Grendel's Den, Inc. v. Goodwin

• Decision Date: 05 June 1981
• Docket Number: 80-1654,Nos. 80-1653,s. 80-1653
• Citation: 662 F.2d 102
• Parties: 1981-2 Trade Cases 64,310 GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN, et al., Defendants, Appellees, Cambridge License Commission, et al., Defendants, Appellants. GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN, et al., Defendants, Appellants. . Reheard
• Court: U.S. Court of Appeals — First Circuit

Page 102

662 F.2d 102

1981-2 Trade Cases 64,310

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN, et al., Defendants, Appellees, Cambridge License Commission, et al., Defendants, Appellants.

GRENDEL'S DEN, INC., Plaintiff, Appellee, v. Herbert N. GOODWIN, et al., Defendants, Appellants.

Nos. 80-1653, 80-1654.

United States Court of Appeals, First Circuit.

Reheard June 5, 1981.

Decided July 28, 1981.

Gerald J. Caruso, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Thomas Miller, Asst. Atty. Gen., Boston, Mass., were on brief, for Goodwin, et al.

Birge Albright, Boston, Mass., Sp. Counsel for the City of Cambridge, with whom Russell B. Higley, City Sol. and David B. O'Connor, Legal Counsel, Cambridge Law Department, Cambridge, Mass., were on brief, for Cambridge License Commission, et al.

Laurence H. Tribe, Cambridge, Mass., with whom David Rosenberg and Ira Karasick, Cambridge, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. ^*

COFFIN, Chief Judge.

In this appeal, now being considered en banc, we determine whether a state, consistent with the establishment clause, may provide that premises shall not be licensed for the sale of liquor if a nearby church defined as "a church or synagogue building dedicated to divine worship" or school objects.

Appellee is a restaurant located in the Harvard Square area, a well-known business and entertainment center in Cambridge, Massachusetts. The Holy Cross Armenian Catholic Parish is located adjacent to appellee. In 1977, appellee, pursuant to a purchase agreement, applied to the Cambridge License Commission (CLC) for approval of an alcoholic beverage license. In Harvard Square and within 500 feet of the Holy Cross Church there are at least 26 premises licensed to sell liquor. Nonetheless Holy Cross objected to appellee's application. The CLC voted to deny the application, citing only Holy Cross's objection and noting that the church "is within 10 feet of the proposed location."

Appellee appealed this denial to the Massachusetts Alcoholic Beverages Control Commission (ABCC). After hearing, the ABCC upheld the CLC's action

"on the grounds that the governing board of the church objected ... under the provisions of Chapter 138, Section 16C, and this represents an absolute veto. (The ABCC) find(s) that the church's objection under Section 16C was the only basis on which the transfer was denied."

We state the text of section 16C in the margin. ¹

In late 1977, appellee brought suit in federal district court against the CLC and the members of the CLC and the ABCC in their official capacities. Appellee sought relief on four theories: that section 16C "on its face and as applied" violated the equal protection and due process guarantees, the establishment clause of the First Amendment, and the Sherman Act. ² The appellants moved both that the court abstain and that it dismiss the complaint for failure to state a claim. After a voluntary continuance of the suit pending decision by the Massachusetts Supreme Judicial Court in Arno v. Alcoholic Beverages Control Commission, 377 Mass. 83, 384 N.E.2d 1223 (1979), a case that ultimately upheld section 16C against due process and establishment clause challenges, the district court denied the appellants' motion to dismiss. The litigants then stipulated to facts and moved for summary judgment on all counts except the "question of whether or not the church in fact exercised its power under ... § 16A in an arbitrary or otherwise discriminatory manner" (emphasis added).

The district court first ruled that the state's powers under the Twenty-first Amendment, which prohibits the importation of liquor into states in violation of their laws, cannot displace other constitutional guarantees. It then held that section 16C is a delegation of legislative power violating due process, as well as a law respecting an establishment of religion violating the First Amendment. It rejected appellee's equal protection arguments, but held that the state's actions were not immune from antitrust review under the doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1942). The court consequently declared section 16C void in violation of the First and Fourteenth Amendments. Grendel's Den, Inc. v. Goodwin, 495 F.Supp. 761 (D.Mass.1980). It certified this judgment, together with its denial of the appellants' motion to dismiss under Parker v. Brown, pursuant to 28 U.S.C. § 1292. We consented to hear the appeal.

The original panel in this case, in a split opinion, reversed the district court's due process and establishment of religion judgments, but upheld its antitrust analysis. Grendel's Den, Inc. v. Goodwin, Nos. 80-1653 & 80-1654 662 F.2d 88 (1st Cir. 1981). Appellees petitioned for rehearing, which we denied, and for rehearing en banc, which we granted. We now conclude that the statute offends the establishment clause of the First Amendment. We do not reach the due process or antitrust claims.

As the Supreme Court has often announced, a statute does not offend the establishment clause so long as it has a secular purpose, its principal or primary effect neither advances nor inhibits religion, and it does not foster an excessive government entanglement with religion. E. g., Committee for Public Education v. Regan, 444 U.S. 646, 653, 100 S.Ct. 840, 846, 63 L.Ed.2d 94 (1980). Appellees do not contend that section 16C has other than a secular purpose. We thus pass to the second step of deciding whether section 16C has an effect respecting the advancement of religion that can be described as "principal" or "primary".

A literal reading, without references to cases, of "principal" and "primary" might suggest that the question is whether the chief or dominant effect of section 16C's impact is the promotion of religion as opposed to some secular effect. We are instructed, however, that we need not attempt any such "metaphysical" "ultimate judgment". Committee for Public Education v. Nyquist, 413 U.S. 756, 783 n.39, 93 S.Ct. 2955, 2971, 37 L.Ed.2d 948 (1973). Rather the relevant question is whether the law "has the direct and immediate effect of advancing religion" as contrasted with "only a remote and incidental effect advantageous to religious institutions." Id. (emphasis added). ³ See also Meek v. Pittenger, 421 U.S. 349, 364-65, 95 S.Ct. 1753, 1762-63, 44 L.Ed.2d 217 (1975); Sloan v. Lemon, 413 U.S. 825, 832, 93 S.Ct. 2982, 2987, 37 L.Ed.2d 939 (1973).

There is no doubt that section 16C has some effect in advancing religion in that it confers upon churches a valued benefit or power. Looking to the substance of the law in question, see, e. g., Sloan v. Lemon, 413 U.S. at 832, 93 S.Ct. at 2987, section 16C permits Massachusetts churches to determine conclusively whether new premises in their area will be allowed to sell alcoholic beverages. See Baser v. Spaulding, 7 Mass.App. 268, 269, 386 N.E.2d 1306, 1307 (1979). It is true whether or not one contemplates that a church and its neighbors may bargain over the sale of such an indulgence that this grant of specialized political power is not direct state fiscal aid to religion. Precedents show, however, that the establishment clause's strictures are not confined to the context of cash supports to religion. ⁴

The extent of the benefit at issue, moreover, is substantial. This benefit is the grant of a veto power over liquor sales in roughly one million square feet (the area of a circle of 500 feet radius from a church's property lines) of what may be a city's most commercially valuable sites. The statute simply requires that the church "object( )". Leaving aside the considerable due process issues of the lack of standards and the absence of any requirement of reasoned decision, ⁵ we note that the law vests every church with a power to give or deny to an establishment a privilege, the absence of which may threaten the viability of the enterprise and the presence of which may substantially enhance its profitability. Looking at this non-generalized grant to churches of a right of absolute discretion to confer or withhold an important commercial privilege in a teeming business and entertainment area in addition to their non-widely shared right to be free from the noise and disturbance attending nearby liquor sales, we are unable to say that this grant has only a "remote and incidental effect advantageous to religious institutions." Nyquist, 413 U.S. at 784 n.30, 93 S.Ct. 2965. The effect would perhaps be more striking if the churches' veto power were to extend to any place of business within 500 feet, but, we think, no more offensive to the establishment clause. The singling out of the liquor-selling segment of the business and entertainment community is not de minimis.

We need not however, rely solely on these factors since section 16C contains a further and highly pertinent feature. The law distributes benefits on an explicitly religious basis. We are of course aware that, if possible, statutes are to be construed to avoid constitutional defects. But no reasonable reading by us of "church", when expressly defined as "a church or synagogue building dedicated to divine worship", can transform section 16C into a religiously neutral law. We face here a state law. Massachusetts' highest court recently read this law in a First Amendment context and found no special content or limitation apart from the ordinary meaning of the words employed. ⁶ Arno v. Alcoholic Beverages Control Commission, 377 Mass. 83, 90-93, 384 N.E.2d 1223, 1228-29 (1979). See also Samel v. City of Pittsfield Licensing Board, 377 Mass. 908, 384 N.E.2d 1230 (1979). We consequently are forced to the conclusion that section 16C's language at the very least distinguishes between religious and nonreligious groups by granting significant rights to the former that it withholds from the latter. ⁷

Although laws containing explicit religious...