Larkin v. Grendel's Den, Inc.
Decided on Dec. 13, 1982; 459 US 116


A. Issues Discussed: Establishment Clause, Due Process Clause

B. Legal Question Presented:

Does a state statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violate the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment?


A. Background:

"Appellee operates a restaurant located in the Harvard Square area of Cambridge, Mass. The Holy Cross Armenian Catholic Parish is located adjacent to the restaurant; the back walls of the two buildings are 10 feet apart. In 1977, appellee applied to the Cambridge License Commission for approval of an alcoholic beverages license for the restaurant.

Section 16C of Chapter 138 of the Massachusetts General Laws provides: 'Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.'

Holy Cross Church objected to appellee's application, expressing concern over 'having so many licenses so near'. The License Commission voted to deny the application, citing only the objection of Holy Cross Church and noting that the church 'is within 10 feet of the proposed location.'

On appeal, the Massachusetts Alcoholic Beverages Control Commission upheld the License Commission's action....

Appellee then sued the License Commission and the Beverages Control Commission in United States District Court. Relief was sought on the grounds that 16C, on its face and as applied, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Establishment Clause of the First Amendment, and the Sherman Act....

The District Court held that 16C violated the Due Process Clause and the Establishment Clause and held 16C void on its face... [but] rejected appellee's equal protection arguments...

A panel of the First Circuit, in a divided opinion, reversed the District Court on the Due Process and Establishment Clause arguments...

Appellee's motion for rehearing en banc was granted and the en banc court, in a divided opinion, affirmed the District Court's judgment on Establishment Clause grounds..."

On appeal the US Supreme Court affirmed the judgment of the US First Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance by Charles S. Sims and John Reinstein filed a brief for the American Civil Liberties Union et al.

Laurence H. Tribe argued the cause and filed briefs for appellee.

Gerald J. Caruso, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for appellants. With him on the briefs for appellants Larkin et al. were Francis X. Bellotti, Attorney General, and Paul W. Johnson, Special Assistant Attorney General. David B. O'Connor and Birge Albright filed a brief for appellant Cambridge License Commission.

"Appellants contend that the State may, without impinging on the Establishment Clause of the First Amendment, enforce what it describes as a 'zoning' law in order to shield schools and places of divine worship from the presence nearby of liquor-dispensing establishments. It is also contended that a zone of protection around churches and schools is essential to protect diverse centers of spiritual, educational, and cultural enrichment. It is to that end that the State has vested in the governing bodies of all schools, public or private, and all churches, the power to prevent the issuance of liquor licenses for any premises within 500 feet of their institutions.

Plainly schools and churches have a valid interest in being insulated from certain kinds of commercial establishments, including those dispensing liquor. Zoning laws have long been employed to this end, and there can be little doubt about the power of a state to regulate the environment in the vicinity of schools, churches, hospitals, and the like by exercise of reasonable zoning laws....

However, 16C is not simply a legislative exercise of zoning power. As the Massachusetts Supreme Judicial Court concluded, 16C delegates to private, nongovernmental entities power to veto certain liquor license applications...

The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other 18th-century systems. Religion and government, each insulated from the other, could then coexist....

The churches' power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors; it could be employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith....

Section 16C substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of '[p]olitical fragmentation and divisiveness on religious lines,'. Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution...."

The US Supreme Court affirmed the judgment of the US First Circuit Court of Appeals.

Justice Vote: 8 Pro vs. 1 Con

  • Burger, W. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • Stevens, J.P. Pro (Joined majority opinion)
  • O'Connor, S.D. Pro (Joined majority opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

    The ACLU, as amicus curiae, urged affirmance of the US First Circuit Court of Appeals' judgment; the Supreme Court affirmed in an 8-1 vote, giving the ACLU an apparent win.