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High court test: churches' right to say no to nearby liquor sales

By George B. MerryStaff writer of The Christian Science Monitor / February 10, 1982



Boston

Liquor control measures in over half the nation's states and territories, from Maine to Guam, may be in jeopardy.

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It all hinges on the outcome of lengthy litigation now set to go before the US Supreme Court, probably in late April.

At issue is whether a church should have the power to keep liquor establishments out of its neighborhood. But in resolving the matter, the nine justices, who agreed to hear the case Jan. 11, could touch off debate on a much broader question about the power to restrict zoning.

In the dispute, which has moved through state and federal courts for more than a decade with differing results, owners of a Cambridge, Massachusetts, restaurant are challenging the state's ''church veto'' law as an unconstitutional delegation of governmental authority.

Under an earlier version of the law, in effect until 1970, Massachusetts had an outright ban on the sale of alcoholic beverages within a certain distance of a school or church. The current law, in effect, leaves the matter up to the various institutions on a license by license basis. If a school or church objects, for whatever reason, the application has to be denied.

Granting such absolute discretionary authority to any private party or group is a violation of the Constitution, according to Laurence H. Tribe of Harvard Law School. He also maintains that the special privilege conveyed to a church is in conflict with the separation of church and state clause of the First Amendment.

Professor Tribe will argue the case before the Supreme Court this spring. He has enlisted the support of the American Civil Liberties Union (ACLU), as well as various other groups, including the National Council of Churches.

As he views it, ''the need is to draw the line between churches active in politics and churches exercising governmental power, including economic regulation of the sale of a commodity over a broad geographic area.''

Tribe holds that it is appropriate for religious groups, like any individual or organization, to voice objections to a liquor license. But the decision must be made by governmental officials, not private interests.

The case the Supreme Court will hear involves an appeal from Massachusetts Attorney General Francis X. Bellotti of a three-judge federal appeals court ruling last July. That ruling struck down the law under which the Holy Cross Armenian Catholic Church, near historic Harvard Square in Cambridge, had blocked a restaurant's liquor licensing.

That decision overturned an earlier federal appeals court verdict upholding the statute, which in its turn had reversed an August 1980 ruling by a federal district court judge. Two weeks earlier, in the seesaw legal battle, the Massachusetts Supreme Judicial Court ruled unanimously in support of the statute's constitutionality.

While declining to speculate how the nation's highest court might rule, Gerald Caruso, the Bay State assistant attorney general handling the case, contends the veto law is not unconstitutional.

He notes that at least 30 other states and territories have measures on their books prohibiting or restricting liquor outlets within several hundred feet of a church or school. In all but eight instances the ban is outright. Optional veto power, similar to that of Massachusetts, is provided only in Arizona, Kentucky, Maine, Maryland, Missouri, New Jersey, Washington, and Guam.

So if the Supreme Court declares the Massachusetts law unconstitutional, identical laws elsewhere could be wiped out. And if such a decision were broad enough, it could, in the opinion of Professor Tribe and others, sweep aside statutes in other states that establish liquor-free zones around churches and schools.

Both sides in the continuing dispute anticipate a decision by the Supreme Court late in its current session, probably in June or early July.