Law enabling churches to ban nearby liquor sales nears high court test

Should churches be able to veto the presence of liquor establishments in their neighborhoods? This question -- about which there has been considerable disagreement between the Massachusetts and federal judiciary (and even within the latter) -- may be heading for the US Supreme Court.

At issue is a controversial Bay State law empowering churches to block issuance of liquor licenses to establishments within 500 feet of their property.

A three-judge federal appeals court, in a 2- to-1 decision, struck down the measure on grounds it violates the US Constitution's prohibition of government powers to private parties.

This ruling follows a seesaw pattern of decisions on the issue. Last August, the Massachusetts Supreme Judicial Court unanimously upheld the constitutionality of the church veto measure. Less than two weeks later, a federal district court judge struck down the law. Last April, a three-judge federal appeals court overturned his ruling by a 2-to-1 margin. On July 28 the court reversed itself, again by 2 to 1, and ruled that the statute was unconstitutional.

An appeal of the verdict in the US Supreme Court is now being readied by state Attorney General Francis X. Bellotti, whose policy has been to defend, as far as possible, challenged Massachusetts laws.

Other states with similar measures, which could be put in jeopardy by the federal court of appeals ruling, may be asked to join in the effort to have the matter resolved by the nation's highest court.

A similar law in Michigan was upheld in 1975 by a Michigan state court of appeals, according to Gerald Caruso, a Bellotti assistant who has been handling the current Bay State litigation.

If the latest court ruling is not challenged, it could be a lot easier for liquor stores and bar rooms to open in close proximity to churches and schools throughout the commonwealth. Officials of these religious and educational institutions still could object to the issuance of alcoholic beverage permits, but could no longer exercise a veto over them.

Prior to 1969, Massachusetts had a flat ban on the granting of liquor licenses within 500 feet of a church or school. However, it was changed to permit such licenses if officials of the nearby religious or educational institution had no objections in a specific instance. To exercise a veto, the church or school was required to advise in writing their position to the local liquor licensing board.

If the previous law were still in effect, a challenge on constitutional grounds could not prevail since there would be no vesting of discretionary authority in churches.

The commonwealth could presumably reenact the original law blocking all new liquor licenses within a certain distance of a church or school. Prospects for such legislation, however, are uncertain, because it would considerably restrict the authority of licensing boards and applicants for alcoholic beverage permits.

In the meantime, unless the appeals court ruling is reversed, liquor establishments could be allowed to open wherever they want in the commonwealth, providing local licensing authorities give their consent. This would be despite any objections from officials of nearby churches who will have a right to be heard but will have no veto.

The Massachusetts litigation, initiated by a Cambridge restaurant, disputes the right of the nearby Holy Cross Armenian Catholic Church to prevent issuance of a liquor license as it has done for the past 11 years.

The restaurant contends that it has been unfairly discriminated against since there are 26 liquor establishments within 500 feet of the church, and the issuances of these licenses was not vetoed by church officials.

In its majority decision overturning the Bay State law, the federal appeals court cited the First Amendment prohibition against establishment of a state religion, and held that the veto measure "has a primary or principal effect on advancing religion." The fact that schools also may exercise such authority to block a liquor license did not influence the religious classification, the court said.

In last August's federal district court ruling rejecting the statute as unconstitutional, Judge Joseph L. Tauro held that it "provides the potential for abuse," adding "public money and public power may not be used, if the primary effect of that use is to advance churches as religious institutions."

Massachusetts church leaders, while voicing disappointment over the appeals court decision, have declined to speculate what its impact might b e.