believe, however, There is no reason to that protection only extends to churches and the Massachusetts courts would not effect (of percentage paro schools which some are what seems to us the clear intent of the schools). institutions, chial These “a sub legislature by applying protections of proportion stantial are in which building any primarily section 16C to used nature,” are said to “a nar constitute place assembly as bona fide reli- category” row of the institutions social group. It familiar canon gious is a might benefit licensing from a ban. We preserve as to statutes be construed so their think, however, that leg the Massachusetts extent of the constitutionality. The class of could rationally islature decide that schools “religious institutions” and the like is a and churches were in institutions need of possible problem many definitional under protection.8 special repeating It bears with the first statutes found consonant under states broad latitude the twen amendment, and has not been seen in the ty-first amendment to control the manner See, grounds invalidation. abstract as liquor in which dispensed. does not Commission, g., supra, e. Walz v. Tax violate establishment for a clause state 1413; choose, at Zorach v. power, to re exercising this n.l, Clauson, supra, frain from at 308 granting licensing privileges in where, areas judgment legisla problem of the at 681 n.l. No of definition arises ture, such privileges seriously might inter- as a Holy Cross’s status case— single municipalities 8. Grendel’s seems to out libraries and the same that make initial licens- hospitals might decisions, may as institutions that benefit from and thus be better situated protection. (License applicants licensing po- section 16C’s off than churches to ward currently 15A, required, tentially under establishments. troublesome Like- notify hospitals prospec- wise, hospitals, politically powerful within 500 feet of the often insti- pending communities, licensed tive establishment might both tutions within their be application necessity and of “the thought of a able to wield sufficient influence objection prevent written the issuance or local so boards as render their ” objec- transfer of such license.... While the protected by pending appli- interests notice of hospital given of a tion is not conclusive effect cations under section 15A. One rational- 16C, under section as are those of churches and ly simply service decide schools, hospitals we take the inclusion of operations compatible less with the churches within the notice to be some indica- hospitals those of and schools than with and' hospital’s that a tion is to libraries; lines must be drawn somewhere. especially by licensing serious consideration function, point legislature’s is that it is the authorities.) There are numerous conceivable ours, long So to make such distinctions. distinctions that could drawn between the “benefits” conferred on churches are not churches and one schools on the hand and primary advancing such as to have a effect of hospitals and libraries on the other. Libraries religion, does not matter churches are keep often limited hours that not coincide among of beneficiaries” a “narrow class establishments; liquor-serving with those of moreover, section 16C. commonly libraries are controlled conceded, “section “church” is and neither Grendel’s 16C forces each affected church to nor the court the district has advanced public a a position regard take with- to proposition worries the that which dissent governmental policy.” matter We find reli- statute is invalid as some favoring that Commonwealth has established circumstances, gions In over others. such “governmental policy” regard with to inappropriate we think postulate to licensing; a simply church stands in the hypothetical exclusion from section 16C of position private entity of a entitled to claim “groups regularly meeting to situa- discuss a protection” provided or waive “zone of for dispositive tional a in ethics” as factor its benefit.9 decision. reject We also court’s district conclu- Once it that a ban is decided total on sion that section violates establish- liquor-serving establishments within the vi- ment clause because it confers on churches cinity of a church does not contravene the “opportunity economic to realize advan- clause, it is to establishment difficult under- tage power.” and exercise political that, essence, stand how a in al- by hypothesiz- court reached this conclusion lows a to “waive” protection church ing that “a 16C could law- church under § further, insurmountable, presents fully political exercise its to veto problems. already We have applications religious purely license rea- held right object that the church’s or not 10 and sons” could also “exercise its veto licensing within the prescribed power solely by for its economic benefit area improper is not an delegation “gov- decision, tying directly or indirectly, power.” accept ernmental Thus we cannot presence of a absence donation directly rhetoric that “section 16C applicant.” F.Supp. at 767. It was governmental power, invests a church in essence converting suggest each local “no answer most church into churches an arm agree of the state.” Nor do we power granted would not abuse the them taining liquor Churches are carte blanche to de- licenses within 500 feet of that neighbors be, they cide who their will are might just easily nor church.” It have been said given power licensing “veto” Cusack, an ex- supra, within predominantly that a Protes- cessively They broad radius such as five miles. neighborhood ap- tant prove have could decided to simply provided protection within a reason- the construction billboards highly regu- able area from a controversial and corporations. behalf Protestant-controlled protection dispensed lated that can be use— Religious something prac- discrimination is not unnecessary. note, moreover, with when We churches; uniquely by fact, ticed a charita- objection pending that a lack church’s ato ble observer even conclude at least application give applicant license does context, present likely church is in the a less license; an automatic entitlement to a the local private engage than other entities discrim- authority deny board retains the any event, difficulty con- ination. we Amo, the license for various reasons. su- See cluding opportunity that the mere to exclude Mass, pra, n.10, at 88 384 N.E.2d at particular owners denomination n.l0(1979). operating liquor-serving from establishments primary within limited radius has a effect of possibility 10. The that similar could decisions advancing religion. (The parties dispute be made for such invidious inheres in reasons applicant whether an could demonstrate any who private scheme under which entities are church had entered its protection provided entitled to waive a stat- discriminatory purposes would be able to ob- ute. This is a relevant in evalu- consideration ating clause, tain from the consideration and relief MABCC. process the scheme under the due suppose It seems reasonable to this or one that we have taken into Hav- account. decided, however, already open other avenue some of relief to a Massa- that the licensing procedure applicant chusetts who could make such a show- does not offend Since, process, however, ing. slight, due we do not we do not consider this think that the hypothetical possibility along of discrimination fact determinative to issue of the statute’s religious (as ethnic) constitutionality, presently well as racial and lines facial need not we independent suffices to create an inquire issue to what extent a discriminato- church’s the establishment clause. The court ry corrupt power” might district misuse “veto of its postulated example, that “to take an extreme give rise to state or federal remedies under solely Protestant could veto church exercise its law.) applicants to exclude ob- non-Protestant from 16C, however, under is 16C. The critical fact that 16C not give monetary § does § provides potential for such Id. churches, abuse.” material simply pro- aid to vides whatever and intangible aesthetic problems We ap- have serious with this benefits can be a protective derived from First, proach. think legislature we a state liquor-free zone. sug- It seems strained to is predicate entitled to regulation such as gest that the must provide policing state section 16C on the rational notion that right mechanism to ensure that to in good churches and schools will act faith protection is waive this not converted into objections, exercising when risking without cash, at least the absence evidence regulation invalidation of the of a because vague any that such abuse “potential frequen- occurs with unsubstantiated for Richardson, shown, abuse.” if cy.11 Cf. v. Even some such were Tilton U.S. abuse 403 91 difficulty S.Ct. 29 we concluding, L.Ed.2d 790 as the (1971) (“A possibility always did, exists . “public . . money” district court legitimate objectives any leg- law or thereby being religious used for purposes. program may islative by be subverted con- sum, In we find that section 16C not does design scious enforcement.”). lax “on its face” violate the establishment proposition that upon churches will seize clause, and on the basis of the record before the flexibility in the licens- Massachusetts no us establishment clause violation has ing scheme to extort donations from license been shown. applicants only but, is insulting not most people, would seem far-fetched as as well III. any evidentiary support. without More- finally question We come over, wholly such extortion is unrelated to plaintiff’s whether antitrust claim pre is either purpose behind section exemp cluded the so-called “state action “effect,” 16C or the section’s at least so far Brown, Parker 317 explicated tion” v. as that be gleaned effect can from the face 307, 341, (1942) 87 315 U.S. 63 S.Ct. L.Ed.

of the statute. subsequent agree cases. We We also inapposite find those re- cases exemption district court that the does not ferred to the district court which the apply, alleged both because section 16C’s Supreme Court “has insisted there “anticompetitive “clearly effects” are adequate ensuring purely controls secular affirmatively expressed articulated and purpose before public programs of aid policy,” state and because there insuffi private upheld.” schools are E.g., Commit- cient state involvement in supervising tee for Religious Public Education Lib- alleged “restraints of trade.” See Califor erty Regan, 100 S.Ct. Liquor nia Retail Dealers Association 63 (1980); 94 Pittenger, L.Ed.2d Meek v. Aluminum, Inc., Midcal 100 95 44 L.Ed.2d 217 (1980); 63 L.Ed.2d 233 see also (1975); Levitt v. for Edu- Committee Public New Motor Vehicle Board v. Orrin W. Fox cation, U.S. Co., 99 S.Ct. 58 L.Ed.2d U.S. (1973). cases, all these state (1978); Co., 428 Cantor v. Detroit Edison funds or services provided had been to reli- gious-affiliated parents schools or to of chil- Bar, Virginia Goldfarb v. State dren enrolled in such it schools. Since 44 L.Ed.2d government axiomatic that appro- (1975). holding, priate ends, grava In so we take the money a state complaint obviously great bears a men of antitrust burden to ensure right the funds it gives religious institutions 'that of a selective used purposes. for secular Section churches to use their enables course, Holy marketplace 11. Of since has Cross exercised its ed in the for direct economic bene- objection here, “power” and thus has decided not to fits” it is under sec- whatever protection, waive the there can be no conten- tion 16C. tion that the Church has in this instance “trad- doubt, at private persons press that a power” point, on behalf our state “veto competition,12 suppress facially conspiring to statute is invalid the Sher- interposed Holy Cross Church has merely man Act because creates some anticompetitive (and unused) its for such ends opportunity pri- limited has in this instance. There been show- parties anticompetitively.15 vate to act ing that intended section Massachusetts court is judgment district re- private effectuate such authorize and further versed and the case remanded for conspiracies,13 thus the state action doc- proceedings opin- with this not inconsistent trine, germane only said to be when “anti- ion. competitive compelled by conduct is di- acting of State as sovereign,” rection the COFFIN, Judge (dissenting). Chief Bar, Virginia Goldfarb v. State U.S. at upholds The court law that con- state does not bar the (and schools) fers an absolute upon churches claim.14 power proposed veto the sale of alcohol over said, having however, been This we con- Although appreciate within 500 feet. I the difficulty imagining fess some how section span step, this I baby minimal of believe 16C “on its face” the violates antitrust laws. managed has of to cross the threshold the following the description Grendel’s offers of Establishment Clause. section 16C: challenge, Because is a we this facial merely permits, “Section 16C but does not eye must read the statute with an sensitive require, any anti-competitive activity. problems presented by constitutional anti-competitive decision is solely very language. law’s I see several difficul- of governing the church body, First, and, presently ties. I think most reached in possible collusion with various important, delegation po- is of strange liquor licensees. That the decision be- governmental explic- litical on power or an comes effective virtue of Section 16C schools, itly religious Apart from basis. does not anti-competitive make the choice only entity liquor can veto a license is one attributable the state.” synagogue building “a church or dedicated so, why If one wonder the statute is worship regular to divine and in use this facially be declared invalid in suit purpose”. an This formula extraordinari- is against municipal agencies state and ly precise building definition. The must be officials. “synagogue” of “church” or dedicat-

The merits mosque, of Grendel’s antitrust claim ed to worship”. “divine Whether a marabout, are not before us appeal, on this and we pagoda, tope qualify do would However, not decide the issue. open question we do ex- an purposed for the use of again argue competition, beyond 12. scope Defendants the MABCC fects of power abuse, retains to correct this sort of see Sherman Act. See New Motor Vehicle Bd. v. 10, supra. Co., note W. Fox Orrin Corp. Exxon Indeed, 13. defendants themselves maintain that Maryland, Governor of not, any construction, “§ 16C does au- (1978). thorize a church or school enter into a con- spiracy agreement in restraint trade of with competition engaged Churches are private persons.” liquor-serving establishments and have no competi- suppressing institutional it, reason appellee 14. As we understand does not seek Thus, argue tion in trade. this is not a liquor-free zone, aof anticompetitive itself, situation where decisionmak- and of runs of afoul the Sherman Act. ing peculiarly likely. could be deemed Cf. New We think a claim such could not stand. As Co., above, adopted gen- noted Motor Vehicle Bd. v. Orrin W. Fox Massachusetts has (1978) policy against liquor-licensing eral ty in the vicini- 58 L.Ed.2d (existing empowered of churches and schools. This sort of state automobile franchisees “regulation designed displace “good require hearing . .. of unfettered on existence cause” to franchisees). prohibit entry business prospective freedom” in the distribution of alco- of is, beverages despite possible holic adverse ef- option building worship”. refraining “divine churches the from must be veto- Buddhism, Confucianism, applications. Whether or tran- Whether or not (of part true, scendentalism either oriental or New proposition of this England comfortably variety) can be cab- part Although does not follow. our second may under such a gives objectors ined label doubted. privi- law conscientious service, lege refusing military a law that may important well be as- There other allowed to determine institutions semblings race of the human whose activi- qualified objectors who as conscientious as “worship” could be but ties described surely be invalid. “divine”; object is not conversely, whose objective there be those whose is “di- Even if delegation to reli- vine” whose activities fall somewhat governmental gious dispense privi- bodies to (or of) “worship”. outside Yet in short lege permissible, were suffers their need for calm in their quiet, hours particular permitting defect abso- operation, (or political power in their lack lutely power. standardless exercise it), they may para- to the be identical Beverage Arno Alcoholic Control Com- digm synagogue. Christian church Jewish mission, 377 Mass. opinion distinguishes

The court’s between (1979) (scrutiny N.E.2d churches and the one hand schools on objection such questions church limited “to hospitals and the other. libraries on These objecting whether quali- institution comparisons. the difficult To me as a the purposes fies ‘church’ for problem clearly is seen more if we con- statute, within the statutorily whether it is sider, instance, groups regularly meet- feet, protected zone and whether of 500 ing to agnosticism discuss or situational duly written authorized ethics. appropriate ‘governing body’ of. church”). would not identifying I relish the task of institutions, ephemeral groups, possession of unbridled discretion is a gatherings that within and with would lie power give popularly we do not even to pale. fear, drawing, out line I Such denigration elected officials. bring one within the interdiction of religious organizations acknowledge preferring one another. religion over More being human beings, constituted of fallible importantly, even if all of reli gatherings their exercise of uncontrolled discretion giously oriented can humankind be harmo may high on than occasion be less minded niously put roof, section one 16C or, minded, high wrongly if directed. But would confer religious organizations deeply easily what than troubles me more governmental power to all others denied conjectured examples arbitrariness is the except governmental schools.* While as simple grants fact that an unre sistance to organized religion is effectuated licenses, deny liquor stricted through exemptions tax for institutions power that can be used to serve sectarian adherents, charitable their deductions for not to other purposes, churches but simi widely applicable such measures are also larly to charac organizations. situated So institutions, other and causes. organizations is, me, it. terize this case to decide I can think of no area we restrict the where than Laws not have more a “remote receipt of governmental privi benefit or the advancement and incidental” effect in lege solely group to a or institu religious religion. Educa Committee for Public tion. n.39, Nyquist, v. tion n.39, (1973). opinion proposition court’s posits believe invites impose that since a could I a statute municipality church, neighborhood political surrounding any free zone churches into clearly may impact discretionary by allowing soften the veto granting arena them * “pivotal Rhode Cf. Island of Teachers v. Nor to which sectarian is a Federation affected class is berg, (1st 1980) (extent constitutionality”). determining 630 F.2d Cir. factor ... commercially significant activi-

powers over based on their status must

ty than such an effect.

more DEN, INC., Plaintiff,

GRENDEL’S

Appellee, GOODWIN, al.,

Herbert N. et

Defendants, Appellees,

Cambridge Commission, al., License et

Defendants, Appellants. DEN, INC., Plaintiff,

GRENDEL’S

Appellee, GOODWIN, al.,

Herbert N. et

Defendants, Appellants.

Nos. 80-1654.

United States Appeals, Court of

First Circuit.

Reheard June 1981. July 28, Decided Gen., Caruso, Atty. Asst. Bos- Gerald J. ton, Mass., Bellotti, with whom Francis X. Probable 11, 1982. Jurisdiction Noted Jan. Gen., Miller, Atty. Atty. Asst. Thomas See 102 S.Ct. 996. Gen., Boston, Mass., brief, for were on

Goodwin, et al. Boston, Mass.,

Birge Albright, Sp. Coun- City Cambridge, for the with whom sel Higley, City B. and David B. Russell Sol. O’Connor, Counsel, Cambridge Law Legal Mass., Department, Cambridge, were on Commission, brief, Cambridge License et al. Tribe, Mass., Cambridge,

Laurence H. Rosenberg and Ira Kara- with whom David brief, sick, Mass., Cambridge, were appellee. COFFIN, Judge, CAMP

Before Chief BOWNES, Judges.* BELL and Circuit * Judge Breyer participate did not in the decision this case.

Case Details

Case Name: Grendel's Den, Inc. v. Herbert N. Goodwin, Cambridge License Commission, Grendel's Den, Inc. v. Herbert N. Goodwin

Court Name: Court of Appeals for the First Circuit

Date Published: Apr 7, 1981

Citation: 662 F.2d 88

Docket Number: 80-1653, 80-1654

Court Abbreviation: 1st Cir.