Posted by Matthew Cavedon on February 14, 2013

In 1982, the U.S. Supreme Court overturned a Massachusetts statute that gave churches a veto over liquor licenses granted to establishments within five hundred feet of their premises.¹ In Larkin v. Grendel’s Den, Inc., a Harvard Square pub brought suit after its license request was vetoed by its then-neighbors at Holy Cross Roman Catholic Armenian Church.²  The Court ruled in the pub’s favor, holding that the statute violated the First Amendment’s Establishment Clause by unconstitutionally creating a “fusion of governmental and religious functions.”³  At first blush, Larkin looks like a triumph for drinkers over puritan busybodies.  Reasonably enough, Grendel’s Den celebrates it as one—a newspaper clipping from the day of the decision is framed on their wall.  The Court found it troubling that Massachusetts “delegate[d] to private, nongovernmental entities power to veto” liquor licenses⁴—a concern that could reasonably be shared by drinkers across the land, from Mormon areas of Utah to the dry county in Tennessee where the Jack Daniels distillery is located.

But like beer goggles wearing off, Larkin gets worse for drinkers as one’s thinking gets clearer.  Its denial of veto powers for churches ultimately meant that places hoping to serve alcohol could no longer negotiate with churches over their rights, even though states and cities can still have laws banning alcohol near churches altogether.  By kicking alcohol licensing back directly to the government, Larkin stopped churches and drinkers from reaching decisions together.  As is true enough for the aftermath of many alcohol-related decisions, Larkin is not as helpful a case as it seemed at the time.

When Larkin was decided, ten states including Massachusetts granted veto powers over liquor licenses to churches, while twenty-one others flat-out prohibited the sale of liquor near churches.⁵  The logic of these laws was fairly straightforward; they existed to keep the “‘hurly-burly’ associated with liquor outlets” away from places of worship.⁶  Under Massachusetts law, simply by “expressing concern over ‘having so many licenses so near,’” Holy Cross Church was able to prevent Grendel’s Den from becoming a local watering hole.⁷  Especially in a college town like Cambridge, even a frequent imbiber could understand the Court finding “little doubt that this embraces valid . . . legislative purposes.”⁸  There were problems with the law—trouble is brewing whenever anyone can limit legal rights without providing a reason—but its framers were reasonable in identifying a need for it.

It was not the law’s particular flaws, though, that proved the crux of the Court’s ruling.  Grendel’s Den’s lawyer, legendary Harvard law professor Laurence Tribe (who took on the case after one of his students complained about not being able to get a beer at lunch thanks to Holy Cross), made the case’s central question “whether religious bodies could be given governmental power.”⁹  In siding with Grendel’s Den, the Court did not take issue with restricting alcohol sales near churches, but was troubled by the “mere appearance of a joint exercise of legislative authority by Church and State” in violation of the Establishment Clause.¹⁰  “The Framers did not set up a system of government,” Chief Justice Warren Burger wrote for the Court, “in which important, discretionary governmental powers would be delegated to or shared with religious institutions.”¹¹  Governments can pass laws prohibiting alcohol from being served near churches altogether, or decide whether to grant a license after hearings where “the views of affected institutions . . . would be entitled to substantial weight” (although how much weight was actually given, naturally, would be hard to say in such a discretionary setting).¹²  But they cannot leave those decisions in the hands of neighboring churches themselves.

Then-Justice William Rehnquist, the sole dissenter in Larkin, thought that the decision displayed a lack of common sense that one might normally expect after a late-night whiskey bout (even if, unfortunately, he didn’t quite put it that way).  Noting an earlier Massachusetts statute that had “imposed a flat ban on the grant of alcoholic beverages licenses to any establishment located within 500 feet of a church or a school,”¹³  Rehnquist wondered “why the more rigid prohibition would be constitutional, but the more flexible not.”¹⁴  “[T]he legislature settled on the simple expedient of asking churches to object if a proposed liquor outlet would disturb them,” he wrote.  “The flat ban . . . is more protective of churches and more restrictive of liquor sales” than letting churches decide would be.¹⁵

Had Justice Rehnquist carried the day, the Massachusetts statute would have stood, rather than being knocked down like a drunk.¹⁶  Admittedly, things may not have gone well for Grendel’s Den.¹⁷  But the law would have allowed neighbors to work things out amongst themselves.  Pub owners might limit noise and step up bouncing during Masses and services, or offer discounts to local parishioners.  Churches could trade license permission for donations or cleanup assistance.  It would be up to neighbors to weigh the costs and benefits of serving alcohol, and to make trades accordingly.

At first glance, Larkin seems like good news for drinkers, but upon closer examination it becomes clear that Larkin swaps neighborly arrangements for absolute prohibitions.  Fortunately, three decades after Larkin, only eleven states still have laws restricting alcohol sales near churches.¹⁸  For those that do, the better solution for worshipers and tipplers alike would be flexibility.  Here’s to hoping change are made to allow the people most affected by laws the power to help make them, either by overturning Larkin or simply giving churches the power to green-light licenses that would otherwise fail because of their proximity.