Taunton Eastern Little League v. City of Taunton

• Decision Date: 18 July 1983
• Citation: 452 N.E.2d 211,389 Mass. 719
• Parties: TAUNTON EASTERN LITTLE LEAGUE v. CITY OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 211

452 N.E.2d 211

389 Mass. 719

TAUNTON EASTERN LITTLE LEAGUE v. CITY OF TAUNTON.

Supreme Judicial Court of Massachusetts Bristol.

Argued March 8, 1983.

Decided July 18, 1983.

James H. Fagan, Taunton, for plaintiff.

David T. Gay, City Sol., for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff brought an action in the Superior Court under G.L. c. 249, § 4, seeking to quash a decision of the municipal council of the city of Taunton (council). The challenged decision rescinded the council's prior approval of the plaintiff's application for a beano license. The Superior Court upheld the decision, and the plaintiff appealed. ¹ We transferred the case to this court on our own motion. We affirm.

The parties agreed to the following facts. The Taunton Eastern Little League (Little League) is an organization eligible to receive a beano license from the State Lottery Commission (commission) under G.L. c. 10, § 38. ² Pursuant to § 38, the Little League filed an application with the council for a license to conduct a beano game on Thursday nights in Taunton. The council approved the application on February 24, 1981. The application was then sent to the commission. After approval by the commission, the only remaining step in the licensing procedure was for the license to be delivered to the Little League.

After the commission's approval, but before the license was delivered, members of Our Lady of Lourdes parish, a Roman Catholic religious organization, filed a petition asking the council to rescind its approval of the Little League's application. Our Lady of Lourdes parish already had a license to conduct a beano game on Thursday nights in Taunton. The council heard arguments on the petition on March 3 and March 17, 1981. The transcripts of these meetings were incorporated into the statement of agreed facts. At the conclusion of the March 17, 1981, meeting, the council voted to rescind its approval of the Little League's application.

The reason for rescission, as stated by the council, was to protect the revenues received by Our Lady of Lourdes parish from its Thursday night beano games from being diminished by the competition resulting from the operation of a beano game by the Little League on the same night. The council stated that its purpose in protecting those revenues is that they are used to support a private, Roman Catholic grammar school run by Our Lady of Lourdes parish and that, if the revenues dwindled because of competition, the school would be forced to close and the Taunton public school system would suffer a substantial impact from the resulting influx of students.

The city has not adopted any guidelines, ordinances, or regulations concerning the approval of beano licenses. At the time of the Little League's application, the city had a beano game licensed for each night of the week and for all times authorized by G.L. c. 10, § 38, so that the application for a license of the Little League would have resulted in the first license granted in competition with an existing license.

General Laws c. 10, § 38, authorizes certain organizations, including "any religious organization under the control of or affiliated with an established church of the commonwealth," to receive a beano license from the State Lottery Commission. It provides in part that "[t]he profits of any game licensed to be conducted under this section shall be the property of the organization conducting said game, and shall be used for charitable, religious or educational purposes ...." The Little League does not challenge the constitutionality of § 38. Therefore, we assume for the purposes of this case that the Commonwealth may constitutionally allow churches to receive beano licenses and to use the funds earned from their beano games for religious purposes. Nor does the plaintiff rely on art. 18, § 2, the anti-aid amendment, or any other provision of the Massachusetts Constitution. The only issue presented for our consideration is whether the council violated the establishment clause of the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, in rescinding its approval of the Little League's application. ³

The Supreme Court of the United States has developed a three-part test to determine whether government action is constitutional under the establishment of religion clause. "First, the [action] must have a secular ... purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... finally, the [action] must not foster 'an excessive government entanglement with religion' " (citations omitted). Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). See Mueller v. Allen, 463 U.S. ----, ----, 103 S.Ct. 3062, 3066, 76 L.Ed.2d --- (1983); Stone v. Graham, 449 U.S. 39, 40, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980) (per curiam); Kent v. Commissioner of Educ., 380 Mass. 235, 241, 402 N.E.2d 1340 (1980); Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558, 392 N.E.2d 1195 (1979).

We conclude that the first of these three tests was satisfied in that there was a secular purpose. The parties agree that the council rescinded its approval of the plaintiff's license in order to keep open the Roman Catholic grammar school run by Our Lady of Lourdes parish, because the Taunton public school system would receive a substantial impact from the influx of students were the parochial school to close. In Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948 (1973), the Supreme Court considered a program providing benefits to nonpublic schools, including tax credits and tuition reimbursements to parents of children attending nonpublic schools which served high concentrations of children from low income families. The Court struck down the program based on its effect (see infra ) but, in discussing the secular purpose requirement, the Court acknowledged "the reality of [the State of New York's] concern for an already overburdened public school system that might suffer in the event that a significant percentage of children presently attending nonpublic schools should abandon those schools in favor of the public schools." Id. at 773, 93 S.Ct. at 2966. See Mueller v. Allen, supra. Compare Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193, 66 L.Ed.2d 199 (1980), where the Supreme Court rejected Kentucky's avowed secular purpose for posting the Ten Commandments on schoolroom walls, since the preeminent purpose was plainly religious. See American Civil Liberties Union of Ga. v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir.1983) (cross was maintained in State park for religious reasons, not to promote tourism); Griswold Inn, Inc. v. State, 183 Conn. 552, 441 A.2d 16, 21 (1981) (since Good Friday was only holiday on which sale of liquor was prohibited, prohibition had no secular purpose).

Although the finding of a secular purpose in Nyquist clearly rested on the broad class aided--nonpublic schools--we conclude that the Nyquist rationale is applicable here. The Council's decision concerned a single religious group only because the context, licensing, necessarily involves individual consideration of each licensee. The parish was one of the groups authorized by § 38 to receive a beano license. In this situation, the fact that the council's decision focused on one parochial school does not establish that their decision had no secular purpose.

The plaintiff's main contention is that the council's action had the impermissible primary effect of advancing religion, and is consequently invalid under the second of the three tests. The plaintiff relies on several Supreme Court cases which invalidated various types of State aid to parochial schools because the aid was not limited to purely secular uses. See Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 358-359, 95 S.Ct. 1753, 1759-1760, 44 L.Ed.2d 217 (1975); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774, 93 S.Ct. 2955, 2966, 37 L.Ed.2d 948 (1973). The Little League argues that under these cases the council's action was unconstitutional because it provided indiscriminate financial aid to a parochial school. These cases are inapposite because they involve the transfer of public funds in aid of parochial schools. Wolman invalidated statutes authorizing the expenditure of public funds to provide nonpublic schools with instructional materials, equipment and field trips; Meek invalidated State supported programs providing instructional materials, remedial testing, and therapeutic services conducted in sectarian schools; and Nyquist struck down statutes providing direct "maintenance and repair" grants to nonpublic schools, as well as tuition reimbursements and tax credits to parents in certain income brackets who sent their children to nonpublic schools. In the instant case, the council's action did not provide public funds to Our Lady of Lourdes parish. While it is clear that government action can violate the establishment clause without involving the expenditure of public funds, see, e.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), the absence of this factor in the instant case distinguishes it from those involving public aid to sectarian institutions. Moreover, G.L. c. 10, § 38, provides that in the case of religious organizations the revenues earned from beano games shall be used for religious purposes. Absent a challenge to the statute, the plaintiff cannot argue that funds received by a parochial school from a beano game constitute State financial aid to religion. ⁴

We conclude that the council's action preferring the parish over the Little League did not have the primary effect of...