Larkin v. Grendel's Den, Inc.

Justice Rehnquist,

dissenting.

Dissenting opinions in previous cases have commented that “great” cases, like “hard” cases, make bad law. Northern Securities Co. v. United States, 193 U. S. 197, 400-401 (1904) (Holmes, J., dissenting); Nixon v. Administrator of General *128Services, 433 U. S. 425, 505 (1977) (Burger, C. J., dissenting). Today’s opinion suggests that a third class of cases— silly cases — also make bad law. The Court wrenches from the decision of the Massachusetts Supreme Judicial Court the word “veto,” and rests its conclusion on this single term. The aim of this effort is to prove that a quite sensible Massachusetts liquor zoning law is apparently some sort of sinister religious attack on secular government reminiscent of St. Bartholomew's Night. Being unpersuaded, I dissent.

In its original form, § 16C imposed a flat ban on the grant of an alcoholic beverages license to any establishment located within 500 feet of a church or a school. 1954 Mass. Acts, ch. 569, § 1. This statute represented a legislative determination that worship and liquor sales are generally not compatible uses of land. The majority concedes, as I believe it must, that “an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions,” ante, at 124 (footnote omitted), would be valid. See California v. LaRue, 409 U. S. 109, 120 (1972) (Stewart, J., concurring).

Over time, the legislature found that it could meet its goal of protecting people engaged in religious activities from liquor-related disruption with a less absolute prohibition. Rather than set out elaborate formulae or require an administrative .agency to make findings of fact, the legislature settled on the simple expedient of asking churches to object if a proposed liquor outlet would disturb them. Thus, under the present version of § 16C, a liquor outlet within 500 feet of a church or school can be licensed unless the affected institution objects. The flat ban, which the majority concedes is valid, is more protective of churches and more restrictive of liquor sales than the present § 16C.

The evolving treatment of the grant of liquor licenses to outlets located within 500 feet of a church or a school seems to me to be the sort of legislative refinement that we should encourage, not forbid in the name of the First Amendment. If a particular church or a particular school located within the *129500-foot radius chooses not to object, the State has quite sensibly concluded that there is no reason to prohibit the issuance of the license. Nothing in the Court’s opinion persuades me why the more rigid prohibition would be constitutional, but the more flexible not.

The Court rings in the metaphor of the “wall between church and state,” and the “three-part test” developed in Walz v. Tax Comm’n, 397 U. S. 664 (1970), to justify its result. However, by its frequent reference to the statutory provision as a “veto,” the Court indicates a belief that § 16C effectively constitutes churches as third houses of the Massachusetts Legislature. See ante, at 125-126. Surely we do not need a three-part test to decide whether the grant of actual legislative power to churches is within the proscription of the Establishment Clause of the First and Fourteenth Amendments. The question in this case is not whether such a statute would be unconstitutional, but whether §16C is such a statute. The Court in effect answers this question in the first sentence of its opinion without any discussion or statement of reasons. I do not think the question is so trivial that it may be answered by simply affixing a label to the statutory provision.

Section 16C does not sponsor or subsidize any religious group or activity. It does not encourage, much less compel, anyone to participate in religious activities or to support religious institutions. To say that it “advances” religion is to strain at the meaning of that word.

The Court states that §16C “advances” religion because there is no guarantee that objections will be made “in a religiously neutral way.” Ante, at 125. It is difficult to understand what the Court means by this. The concededly legitimate purpose of the statute is to protect citizens engaging in religious and educational activities from the incompatible activities of liquor outlets and their patrons. The only way to decide whether these activities are incompatible with one another in the case of a church is to ask whether the activities of liquor outlets and their patrons may interfere with religious *130activity; this question cannot, in any meaningful sense, be “religiously neutral.” In this sense, the flat ban of the original § 16C is no different from the present version. Whether the ban is unconditional or may be invoked only at the behest of a particular church, it is not “religiously neutral” so long as it enables a church to defeat the issuance of a liquor license when a similarly situated bank could not do the same. The State does not, in my opinion, “advance” religion by making provision for those who wish to engage in religious activities, as well as those who wish to engage in educational activities, to be unmolested by activities at a neighboring bar or tavern that have historically been thought incompatible.

The Court is apparently concerned for fear that churches might object to the issuance of a license for “explicitly religious” reasons, such as “favoring liquor licenses for members of that congregation or adherents of that faith.”* Ante, at 125. If a church were to seek to advance the interests of its members in this way, there would be an occasion to determine whether it had violated any right of an unsuccessful applicant for a liquor license. But our ability to discern a risk of such abuse does not render § 16C violative of the Establishment Clause. The State can constitutionally protect churches from liquor for the same reasons it can protect them from fire, see Walz, supra, at 671, noise, see Grayned v. City of Rockford, 408 U. S. 104 (1972), and other harm.

The heavy First Amendment artillery that the Court fires at this sensible and unobjectionable Massachusetts statute is both unnecessary and unavailing. I would reverse the judgment of the Court of Appeals.

1 doubt whether there exists a denomination that considers supporting the liquor license applications of its members to be a part of its theology. However else a church’s goal in objecting to issuance of a liquor license on such a basis might be characterized, it would certainly be strictly temporal. I note in passing that § 16C does not confer on any church any power to obtain a liquor license for anyone.