(dissenting).
My reasons for believing that section 16C is constitutional are set forth in the panel’s decision, and I do not repeat them. By way of supplement, however, I add the following.
I think the court strains to find an establishment clause violation. This case does not involve a grant of state fiscal aid to religious institutions. Neither does it (although the court seems to imply otherwise) involve the placing of governmental power and prestige behind religious dogma. Cf. Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 238 (1968); School District of Abbington v. Schemp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engle v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Nor can this case by any stretch of the imagination be equated with those in which governmental privileges have been granted or denied individuals on the basis of their religious beliefs. See Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); To-rasco v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); cf. Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).
My colleagues hold that carving out a zone of protection for churches and schools against liquor-serving establishments constitutes a “law respecting the establishment of religion” because it conditions a “valued benefit or power” upon the commitment to a religious faith. However, section 16C must be viewed against the accepted practice in our society of enacting zoning and other land-use planning laws designed to protect uses believed to require peace and quiet from more offensive and raucous uses — among the latter of which, historically, liquor service stands preeminent. Section 16C regulates only the uses of buildings and property; it is not the sort of law (such as those relating to conscientious objector status) which seeks to ascertain the “beliefs” of individuals. One can be entirely irreligious and still prefer to give an edge to churches over liquor-serving establishments in land-use planning.
Plainly, section 16C was not designed, in some active way, to “promote” or “advance” religion. Its object is only to limit a use — realistically viewed as having a potential for nuisance — where it may encroach upon the sensibilities of persons engaging in church-type activities (which might range from worship to mens’ clubs and scouting) commonly believed even by non-religious persons to require a different environment from that associated with liquor service. Similar considerations might lead the legislature to protect hospitals and libraries *108against incompatible neighbors — indeed it is commonplace to outlaw liquor establishments from residential areas.
If my brothers’ analysis is to stand, the first amendment must rule out not only the present law but even the most modest laws banning liquor licenses next door to a church. Land-use planning would have to ignore churches altogether since such planning would confer a “valued benefit or power” upon them.
Surely such an analysis cannot be right. Indeed, the free exercise clause would seem to mandate that churches be allowed the same type of consideration that the legislature might constitutionally give to some other quiet-seeking land use as part of the legislature’s overall power to organize the different land uses in a generally acceptable pattern.
The kind of land-use planning here in issue is, moreover, better left to legislatures. Most members of the electorate— even most churchgoers — are likely to appreciate a good meal and an occasional drink. They are well able, through their legislators, to strike a balance between overprotecting churches and underprotecting the owners of restaurants and bars and their patrons. The decisions that must be made are part of a zero sum game where success on one side means loss on the other. Surely society as a whole should be allowed to make such decisions which fine-tune the sort of society we live and work in. The court’s fiat means that even if a large majority of the citizenry wishes an accommodation more favorable to land uses such as churches — because of the peace and quiet associated with them, their esthetic value, and the special qualities they lend to the community, not necessarily because of their religious connotations — the majority must lose out. I see nothing in the first amendment which so divests the citizenry of their right to regulate the kind of community they wish to inhabit.