Grendel's Den, Inc. v. Herbert N. Goodwin, Cambridge License Commission, Grendel's Den, Inc. v. Herbert N. Goodwin
662 F.2d 102
1st Cir.
1981
Check Treatment

*1 commercially significant activi- powers over have 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 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 brief, Cambridge License et al. Tribe, Mass., Cambridge,

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

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

COFFIN, Judge. Chief We state the text of section 16C in the margin.1 appeal, being In this now en considered banc, state, we determine whether a con- In late appellee brought suit fed- clause, may

sistent with the establishment eral against district court the the CLC and provide premises shall not be licensed members of the and the CLC ABCC their for the of nearby sale if a church— official capacities. Appellee sought relief defined as “a church or synagogue building on four theories: that section 16C “on its worship” dedicated to divine school ob- —or face applied” and as equal pro- violated the jects. tection and process guarantees, due the es- Appellee is a restaurant located in the Amendment, tablishment of the clause First area, Square Harvard a well-known busi- and the Sherman Act.2 The appellants ness and entertainment center in Cam- moved both the court abstain and that bridge, Holy Massachusetts. The Cross Ar- it dismiss the complaint for failure to state menian adjacent Catholic Parish is located a claim. voluntary After a continuance of appellee. In appellee, pursuant the pending suit decision the Massachu- purchase a agreement, applied to the Cam- Supreme setts Judicial Court in Arno v. bridge (CLC) License Commission ap- Alcoholic Beverages Control proval anof alcoholic beverage license. 377 Mass. Square Harvard and within 384 N.E.2d 1223 a 500 feet of the case Holy Cross Church there are at ultimately least 26 that upheld against premises licensed liquor. to sell Nonethe- process due and establishment clause chal- Holy less objected Cross appellee’s appli- lenges, the district court appel- denied the cation. The CLC voted to deny applica- the lants’ motion to dismiss. The litigants then tion, citing only Holy objection Cross’s stipulated to facts and for summary moved noting that the church “is within 10 feet of judgment except on all counts “question the proposed the location.” of whether or not the church in fact exer- Appellee appealed this denial to the Mas- cised its under ... 16A in an § sachusetts Alcoholic Beverages Control arbitrary discriminatory or otherwise man- (ABCC). Commission After hearing, the added). (emphasis ner” upheld ABCC the CLC’s action The district court ruled that first grounds “on the that the governing board state’s powers Twenty-first under objected church ... under the Amendment, prohibits importa- which provisions Chapter 138, 16C, of Section of liquor tion into states in violation of their represents this an absolute veto. laws, displace cannot other constitutional the church’s ob- [The ABCC] find[s]

jection guarantees. under It then held that section is Section 16C was the basis on which the transfer was denied.” delegation legislative a power violating premises 1. “§ 16C. Licenses for near churches In this section a church shall mean a church or schools synagogue building or ship dedicated to divine wor- regular purpose, Premises, and in use for except but those of an innholder and chapel occupying portion except not a parts a minor buildings such as are located building uses, primarily level, ten or devoted to other more floors above street located elementary secondary within school shall mean an radius of five hundred feet of a church school, public private, giving or school shall not be not less than licensed for the sale of beverages governing training required alcoholic body if the minimum instruction and by chapter such objection seventy-one compul- church or school files written to children of thereto, provision apply sory but age. shall not premises transfer of a license from apply located This section shall not to an extension premises within said distance to other premises located provided of licensed said extension therein, if it is transferred to a location not less fifty does not exceed feet.” remote from the nearest church or school than complaint its former governing body jurisdiction location. The term 2. The asserted federal preceding as used in the sentence shall mean under 15 U.S.C. 15 and 28 § §§ U.S.C. & committee, public the school in the case of a school. a law reading, as well as A process, due literal without references religion violating the First cases, of “principal” “primary” rejected appellee’s equal It Amendment. might suggest question is whether but protection arguments, held that the chief or dominant of section 16C’s actions were not immune anti- state’s impact promotion op is as doctrine under the of Parker v. review *3 posed to are in some secular effect. We Brown, 341, 307, 317 63 S.Ct. 87 L.Ed. structed, however, that not at we need (1942). consequently 315 The court de- “ultimate tempt any “metaphysical” such clared section 16C void violation of the Educa judgment”. Committee for Public First and Fourteenth Amendments. Gren- n.39, v. Nyquist, tion 413 U.S. 783 93 Den, Goodwin, F.Supp. Inc. v. del’s 495 761 2955, 2971, (1973). L.Ed.2d 948 (D.Mass.1980). judgment, It certified this together with its of the appellants’ question denial Rather relevant is whether Brown, motion dismiss under Parker v. law “has the direct and immediate effect of pursuant to 28 U.S.C. 1292. We consent- § advancing religion” as contrasted ed to the appeal. hear “only a remote incidental advan effect original panel case, split ain (em tageous religious Id. institutions.” opinion, reversed the district court’s due phasis added).3 Pittenger, See also Meek v. process and judg- establishment of religion ments, upheld but analysis. its antitrust Lemon, Sloan v. Den, Goodwin, Grendel’s Inc. Nos. 80- 2982, 2987, & 80-1654 662 F.2d 88 1981). Appellees petitioned rehearing, denied, banc, which we and for rehearing en There is no doubt that 16C has we granted. which We now conclude that advancing some effect in in that religion the statute offends the establishment clause confers churches a benefit or valued of the First Amendment. We do reach not power. Looking to the substance of the process the due or antitrust claims. see, Lemon, in question, law Sloan As the Supreme Court has often an 832, 93 S.Ct. at nounced, a statute does not offend es permits Massachusetts churches deter long tablishment clause so as it a secu conclusively premises mine whether new purpose, lar principal its or primary effect their area will be allowed to sell1alcoholic neither advances nor religion, inhibits and it beverages. Spaulding, See Baser Mass. does not foster government an excessive App. 386 N.E.2d entanglement religion. E. g., Commit contemplates It is or true —whether not one tee for Public Regan, Education v. 444 U.S. may that a its neighbors church and bar 100 S.Ct. gain indulgence— over the sale such an (1980). Appellees do not contend that sec power that this grant specialized political tion 16C has other than secular purpose. is not religion. direct state fiscal aid to pass We thus step deciding the second however, show, Precedents the estab whether section has an respect 16C ing lishment confined clause’s strictures not advancement of can be described as “principal” “primary”. or religion.4 to the context supports of cash Indeed, Arkansas, gone say g., Epperson the Court has so far 4. E. as scrutiny (“anti- (1968) statutes will not survive this 89 S.Ct. possibility” (“the statute) should there be the “mere evolution” First Amendment part “might state permit assistance ‘in have the effect does not the state to that teach- ” advancing religion.’ ing learning princi- Committee for Public must be tailored to Nyquist, ples prohibitions any Education v. sect or (1973) (empha- Abington dogma”); School District original) Richardson, (quoting sis Schempp, Tilton v. readings); (school En- L.Ed.2d 844 Bible (1971)). Vitale, L.Ed.2d 790 gle v. (1962) (official pray- 8 issue, The extent of the benefit at more- entertainment community is not de over, is substantial. This benefit is the minimis. power of a veto sales however, We need rely solely on these roughly square (the one million feet area of factors since section contains a further a circle of 500 feet radius from church’s highly pertinent feature. The law dis- property lines) city’s of what be a most tributes benefits on explicitly religious commercially sites. valuable The statute that, basis. We are of course aware if simply requires “object[ that the church ]”. possible, statutes are to be construed to Leaving process aside the considerable due avoid constitutional defects. But no rea- issues of the lack of standards and the “church”, reading by sonable us of when absence of requirement of reasoned expressly defined as “a syna- church or decision,5 we note every that the law vests gogue building dedicated to divine wor- church give deny with a to an ship”, can transform section 16C into a reli- *4 establishment a privilege, the absence of giously neutral law. We face here a state which may threaten the viability of the law. highest recently Massachusetts’ court enterprise presence and the may of which read law in this a First Amendment context substantially enhance its profitability. and special found no content or limitation Looking at non-generalized this grant apart from the ordinary meaning of the churches of right of absolute discretion to employed.6 words Arno v. Alcoholic Bever- confer or important withhold an commercial ages Commission, 83, Control 377 Mass. 90- privilege in a teeming business and enter- 93, 1223, (1979). 384 N.E.2d 1228-29 See tainment area in addition to their non-wide- City also Samel v. Licensing Pittsfield ly right shared to be free from the noise Board, 908, 377 Mass. 384 N.E.2d 1230 attending nearby liquor disturbance (1979). We consequently are forced to the sales, we are say unable to grant this conclusion that language section 16C’s at a “remote and incidental effect very distinguishes least between reli- advantageous to religious institutions.” gious nonreligious groups granting Nyquist, 413 U.S. at 784 93 S.Ct. 2965. significant rights to the former that it with- The effect would perhaps be more striking holds from the latter.7

if the churches’ veto were to extend any place feet, of business within 500 Although explicit laws containing reli- but, think, we no more offensive to the gious apparently discrimination have been singling establishment clause. The out of appear too rare to for constitutional review the liquor-selling segment Court,8 of the business Supreme many in the there are ers) (proscribing governmental it, “power" 7. Since our conclusion does not demand we “prestige” support” deciding as well as “financial refrain from whether 16C’s religion). favor of inescapably use of the work “divine” means this law also discriminates between reli satisfactory say 5. It is no more gions. that churches But see Torcaso v. public can be relied not to violate some n.1 81 & S.Ct. inherent in this (1961). standardless of au- thority say than it would have been to in Lem- Appellants on v. Kurtzman that cite a number of cases in which churches can be trusted spend public upheld against not to laws monies for have been secular courses. 602, 618-19, See 403 clause attack. None involve U.S. statutes fa S.Ct. 2113- instance, cially religious (1971). 29 L.Ed.2d 745 classifications. For Commission, Walz v. Tax U.S. S.Ct. parties up The district court and the abstained did Court prosecuting exempted from the instant action for two hold a New York statute that from years anticipation bible”, property “religious, of the decision in Arno. taxation used for uncertainty “missionary” purposes together prop Since there can be no reasonable meaning language erty improvement”, about of the relevant for “moral used or mental decision, “tract, charitable, benevolent, missionary, section 16C after the Arno there is no hos justification educational, ap- infirmary, playground, pital, public for the further abstention that See, pellants urge. Sullivan, scientific, association, g., literary, Druker v. bar medical so 1972). ciety, library, cemetery patriotic, 458 F.2d historical or lay guidelines.

cases that reliable down The in Everson v. landmark decision Board (1948). 92 L.Ed. 649 See also Roemer Education recited states “cannot Works, Board of Public Catholics, Lutherans, exclude individual Jews, Mohammedans, Methodists, Baptists, Walz v. Tax at Non-believers, Presbyterians, or members (opinion Har- faith, faith, because of their or lan, J). Clauson, Zorach v. it, lack of receiving from the benefits of 96 L.Ed. 954 public legislation.” welfare The lesson inescapably emerges (1947) (em L.Ed. 711 judicial leg- consistent tradition is that phasis original). few months ago A islation receipt any sig- conditioning court language. reiterated this Thomas v. benefit, nificant power, privilege or on the Board, Review recipi- commitment of the members of the 1425,1431, ent group or to a institution faith Everson court made clear that also states is inherently a “law an establish- “pass religion, laws which aid one religions, aid all ment prefer religion”. or one another.” 330 67 S.Ct. at 511. Section its beyond 16C extends benefits This quoted direction has been fre schools, churches to which are defined as quently when First Amendment fundamen “elementary secondary school[s], public tals are reviewed. E. Board of Educa private, less giving not than the mini- Allen, tion v. *5 by mum training required instruction and 1923, 1926, (1968); 1060 20 L.Ed.2d Abing compulsory of children school [state law] ton v. School Schempp, District 374 U.S. age.”9 This does not dilute its forbidden 203, 216, 10 L.Ed.2d 844 religious legislation classification. (1963); Torcaso v. 367 U.S. defines in group some detail additional 1680, 1683,1684, 81 S.Ct. 6 L.Ed.2d to which it extends benefits —schools—and (1961); Maryland, McGowan 366 U.S. encompass definition cannot all who L.Ed.2d 393 (1961); Education, McCollum Board similarly of are otherwise situated to churches purposes”. n.l, against Id. at 667 90 S.Ct. at 1410. constitutional attack. In Horne v. Her- reasoning Yet central County, (Fla.Dist.Ct.App. court’s was the nando 297 So.2d 606 singled fact that New York “has not out 1974), one present the statute differed from the particular religious group church or or even section in it barred all 16C new alcohol such; rather, granted churches as it has ex sales within of an 1500 feet established church emption worship to all of within houses a granted or school. thus were Churches no dis- property by nonprofit, broad class of owned cretionary power. they veto Nor were defined quasi-public corporations”. Id. at 90 S.Ct. in that case as limited to houses of “divine at 1413. See also id. at 697-70 & 90 S.Ct. worship”. Similarly, “church” was left unde- Harlan, (opinion J.). Similarly, at 1426-27 of Michigan Liquor fined in Wiles v. Control Com- Sunday closing laws reviewed in McGowan mission, Mich.App. 229 N.W.2d 434 Maryland, 420, 453-59, 366 U.S. 81 S.Ct. (1975), although give the statute there did by were power. churches a veto addition to these also, applicable their terms to all citizens. See distinctions, we observe Education, Everson v. Board of analysis cursory. clause in each case was See n.l, (1947) L.Ed. 711 Larue, also California v. (permitting transporta to make boards (1972) (Stewart, living tion contracts for “children all remote J., concurring). any schoolhouse”). Compare Welsh v. States, United 90 S.Ct. Appellee many argues Massachusetts religious (apparent L.Ed.2d 308 discrimi religious. ground schools fact Our for objector nation in federal conscientious law unnecessary decision makes it for us to con- contrary by members, construed to the four sider this Cf. fcontention. Rhode Island Federa- concurring with fifth vote in the result based Norberg, tion of Teachers v. 630 F.2d 859- on statute’s of violation the establishment 1980) (examining facts to determine clause). benefit). facially the “true color” a neutral of Appellants point to two state decisions upheld liquor involving laws churches States, United respects except dedication “divine all worship”.10 L.Ed.2d 308 My a colleagues carving hold out therefore that section 16C We conclude protection churches schools zone of and “primary” “principal” has a of against liquor-serving establishments con- Consequently advancing religion.11 the dis- a “law the establishment stitutes court’s holding trict that section 16C is un- religion” because it conditions a “valued is constitutional affirmed. power” upon benefit or commitment to However, CAMPBELL, religious a faith. LEVIN H. Circuit Judge against accepted prac- must be viewed (dissenting). society enacting zoning tice our My reasons for that section believing 16C planning designed land-use laws in the panel’s is constitutional are set forth uses protect peace believed decision, repeat By way and I do not them. quiet from more offensive and raucous supplement, however, I add the follow- which, among the latter historical- uses — ing. ly, liquor preeminent. service stands Sec- I think the court strains find an estab- only the regulates buildings tion 16C uses of lishment clause violation. This case does property; (such it is not sort of law not involve of state fiscal aid to objector as those relating to conscientious (al- institutions. does Neither it status) which to ascertain the seeks “be- though imply otherwise) court seems to entirely liefs” individuals. One can be placing involve the of governmental irreligious prefer give edge and still prestige religious dogma. behind Cf. to churches liquor-serving establish- Arkansas, Epperson v. 89 S.Ct. planning. ments land-use School District Plainly, was designed, Abbington Schemp, “promote” active way, some or “ad- (1963); Engle object religion. vance” Its is to limit Vitale, realistically having poten- viewed as use— can this Nor case tial nuisance —where encroach *6 imagination equated stretch of the be persons engaging sensibilities of with those in which governmental privileg- (which church-type might range activities granted es have been or denied individuals worship clubs scouting) to mens’ on the basis of their beliefs. See commonly by non-religious believed even v. Board, Thomas Review 707, persons a different environment (1981); To- from that service. associated rasco v. might lead the legis- considerations Similar hospitals cf. protect Welsh lature to and libraries Twenty-first nothing present observe The Amendment does We form of section place Oiitsky has been in 1970. Prior since to this alter our decision in this case. See (1st sought regulate aspect O’Malley, 1979); time the state 597 F.2d 295 Cir. Wom Arno, Israel, alcohol sales different means. See en’s Liberation Union F.2d Mass, 1975). N.E.2d at 1226-27. prior longer primary regarding Since these are no ob- formulations Our conclusion effect effect, analysis we do not them in our viates the need whether section 16C consider to consider express entanglement opinion here and as to reli- no their consti- also causes excessive validity. Pittenger, gion. tutional Meek v. (no primary needed once substantially further consideration abridges 11. Because section 16C unnecessary found). Amendment, It makes it appellee standing the First court’s alternative us to consider the district mount this facial though might the statute even attack on similarly process analysis due this at most could since by prop- it be affected finding provide parallel support of un- See, erly Village drawn law. Schaub- constitutionality. same is true of its anti- merg Environment, The v. Citizens for a Better appellee reasoning, informs us that since money damages. no makes claim for neighbors it is against incompatible —indeed liquor establish- commonplace to outlaw COMPANY, SAN JUAN In re STAR areas. ments from residential Petitioner, stand, analysis is to my If brothers’ must rule out not

first amendment al., Plaintiffs, SOTO, Pedro Juan et even the present law but most modest laws Appellants, licenses banning liquor next door to a planning church. have to Land-use would ignore altogether plan- churches since such BARCELO, al., Carlos Romero et ning would confer “valued benefit or Defendants, Appellees, power” upon them. be Surely analysis right. cannot such an SOTO, re Pedro Juan et. Indeed, the exercise clause seem free would Petitioners, al., to mandate that churches be allowed the type legisla- same of consideration that the SOTO, al., Pedro Juan et might constitutionally give ture to some quiet-seeking part land use as legislature’s overall organize BARCELO, al., Miguel Carlos Romero et acceptable different in a generally land uses Intervenor, Agosto, Hernandez pattern. Appellant. The kind land-use planning here in 81-1086, 81-1096, Nos. 81-1137 is, moreover, legisla- issue better left and 81-1221. tures. Most members of the electorate— even churchgoers most likely appre- —are Appeals, United States Court of ciate good meal and an occasional drink. First Circuit. able, They through are well legisla- their tors, to balance overpro- strike a between Argued May tecting and underprotecting churches 26, 1981. Decided Oct. owners of restaurants and bars and their patrons. The decisions that be must made part game of a zero sum success where

on one side means loss on the Surely other.

society as a whole should be allowed to

make such decisions which fine-tune the

sort society we live and in. work

court’s fiat means that large even if a ma-

jority citizenry wishes an accommo-

dation more favorable to land such as uses

churches —because of the peace quiet them, value,

associated with their esthetic

and the special qualities they lend community, not necessarily of their because majority connotations —the must

lose out. I nothing see in the first amend-

ment which so divests the citizenry their

right regulate the kind community

they wish to inhabit.