(dissenting).
The court upholds a state law that confers upon churches (and schools) an absolute veto power over the proposed sale of alcohol within 500 feet. Although I appreciate the minimal span of this baby step, I believe it has managed to cross the threshold of the Establishment Clause.
Because this is a facial challenge, we must read the statute with an eye sensitive to constitutional problems presented by the law’s very language. I see several difficulties. First, and, I presently think most important, is the strange delegation of political or governmental power on an explicitly religious basis. Apart from schools, the only entity that can veto a liquor license is “a church or synagogue building dedicated to divine worship and in regular use for this purpose”. This formula is an extraordinarily precise definition. The building must be that of a “church” or “synagogue” dedicated to “divine worship”. Whether a mosque, marabout, pagoda, or tope would qualify is an open question for the purposed use of *101the building must be “divine worship”. Whether Buddhism, Confucianism, or transcendentalism (of either oriental or New England variety) can be comfortably cab-ined under such a label may be doubted.
There may well be other important as-semblings of the human race whose activities could be described as “worship” but whose object is not “divine”; conversely, there may be those whose objective is “divine” but whose activities fall somewhat short of (or outside of) “worship”. Yet in their need for calm and quiet, in their hours of operation, in their political power (or lack of it), they may be identical to the paradigm Christian church or Jewish synagogue. The court’s opinion distinguishes between churches and schools on the one hand and hospitals and libraries on the other. These are not the difficult comparisons. To me the problem is seen more clearly if we consider, for instance, groups regularly meeting to discuss agnosticism or situational ethics.
I would not relish the task of identifying the institutions, groups, and ephemeral gatherings that would lie within and without the pale. Such line drawing, I fear, would bring one within the interdiction of preferring one religion over another. More importantly, even if all gatherings of religiously oriented humankind can be harmoniously put under one roof, section 16C would confer on religious organizations a governmental power denied to all others except schools.* While governmental assistance to organized religion is effectuated through tax exemptions for institutions and charitable deductions for their adherents, such measures are also widely applicable to other institutions, organizations and causes. I can think of no area where we restrict the receipt of a governmental benefit or privilege solely to a religious group or institution.
The court’s opinion posits the proposition that since a municipality could impose a liquor free zone surrounding any church, it clearly may soften the impact by allowing churches the option of refraining from vetoing license applications. Whether or not the first part of this proposition is true, the second part does not follow. Although our law gives conscientious objectors the privilege of refusing military service, a law that allowed religious institutions to determine who qualified as conscientious objectors would surely be invalid.
Even if the delegation of power to religious bodies to dispense governmental privilege were permissible, section 16C suffers the particular defect of permitting absolutely standardless exercise of this power. Arno v. Alcoholic Beverage Control Commission, 377 Mass. 83, 90, 92, 384 N.E.2d 1223, 1228, 1229 (1979) (scrutiny of church objection limited “to such questions as whether the objecting institution qualifies as a ‘church’ for the purposes of the statute, whether it is within the statutorily protected zone of 500 feet, and whether the written objection was duly authorized by the appropriate ‘governing body’ of. the church”).
The possession of unbridled discretion is a power we do not give even to popularly elected officials. It is no denigration of religious organizations to acknowledge that, being constituted of fallible human beings, their exercise of uncontrolled discretion may on occasion be less than high minded or, if high minded, wrongly directed. But what troubles me more deeply than easily conjectured examples of arbitrariness is the simple fact that section 16C grants an unrestricted power to deny liquor licenses, a power that can be used to serve sectarian purposes, to churches but not to other similarly situated organizations. So to characterize this case is, for me, to decide it. Laws may not have more than a “remote and incidental” effect in the advancement of religion. Committee for Public Education v. Nyquist, 413 U.S. 756, 784 n.39, 93 S.Ct. 2955, 2971 n.39, 37 L.Ed.2d 948 (1973). I believe that a statute that invites churches into the neighborhood political arena by granting them discretionary veto *102powers over commercially significant activity based on their religious status must have more than such an effect.
Cf. Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855, 861 (1st Cir. 1980) (extent to which affected class is sectarian is a “pivotal factor in determining . .. constitutionality”).