Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JOHN P. LARKIN ET AL., Appellants, v. GRENDEL'S DEN, INC.

No. 81-878

October 4, 1982

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:03 o'clock p.m.

APPEARANCES:

GERALD J. CARUSO, ESQ., Assistant Attorney General of Massachusetts, Boston, Mass.; on behalf of the Appellants.

LAURENCE H. TRIBE, ESQ., Cambridge, Mass.; on behalf of the Appellee.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Larkin v. Grendel's Den.

Mr. Caruso, I think you may proceed whenever you're ready.

ORAL ARGUMENT OF GERALD J. CARUSO, ESQ., ON BEHALF OF THE APPELLANTS

MR. CARUSO: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court:

This case raises a question concerning the state's power to regulate alcoholic beverages. The state law at issue is Massachusetts General Law, Chapter 138, Section 16(c). That statute prohibits the issuance of a liquor license to any establishment located within 500 feet of a church or school if the church or school objects to the issuance of the license.

The Massachusetts Supreme Court addressed the issues presented here and upheld the constitutionality of the statute. The First Circuit Court of Appeals concurred in that ruling, but reversed itself in an en banc decision which is now the subject of this appeal.

The First Circuit ruled that Section 16(c) violates the establishment clause. In the First Circuit's view, the statute has the primary effect of advancing religion because it extends to churches but not to all similarly situated institutions a more than de minimis benefit.

In defense of the en banc decision, Grendel's advances an alternative rationale. In Grendel's view, the statute improperly delegates legislative power to churches and thereby violates the establishment clause.

The state contends that Section 16(c) embodies a legislative effort to accommodate competing interests and to control the placement of liquor licenses in Massachusetts. We also contend --

QUESTION: Mr. Caruso.

MR. CARUSO: Yes.

QUESTION: Could I ask you a question about the procedure followed by the Court of Appeals before you get anymore deeply into the merits?

MR. CARUSO: Sure.

QUESTION: As I understand it, the Plaintiffs, the Respondents here, asserted a couple of constitutional claims and a statutory antitrust claim in the district court, did they not?

MR. CARUSO: Yes, Your Honor.

QUESTION: And then all of those went up on appeal to the First Circuit?

MR. CARUSO: Yes. There were three claims that went up on appeal. Initially, the case was brought as applied and facially, I might point out. When it was filed in the district court, it was filed both as an as applied attack to the challenge and a facial challenge to the statute.

The district court, after Grendel's -- the Commonwealth moved to dismiss and asked the district court to abstain on the as applied section of the complaint, the district court denied our motion to dismiss, we then entered into an agreement of facts and contested claims with Grendel's. Those claims were due process, establishment clause, and equal protection, and the Sherman Act claim.

QUESTION: And all of those --

MR. CARUSO: All of that went up to the First Circuit.

QUESTION: Well, in view of all of our talking in our opinions about how at least this Court, and I think we've said other federal courts too, should first address statutory claims before they reach constitutional claims, isn't it a little odd that the First Circuit addressed constitutional claims and didn't resolve the statutory claim?

MR. CARUSO: Well, insofar as the statutory claim was the supremacy clause claim under the antitrust laws, Your Honor, I think the First Circuit -- I don't know why the First Circuit chose to proceed the way it did on the en banc review.

If the statutory claim was the antitrust action that Your Honor is concerned about, that we look at as a supremacy clause claim, on whether the statute should be struck down under the supremacy clause. That was the basis of Grendel's's claim. We defended against that prior to the Rice decision coming down, we defended against that by claiming that the Sherman state action exemption applied. The district court disagreed with that.

I don't know if I answered your question.

QUESTION: But the antitrust claim is still a live one as between these two parties, I take it?

MR. CARUSO: Yes. The antitrust claim is, as well as the as applied claim. Those two claims lay back in the district court ready for further adjudication.

QUESTION: But it wasn't as if the antitrust claim hadn't been appealed to the First Circuit. The First Circuit had it before it and simply chose not to address it.

MR. CARUSO: Yes, Your Honor. I should --

QUESTION: Not to dispose of it.

MR. CARUSO: I should also add, Your Honor, that the original panel of the First Circuit did address that claim. Judge Campbell in his decision upheld the district court's action holding, saying that the Sherman -- the state action exemption did not apply. The en banc panel did not address it.

QUESTION: The First Circuit said first of all that you weren't entitled to summary judgment on your antitrust claim.

MR. CARUSO: That's what the court said in essence, yes.

QUESTION: Mr. Caruso, I'm just curious. The initial panel decision was three Court of Appeals judges, wasn't it? And the en banc was also three?

MR. CARUSO: Yes, Your Honor.

QUESTION: How'd that happen?

MR. CARUSO: Well, the First Circuit, as you know, Your Honor, consists of four judges. The original panel was made up of Judge Campbell, Judge Coffin, and Judge Hoffman out of the Eastern District of Virginia.

QUESTION: Oh, I see, sitting by designation.

MR. CARUSO: Right. Now, when Grendel's applied for a rehearing en banc, petitioned for a rehearing en banc, Judge Briar recused himself because of my brother's participation in the case. Judge Briar taught at Harvard as well.

So that left Judge Barnes, Judge Coffin and Judge Campbell. They all voted to grant rehearing en banc. So it was the difference of one judge that changed the constitutional issues here, results.

QUESTION: Had the case remained on the statutory basis, would we be here now on this case?

MR. CARUSO: I'm sorry, Your Honor?

QUESTION: Had the case been resolved on the statutory grounds?

MR. CARUSO: Well, I think insofar as Grendel's was challenging our statute under the antitrust laws and essentially claiming that the federal court should strike down the statute because it violated the antitrust laws, I frankly, after this Court's decision in Rice v. Norman Williams, don't think that Grendel's claim is going to prevail there.

QUESTION: But in any even it's another constitutional issue.

MR. CARUSO: It is another constitutional issue and it is somewhere in this proceeding that we engage in. We think it's back in the district court. Of course, if this Court chose to uphold the en banc panel's decision, all that would be for nought anyway.

The state contends, as I said, that the statute embodies a legislative effort to accommodate competing interests and to control the location of liquor licenses in Massachusetts. We also contend that the statute is well within our broad Twenty-First Amendment police powers, and it neither advances religion nor creates an excessive entanglement with religion.

After briefly discussing the facts, we will direct our argument to three main points: First, the statute gives to churches only an incidental benefit, which does not advance religion; Second, the failure of the statute to include all institutions similar to churches and schools does not violate the establishment clause.

QUESTION: Does it not delegate to a religious institution a power that is perhaps thought to be a governmental power?

MR. CARUSO: No, it doesn't, Your Honor. That's the final argument. We will argue that Section 16(c) does not delegate legislative power to churches or schools. It simply permits them to waive an otherwise applicable zoning prohibition on the placement of liquor licenses.

QUESTION: Suppose the statute said that all liquor licenses in Massachusetts shall be controlled by a board consisting of the leader of the Catholic Church, the Protestant churches. You wouldn't buy that, would you?

MR. CARUSO: I would not buy that, Your Honor.

QUESTION: May I ask you the difference between that one and this one?

MR. CARUSO: Well, Your Honor, here this statute represents the legislature's judgment of the public interest.

QUESTION: So did the first one, I assumed.

MR. CARUSO: No, Your Honor. In that case the legislature really --

QUESTION: Well, my hypothetical is the state legislature passed it --

MR. CARUSO: The state legislature has given to churches in that case, or private persons for that matter, anyone, the power to decide and not decide whether or not a liquor license should issue. That is substantially different from this case.

QUESTION: Like what?

MR. CARUSO: Here the statute reads that no premises shall be licensed if the governing body of the church objects. Here there is a legislative prohibition which can be waived. It's a legislative protection for churches and schools, which can be waived. And there doesn't seem to be any dispute between the parties, laws which permit individuals to waive otherwise applicable zoning prohibitions do not delegate --

QUESTION: Well, assuming I understand why a church would not want a bar and grill in its neighborhood, how do I understand that a church wants a bar and grill next door? I mean, what does that promote, a situation where a church wants a bar and grill next door to the church? Now, what interest does that promote?

MR. CARUSO: Well, Your Honor, if I understand your question correctly, and I may not, I think if you look at the statute in the context of its historical development, you get a better flavor for what the legislature is promoting here.

The statute was initially active as a flat ban. It totally prohibited liquor licenses from being issued within 500 feet of a church or school. Subsequently the legislature amended the statute and permitted the issuance of a liquor license, but the license applicant had to go to the church and school and solicit the assent of the church or school.

Finally, in 1970 the legislature amended the statute further and permitted liquor licenses -- or relieved the applicant from soliciting the assent of churches and schools, and placed the burden of objection on the protected institutions.

So you see, Your Honor, what the legislature has done here is, the legislature has decided that churches and schools shall be protected with what we might call a zone of tranquility, but the legislature has also determined that if a church or school does not have any objection to a liquor license being within its 500-foot zone of tranquility that the legislature is not going to prohibit the license from being there any more.

QUESTION: How can you call it a zone of tranquility with 14 licensees in the zone?

MR. CARUSO: Your Honor, there's approximately 26 licensees in this zone.

QUESTION: How can you call it a zone of tranquility?

MR. CARUSO: Well, Your Honor, the purpose of the statute was twofold. The purpose of the statute was to protect churches and schools from liquor license establishments and the noise and dirt and abuse --

QUESTION: And as soon as one is established, why, that purpose has been frustrated.

MR. CARUSO: Well, yes, Your Honor, only in this extent. The second purpose of the statute was to help facilitate the issuance of liquor licenses. In 1954 when the statute was first passed, there were no liquor licenses in Harvard Square in 500 feet of whatever church existed there. Today the legislature --

QUESTION: Well, then there's been a change in legislative policy.

MR. CARUSO: Only to the extent --

QUESTION: You earlier seemed to be arguing that the three statutes were functionally equivalent. I think now you're saying they're quite different.

MR. CARUSO: I think they are functionally equivalent, Your Honor.

QUESTION: Well, hasn't there been a change in policy from one that said you can't have any to one that says you can have 26?

MR. CARUSO: Your Honor, only to the extent that the legislature now does not now --

QUESTION: The legislature says, we don't care, but if the church cares it can't open.

MR. CARUSO: No, I disagree with you, Your Honor. I think the legislative policy remains the same. Simply --

QUESTION: The same as when it prohibited them entirely? How can that be the same as having 26?

MR. CARUSO: Well, the legislature I think now believes that if a church does not have -- a church may not object to one, to a liquor license, especially in a congested area like Harvard Square, that's around the corner and up the street.

QUESTION: Well, I understand. But if you phrase it in terms of the church objecting, then you're saying the legislature doesn't have its own policy. It says, we'll let the church decide what it wants, and that's a pure delegation, isn't it?

MR. CARUSO: I think if the legislature had that policy it would have. But I don't think that's what happened here, and that's why the Massachusetts Supreme Judicial Court as it went through the history determined that the legislature -- the legislature's policy remained essentially the same.

I also might point out, Your Honor, that here we're dealing with a statewide statute. The statute applies not only to the Harvard Square area of Cambridge, Massachusetts, but it also applies to the Berkshire Hills and the Cape Cod and the islands off Massachusetts.

QUESTION: Mr. Attorney General, may a church exercise what you characterize as a waiver on a selective basis, so that it would allow a liquor store in one building and deny it in an adjacent building?

MR. CARUSO: That is --

QUESTION: That's permissible under the statute?

MR. CARUSO: That is possible, Your Honor.

QUESTION: And that could be done arbitrarily, with no reason, no standard prescribed by the legislature. Suppose one of the liquor stores was operated by a friend of the bishop and the other not?

MR. CARUSO: We would argue, Your Honor -- and this was why we asked that the district court abstain in this case. We would argue that in that case the person could seek relief, administrative or judicial, from the operation of the statute. We believe that the Supreme Judicial Court of Massachusetts and the ABCC will read into any improper motives -- will not permit improper motives in a pleaded and proved case.

This one here is a facial challenge. And it is correct, Your Honor, that the Massachusetts legislature does not require a reason by the church. However, the reason is presumed. The presumption is that the church is objecting for legitimate police and safety and health requirements.

QUESTION: What happens if the church only has bars that sell Irish whisky?

MR. CARUSO: If the church?

QUESTION: Only allows bars in its neighborhood that sell Irish whisky.

MR. CARUSO: I would rely back on my --

QUESTION: Well, I'm going from there to tequila.

MR. CARUSO: Sure.

QUESTION: So I mean, I can go anywhere I want to go.

MR. CARUSO: I would fall back on my position, Your Honor, that that case --

QUESTION: Why should I, as a legitimate businessman, have to go and ask a church whether I can do business?

MR. CARUSO: The option, Your Honor, was that you couldn't do business in that zone of protection at all because there was a legislative prohibition.

QUESTION: But that's not today. This is today. I just got the money today.

MR. CARUSO: What the legislature has done --

QUESTION: Now, don't leave out any of my points. I just got the money today and I want to open up a bar and a grill, and I've got to ask the church's permission.

MR. CARUSO: No, you don't, Your Honor. If you want to open up a bar and a grill near a church --

QUESTION: Yes.

MR. CARUSO: The legislature has decided that that is not a suitable site.

QUESTION: Oh, no. It said it's not a suitable site unless you get the permission of the church.

MR. CARUSO: I disagree, Your Honor.

QUESTION: Well, what did the state say?

MR. CARUSO: I think the legislature has determined that in proximity of a church or a school is not a suitable site for liquor establishments unless there's no good reason why the liquor establishment shouldn't be developed there. We're talking about geographic locations, Your Honor.

QUESTION: I'm talking about what the statute says. The statute says exactly what I said. I cannot open up my business in that area that's near the church without the permission of the church to tell me whether or not I can spend my money in my property.

MR. CARUSO: You can apply for a liquor license, Your Honor.

QUESTION: Will I get it without the permission of the church?

MR. CARUSO: If the church objects, you would not get it. Unless the church objected --

QUESTION: Then don't I have to get the permission of the church?

MR. CARUSO: Yes, Your Honor.

QUESTION: How do you distinguish that from giving the church, whatever church is picked out, the power to issue the license? How is it distinguishable?

MR. CARUSO: Well, Your Honor, once the site is established as being suitable, then the state remains the official determining body as to whether or not the liquor license would issue. The church is merely given an opportunity to waive a legislative prohibition.

And the statute, Your Honors, has to be viewed against the background, the traditional background in this country, of permitting abutters to waive legislative zoning protections. It must be viewed in that --

QUESTION: And is that true of all 26 other licensed establishments in this zone? Were they all establishments which made an application which the church could have objected to but did not?

MR. CARUSO: No, Your Honor. There are some that were licensed prior to the passage of the statute.

QUESTION: In 1954?

MR. CARUSO: In 1954. Some of them were licensed between 1954 and 1968, which means that the church mustn't have been there. And then others were licensed after. There were 14 that were licensed after the church.

QUESTION: 1968?

MR. CARUSO: Yes.

QUESTION: To which the church might have, but did not, object?

MR. CARUSO: Yes, Your Honor.

QUESTION: Do you think the Court of Appeals en banc held that a flat ban within 500 feet of any liquor establishments would be unconstitutional also?

MR. CARUSO: Yes, Your Honor. I think the en banc panel's decision would --

QUESTION: Which would make the consent issue irrelevant?

MR. CARUSO: Right, Your Honor.

QUESTION: Isn't the consent issue made pretty much irrelevant by cases like New Motor Vehicle Board of California v. Orrin Fox, where the Court says that almost any system of private or quasi-private law could be subject to the same objection? Court approval of an eviction, for example, becomes necessary only when the tenant protests his eviction, and he alone decides whether he'll protest.

MR. CARUSO: Yes, Your Honor. And the very next sentence, the Court cited to the Cusack case, which was a case earlier --

QUESTION: The opinion below also seems to me to read that even if a flat ban would be sustainable, this conditional -- or this consent, the consent provision, renders it unconstitutional. Do you think it's sort of an alternative holding?

MR. CARUSO: It's very difficult to say what the en banc panel was doing, Your Honor. It seems to me that the en banc panel said that if you give any benefit to a church and do not include enough other institutions, even a zoning benefit, then that zoning benefit will be unconstitutional.

QUESTION: Which has nothing to do with getting a consent.

MR. CARUSO: Right, Your Honor. We think that the en banc panel's decision was much too broad.

QUESTION: Incidentally, Mr. Caruso, don't many state statutes like this take the form of a flat ban?

MR. CARUSO: Yes, Your Honor.

QUESTION: And did you just suggest to my brother White that they'd be unconstitutional?

MR. CARUSO: Under the en banc panel decision, Your Honor.

QUESTION: That's what I was asking. They would invalidate that too, I think.

MR. CARUSO: Yes, Your Honor. I believe that under the en banc panel decision those flat bans would be unconstitutional.

QUESTION: Have they been tested in any states?

MR. CARUSO: Well, in many states -- every single court decision that we have found has upheld this type of statute.

QUESTION: Including all the flat bans?

MR. CARUSO: Including the flat bans and the consent provisions.

QUESTION: State.

MR. CARUSO: State courts. It's never been -- well, in the Fifth Circuit, Your Honor, the Fifth Circuit in Big Sandy versus city of --

QUESTION: It wouldn't be New Orleans?

MR. CARUSO: No, Your Honor.

QUESTION: Because they don't have any closing law down there. They serve liquor 24 hours a day, every day including Sunday.

MR. CARUSO: Your Honor, I've never been to New Orleans, so I defer to your knowledge on that.

(Laughter.)

QUESTION: Do you know whether the attacks on the flat ban statutes have been on establishment clause grounds?

MR. CARUSO: Yes, they have, Your Honor, consistently on establishment clause grounds. I should say, even when there's a consent provision the attacks have been on both establishment clause and delegation issues.

Mostly, the bans have been presumed, I think we can fairly say, constitutional. All commenters, all textbooks and Am.Jur., they all assume that these flat bans are constitutional, even though they don't contain enough other types of institutions.

And I might say, Your Honors, that with regard to the consent mechanism the cases seem to indicate that when the use is offensive then they don't -- they permit these types of consent mechanisms when the use is an offensive use or viewed as an offensive use. And you won't find many cases striking down these consent provisions dealing with liquor establishments.

However, when the use is one which is not considered offensive or would interfere with somebody else's property, those consent mechanisms are usually struck down.

QUESTION: Mr. Caruso, you don't make any argument that the Twenty-First Amendment supports you on the establishment clause?

MR. CARUSO: We do, Your Honor. In our view -- and in our brief we argue that the Twenty-First Amendment of course gives us broad power to determine where in our Commonwealth liquor will be distributed, and that we have --

QUESTION: But you don't argue that the Twenty-First Amendment makes this constitutional irrespective of the establishment clause?

MR. CARUSO: No. If there were an establishment clause problem, Your Honor, we would not defend against it with the Twenty-First Amendment. But we do believe that the Twenty-First Amendment in this case permits us to act in this way.

QUESTION: May I ask you one question. You mentioned cases holding that a consent mechanism is permissible if the use is an offensive use.

MR. CARUSO: Yes.

QUESTION: Are some of those cases -- do they sustain a consent mechanism where there have been some offensive uses within the area and then they have been permitted to object to an additional offensive use?

MR. CARUSO: To the best of my knowledge, Your Honor. But usually these cases are as applied cases. This one here is a facial challenge.

QUESTION: It was stipulated, wasn't it?

MR. CARUSO: It was stipulated as a facial challenge.

QUESTION: Wasn't it also stipulated there are a lot of other taverns in the area?

MR. CARUSO: Yes, it was, Your Honor.

QUESTION: So we do know what the facts are.

MR. CARUSO: We do know what the facts are, only to the extent that there are other liquor establishments in the area.

But most of these other cases --

QUESTION: But under the decision the consent mechanism is invalidated statewide in all situations.

MR. CARUSO: Right, Your Honor. That would be the effect.

QUESTION: That's the facial challenge.

MR. CARUSO: That's the facial challenge. It's not just applicable to Grendel's here. It's a statewide challenge to our licensing procedure.

QUESTION: Do you think we need to be stuck with a stipulation about some facial challenge?

MR. CARUSO: Well, I think so, Your Honor, because --

QUESTION: Why? Why? That's just making it a broader constitutional decision than necessary.

MR. CARUSO: Well, Your Honor, if you want to remand it back and let us have a trial on the as applied claims Grendel's makes, the Commonwealth may be willing to do that. But we entered into the stipulation believing that there would be a presumption --

QUESTION: Why should the district court be forced to make a facial -- to answer a facial challenge just by a stipulation, if it would be a much narrower decision if decided as applied?

MR. CARUSO: We asked the district court to abstain, Your Honor, from the as applied.

QUESTION: Well, but you stipulated that it was a facial --

MR. CARUSO: Following the motion to -- the denial of our motion to dismiss, we viewed it as we had no opportunity to get those as applied claims back into the state court, to see. I also asked the district court to certify a question over to the Supreme Judicial Court. We believed that we would stand a better -- we would not want the federal court to decide the as applied claim prior to a state court looking at the issue.

I would like to save a couple of minutes for rebuttal if I could. I thank you.

CHIEF JUSTICE BURGER: Mr. Tribe.

ORAL ARGUMENT OF LAURENCE H. TRIBE, ESQ. ON BEHALF OF APPELLEE

MR. TRIBE: Mr. Chief Justice, may it please the Court:

Let me begin by clarifying what I think are some possible confusions about the facial and as applied aspects of this case and about the Sherman Act. It I think was not really odd that the First Circuit in its en banc rehearing did not resolve the statutory claim first, because once the original panel of the First Circuit had held that Parker v. Brown was not a bar as a matter of law to what might ultimately become an as applied trial of our antitrust claims, there was no longer much dispute about that.

We were not pressing beyond the original complaint. We have not pressed a facial challenge to this law under the antitrust acts.

QUESTION: Do you think that's a permissible posture under our cases, to say that we have a statutory claim here but we're not going to press it right now, we're going to press our constitutional claim?

MR. TRIBE: Justice Rehnquist, I think it would be problematic if they were at the same level, if they were both facial claims. The reason it's permissible here is that we think there are very strong constitutional reasons, principally under the establishment clause, not to call Father Arkalian to the stand and begin inquiring into what the motives were for the denial of the liquor license in this case.

Indeed, we think that, as this Court did in the Lovell case, Lovell v. Griffin, and in other cases where the gravamen of the attack is to the sweeping and unaccountable nature of the power delegated, that it should, and that it was proper for the lower courts to, resolve the facial challenge first.

QUESTION: But do you find any authority in our cases for saying that in those circumstances you take the constitutional claim before you take the statutory claim?

MR. TRIBE: Well, as Justice White pointed out, there's a constitutional supremacy clause claim in any event. Edgar v. Mite last term is a case where this Court ultimately decided on constitutional, rather than statutory preemption grounds under the Williams Act.

QUESTION: That's still a supremacy clause.

MR. TRIBE: That's right. So there's no way of avoiding a constitutional issue here, isn't that right? That is, I take it the point is that even the antitrust --

QUESTION: It used to make a difference -- there used to be a difference in old three-judge court practice.

MR. TRIBE: That's right, under the Kessler.

QUESTION: But not here.

MR. TRIBE: And it seems to me that's clear here for the additional reason that --

QUESTION: Well, but if the Sherman Act applies there isn't any constitutional issue remaining. It's perfectly clear that if there's a violation of the Sherman Act then the supremacy clause requires that it be enforced.

MR. TRIBE: Yes. But Justice Stevens, I think as Justice White is suggesting, the Court hasn't treated the preemption ground --

QUESTION: But the doctrine of avoiding constitutional issues would be served by addressing the Sherman Act claim first.

MR. TRIBE: The Sherman Act claim here would not avoid the fundamental issue, which would still be before the Court.

QUESTION: If you won on the Sherman Act claim we would avoid the constitutional issue.

MR. TRIBE: Well, Your Honor, let me suggest why that's not quite true. To win on the Sherman Act claim, I think we would have to concede that the First Circuit's original panel decision that a facial Sherman Act attack is implausible here. We'd have to concede that there's a great deal in that.

To win on the Sherman Act claim, we would have to show that the church in this case was wielding its veto power as part of an anticompetitive scheme to benefit certain contributors. And it seems to me that whatever this Court might hold in Brown v. Socialist Workers Party, argued this morning, there's very good reason to believe that under its entanglement decisions an inquisition into the contributors of this church and the reason the veto was wielded in this case and not in others as to the other 14 licenses that have been granted in the last decade would pose such serious constitutional problems --

QUESTION: Well, did you allege a conspiracy between the church and the other licensees?

MR. TRIBE: There is an allegation in this case. That's what the Sherman Act claim is all about, and I hope the Court is not detained by it. The Sherman Act claim suggests that, as Justice Brandeis believed when he testified on this matter back in 1891, that the temptation to venal exercise of this kind of power --

QUESTION: Well, let me hold you up, because I'm not really familiar with the details of the allegation. Does the complaint filed by counsel for your client allege a conspiracy between the archbishop or the priest or whatever he is and the licensees in that community?:

MR. TRIBE: It alleges --

QUESTION: And if it is so alleged, why shouldn't that case be tried?

MR. TRIBE: Because in order to prove that, Your Honor, we would anticipate the other side would argue that the kind of evidence we would need is constitutionally --

QUESTION: You must have that evidence if you made that allegation.

MR. TRIBE: We have reason to believe it. But in order to probe it, in order to probe it in the way that would be necessary to ultimately succeed, we would have to overcome another constitutional obstacle, the obstacle that they suggest in their briefs when they argue that administrative assessment of the church's concerns -- this is at page 85 of the Attorney General's brief -- that administrative assessment of the church's concerns and of the reasons for the exercise of its veto would itself create such grave entanglement problems as to pose a constitutional obstacle.

QUESTION: Only that's administrative assessment. You're talking about judicial assessment.

MR. TRIBE: Well, but as this Court has held in cases such as Serbian Orthodox and others, either judicial or administrative assessment of the internal motives and workings of a religious body's decisionmaking process raises grave First Amendment problems.

QUESTION: Don't you need more than belief?

MR. TRIBE: But we're not asking this Court to act on the basis of --

QUESTION: You said all you have is belief. That's what you just said.

MR. TRIBE: To file the original complaint. But we are asking this Court, as we asked successfully the First Circuit, to rule that this law is void on its face, that its void on its face because --

QUESTION: But do you have a right to assert something on belief?

MR. TRIBE: On information and belief, yes, of course, Your Honor, and it was asserted on that basis. The belief is based on information that we think could be developed, but to which there may be constitutional --

QUESTION: Information which you have?

MR. TRIBE: On the basis of what was known when the complaint was filed.

But I really think this is a distraction.

QUESTION: Well, it's a distraction largely because you've made it one, I think. The United States Attorney could certainly file a criminal action based on these same allegations of antitrust claims, and I can't imagine any serious constitutional objection to that case being tried on the facts that were developed.

MR. TRIBE: Your Honor, it seems to me that the same argument exactly could have been made in Eubank, where this Court facially invalidated an ordinance giving power to private parties to tell others what to do with their property, and instead, and instead the Court said that the illustrations of abuse are simply relevant to showing how facially void the law is.

The same argument could have been made in Lovell. The same argument could be made in the cases involving --

QUESTION: Was there a statutory claim in each of those cases?

MR. TRIBE: No. In each of those cases there was a claim, but nonetheless a narrower ground was available, namely an as applied invalidation.

QUESTION: But that was a choice between two constitutional grounds, at any rate.

MR. TRIBE: I think that's correct, Your Honor.

QUESTION: To what extent, Mr. Tribe, do you think the opinion of the first panel is any factor in this case? I got the impression that you thought it had some standing.

MR. TRIBE: No, I was only suggesting as a matter of understanding the evolution of the antitrust issue that one look at it. It's the other side --

QUESTION: As soon as an en banc was voted, that vacated the first opinion and it's a complete nullity, is it not?

MR. TRIBE: Yes, Mr. Chief Justice Burger.

QUESTION: The First Circuit doesn't have any other practice, does it?

MR. TRIBE: No. That's correct, that is the only opinion before this Court, is an opinion holding that this law is unconstitutional on its face. And I think in understanding that opinion it's necessary to recognize that the entanglement difficulties of assessing its validity as applied in a particular case both may have explained the court's reaching for a facial ground and avoiding the antitrust issue, which would require a trial with entanglement.

QUESTION: But the only antitrust issue I see stated in your amended complaint in this case was a preemption claim, that this statute was invalid --

MR. TRIBE: As applied.

QUESTION: -- on its face and as applied --

MR. TRIBE: Correct.

QUESTION: -- because its operation is preempted by the Sherman Act.

MR. TRIBE: That's correct, Your Honor.

QUESTION: That's what you say.

MR. TRIBE: And that is what we believe.

QUESTION: Yes. Well, but that is a constitutional issue the way it's posed.

MR. TRIBE: And therefore this Court's practice of avoiding constitutional issues would not suggest --

QUESTION: Mr. Tribe, that's not a fair reading of your complaint. In paragraph 12 you allege on information and belief that certain congregation members, because of their contributions to the parish or otherwise, exerted substantial influence on the governing board in order to protect themselves from competition. And that's a factual allegation, and I certainly don't see any establishment clause problem in putting on the witness stand some licensee and asking him if he did that.

What's the -- and you say that's more sensitive constitutionally than reaching the ultimate constitutional issue in the case?

MR. TRIBE: I would say that the inquiry into why the church exercised its veto power is a --

QUESTION: No, no. Those allegations talk about the other conspirators and their contributions and their attempt to influence the church; you say you couldn't try to prove that without --

MR. TRIBE: I don't say it's impossible, Mr. Justice Stevens. I'm only suggesting that we would --

QUESTION: You say there are greater constitutional issues at stake there than deciding the ultimate issue on the merits here, that's what you're saying.

QUESTION: Well, Mr. Tribe, the only relief you ask is to enjoin the operation of this statute. You didn't ask for any injunction against violating the Sherman Act or any damages for Sherman Act violation. The only time you mention the Sherman Act is in paragraph 20, where you say that it preempts the operation of this statute.

MR. TRIBE: We ask for a declaration of two kinds, Mr. Justice White. We ask for a declaration that the statute on its face and as applied violates the First and Fourteenth Amendments; and a declaration that when applied -- this is in paragraph 2 -- as applied to approve and effectuate these agreements, it would violate the Sherman Act.

QUESTION: And hence the statute may not operate.

MR. TRIBE: May not so operate. Hence the use of the veto power in this way must be enjoined or at least declared invalid.

Now, I don't deny, Justice Stevens, that it is possible -- and indeed, we originally drafted --

QUESTION: What's more, you do allege private agreements, as well as just the facial effect of the statute.

MR. TRIBE: We allege such agreements.

QUESTION: Right, okay.

MR. TRIBE: But if we --

QUESTION: So you disagree with Justice White's last comment?

MR. TRIBE: But it's -- the private agreements are -- let me explain, Justice Stevens.

QUESTION: I'm referring to paragraph 12 of the complaint, as well as paragraph 20.

MR. TRIBE: Correct.

QUESTION: 20 refers back to the private agreements alleged in 12.

MR. TRIBE: But those private agreements would have no effect on Grendel's Den in this case had they not led the church to exercise its veto power.

QUESTION: I understand.

MR. TRIBE: And the only relief we sought was not damages against the private parties. The only relief we sought was a declaration that the church's exercise of this veto, because of the underlying private agreements, could not be given effect by the state officials.

It was at that point that the state officials said, well, that's clearly an attempt to apply the Sherman Act to state action, and it's at that point that the private action becomes relevant. The state has not mandated these agreements. We therefore believe that at an as-applied trial it could be shown, within the confines of this Court's delimitation of the Parker v. Brown doctrine, that the reason the veto was exercised was anticompetitive agreements and therefore the state officials should not have given effect to the exercise.

But it would not be enough to prevail at that trial to show that there were some people who had unlawful agreements, because that didn't hurt Grendel's Den. To prevail we would have to inquire into the reason the veto was exercised. That inquiry would violate the establishment clause or at least would raise serious problems.

QUESTION: Why would it violate the establishment clause? Why did you deny this okay for this liquor license? Because -- the answer would either be, because we were persuaded by our contributors or, alternatively, because we didn't like all the drinking in the neighborhood. I don't know what the religious issue is.

MR. TRIBE: Well, I suppose if we had to rest with their answer, without pursuing the matter further through depositions and interrogatories, there'd be no problem. But ordinarily at such a trial one is able to pursue the matter further. And the very position the state has taken in this case is that the reason this absolute veto is so terrific is that it prevents one from piercing the shield of the church and going into the reasons.

QUESTION: Well, suppose we -- suppose we decided or suppose that you would even agree that there was no entanglement problem in adjudicating this case on an as-applied basis under the First Amendment. Now, should the Court be stuck with a stipulation between the parties nevertheless to decide it on its face?

Let's just suppose that it's claimed that the statute is invalid both on its face and as applied. Now, should the Court first get to the applied issue or on its face?

MR. TRIBE: Well, there are two -- I'm afraid that the only way I can answer that is to say that there are two levels of as-applied analysis here. One is to say that when the statute is applied to create a crazy-quilt like this, in which 14 licensees, some right around the corner, some across the street, get a liquor license and others don't, that that is a violation of the Constitution.

There's another kind of as-applied claim, which is to suggest that in this case the veto was applied either to exact contributions for the church or to advance the church's religious beliefs. Now, what we suggest is that either of those grounds is highly problematic, the second because of the entanglement involved in the inquiry into the motives of the church and the first because the invalidity of this blank check of absolute veto power that is handed to the church does not depend upon the facts of the particular case.

If the state wants, as the State of Massachusetts purports to want, to allow the views of churches to be weighed and considered in making judgments that accommodate religious needs, it has ample means for doing that. Indeed, the licensing authorities of Massachusetts are ready to listen to the claims of all neighboring abutters, all churches, all others, as to why they might not want liquor in the neighborhood or why they might want it in some instances and not in others.

QUESTION: Putting aside your stipulations in this case, are you representing to the Court your view that there was no way to decide this case without reaching constitutional issues? Is that your position?

MR. TRIBE: I don't believe that this Court can decide that the judgment -- well, let me see. I suppose there's no way to have resolved ultimately the claim that Grendel's wanted to advance, the claim that this veto should not be enforced, without reaching some constitutional issue.

QUESTION: As someone else has suggested to you, the framing of the issues in the case doesn't control the Court on what issue should be decided. Now, again, do you say there was no way the court could have avoided the constitutional issue?

MR. TRIBE: I think there is no way the court could have avoided it, however we framed the question, given the relief we sought, and surely the parties have the right to seek particular relief. The relief we sought was the removal of the burden of this veto. Now, in order to gain that relief we would have to have shown either that the delegation of veto power was unconstitutional, which we believe we have shown both under the due process clause and under the establishment clause, or that the way in which the veto was wielded in this particular case and the reasons for which it was wielded -- not just the private agreements that might have lain behind it, the reasons the veto was exercised -- violated our rights, either because of the Sherman Act or because of our rights under the Thirteenth and Fourteenth Amendments.

We don't believe that there is any way the case could have been framed to resolve that issue without reaching a constitutional question of entanglement and without reaching, even under the Sherman Act, the question of preemption. For that reason, we don't think that a constitutional issue has somehow been foisted upon the federal judiciary in this case. We think it's unavoidable in the factual posture of a veto having been exercised by a church.

QUESTION: Mr. Tribe, I'm embarrassed that I haven't examined the Sherman Act claim more closely before. But am I correct in noting that you didn't sue any of the alleged conspirators?

MR. TRIBE: That's correct.

QUESTION: That's a rather strange Sherman Act claim.

MR. TRIBE: Because our primary sense was not -- the complaint here really was that Grendel's Den was subject to the absolute discretion of one neighbor, the church, and that that was fundamentally unfair, that it was threatening to put them out of business, and that it was subjecting them to the kind of power that the framers never imagined that churches or other private parties would exercise.

Now, as it happened, we also thought if we could not establish that that fundamental proposition was correct and that it was facially void, that at that point we ought to have a right in the particular facts of this case, despite the constitutional entanglement problems, to see relief from this particular veto. Suing the particular individuals in this case, rather than seeking invalidation of the delegation of power, would not have given the relief sought, which was this liquor license, and in any event would have raised very difficult problems of trial, given the entanglement problems, of finding out why the church in fact exercised its veto.

And therefore the harm that we sought relief from, the denial of the license, was harm that could be removed only by seeking declaratory or injunctive relief against these state officials. The power that was exercised here, and I think this is important in light of Justice Rehnquist's question about New Motor v. Fox, was not just the power to trigger a public inquiry. In New Motor v. Fox, as the majority pointed out in Justice Brennan's opinion, the only effect of the refusal of the old franchisee to tolerate the incursion by a new franchisee was to open up a public hearing.

In this case the effect is far greater than that. The effect is absolutely and totally, as the State Supreme Court ruled and as the State Commissioners of the Alcoholic Beverage Control Commission said, absolutely to veto the license permanently. And during the ten years in which that veto has been exercised, others have been licensed.

Now, we don't think that it is incumbent upon Grendel's Den to engage in a problematic inquiry into the internal motives of the church, though if we had to at trial we would certainly try, in order to obtain relief under the rather simple proposition, which I think the framers would have found self-evident, that the owners of property cannot be told what to do with their property in the unfettered, unreviewable, unaccountable discretion of a single private body, namely a church.

QUESTION: Mr. Tribe, I'm still worried about the original proposition of alleging that some dealers will pay off somebody and get permission. Couldn't you just as easily say that the Alcoholic Beverage Control Board itself might take a little money and throw the act on that basis?

MR. TRIBE: But happily, Justice Marshall, there are laws against bribery. There are no laws against making contributions to a church in order to show that one is good-spirited and that one is not going to be a problematic neighbor. And the line between a payoff and a contribution --

QUESTION: It could be that you've never heard of anything like it before.

MR. TRIBE: Justice Brandeis feared that exactly this would happen.

QUESTION: In 18-what?

MR. TRIBE: In 1891.

QUESTION: Well, this is 1982.

MR. TRIBE: But the problem is an enduring one. It was his point that, although he was an ardent prohibitionist and believed in local zoning power, it was his belief that the temptation to shade things a little and make decisions on impermissible bases would be irresistible, but difficult to prove in particular cases. And he was talking about a veto power wielded by all neighbors, not a veto power wielded by one neighbor that happens to be a church dedicated to divine worship.

So that the abuse that led him, despite his belief about temperance and despite his belief about the importance of local zoning, the abuse that would inhere in this kind of governmental power being delegated to private parties was something that ought to be prevented by not giving this kind of veto power.

QUESTION: I agree, but I don't see the necessity for saying the reason is because they'll take money illegally.

MR. TRIBE: Well, Justice Marshall, that is the necessity to which we would be placed if Justice Rehnquist's suggestion that there ought to be an antitrust trial --

QUESTION: Well, count me out of that.

MR. TRIBE: That is not, Justice Marshall, by any means indispensable to our prevailing. What we are saying is that giving a property owner that happens to be a church a power of life and death over nearby establishments violates the Constitution.

It is the sort of power that in England they had for hundreds of years, finally got rid of in the Beer Act of 1830; the kind of power that the American colonies refused to give their established churches. It is the kind of power that Massachusetts didn't delegate when it had a flat ban on liquor in 1954.

QUESTION: Would you concede that a flat ban was constitutional?

MR. TRIBE: Well, happily, this case doesn't pose the issue.

QUESTION: That wasn't what I asked you.

MR. TRIBE: Well, if it were a very narrowly focused flat ban, it might pose problems. But I do not think the First Circuit suggested that it would be unconstitutional -- that is, if the state were to say that we don't believe that liquor and religion mix -- then the case would be much more like the decisions in LaRue and Bellanca saying that liquor and sex don't mix, where this Court has said that that's a permissible determination.

And it seems to me that the argument could nonetheless be made that when a branch of Alcoholics Anonymous has no veto power, that is when a branch of Alcoholics Anonymous is not surrounded by a liquor-free zone, when libraries and hospitals are not surrounded by liquor-free zones, to surround certain churches with those zones might still be preferential treatment. But that issue is not presented here.

The reason we have such a crazy-quilt in an area that, as Justice Stevens points out, is hardly tranquil and hardly sober, namely the business core of Harvard Square, the reason we have such a crazy-quilt is that this is not a flat ban, and because it's not a flat ban --

QUESTION: The reason you have a crazy-quilt in Harvard Square -- we don't have any information about whether or not there are crazy-quilts in the other parts of Massachusetts.

MR. TRIBE: That's right. Some of the quilts might not be as crazy. But the power itself --

QUESTION: Or crazy at all.

MR. TRIBE: Or crazy at all.

But the way to assure that those crazy-quilts be avoided is not to delegate unreviewable, unaccountable power to a single body whose unaccountability is even greater than that of other private owners, because in the case of other private owners there isn't even an arguable barrier under the establishment clause to probing and not just accepting the initial answer about what the motives were, probing the real motives.

Here there is a double bind --

QUESTION: Mr. Tribe, do you think the Court of Appeals meant to invalidate this statute wholly aside from the consent issue, if there was just a flat ban unconnected to --

MR. TRIBE: I think, Justice White, the opinion is ambiguous. I think they meant to say there are two infirmities and that they don't decide whether either standing alone would suffice. They say it's a benefit to a narrow class.

QUESTION: I take it your argument in your brief and here is primarily on the consent.

MR. TRIBE: That's right. And we don't think it matters whether you call it consent or waiver. We think frankly --

QUESTION: Well, I agree. But you're not urging a holding that flat bans are unconstitutional?

MR. TRIBE: No, because we think that, just as Justice Rehnquist would want to avoid the whole constitutional issue, certainly that more difficult constitutional issue should be avoided here.

What we're saying is that this Court has never upheld and should never uphold a provision whereby a single private owner, especially a church, has an unaccountable power over the livelihood and property of others.

We also believe that this Court should not subject --

QUESTION: Mr. Tribe, if you don't rely on the flat ban analogy, then your delegation argument, it seems to me, would be equally strong if the power to veto were given, say, to a bank or to the largest tavern in the neighborhood.

MR. TRIBE: That's right. Justice Stevens, we make this entirely separate delegation argument, which we think is strong enough to prevail whether it's a church or not. We think it is strengthened for two reasons because it's a church:

First, that violates the establishment clause principle of not giving special privileges to churches;

But second, insofar as one might otherwise cure a delegation by implying some power of review or revision of the sort that the State Supreme Court here refused to find in the earlier case that came before it, that ability to review the motives of the delegatee is drastically reduced when the power is delegated to a church. So in that sense and in that sense only, the claim is made much stronger by virtue of the religious character of the person to whom power is delegated.

QUESTION: I take it your argument, however, would invalidate the statute even if it gave -- if it was a very general consent provision.

MR. TRIBE: That's right.

QUESTION: As long as a church was included, it would be invalid?

MR. TRIBE: Under the establishment clause, I think that's right, Justice White. But that's why it becomes I think important, since someone might argue that it violates the free exercise clause to excise churches from that kind of power. That's why we take some solace from the fact that our argument with respect to the delegation of power generally does not depend on the fact that it's a church.

I want to stress that this Court has never upheld unilateral power in a single property owner to determine, without public review or accountability, how others may use their property. Certainly New Motor v. Fox was not such a case. In New Motor v. Fox, one way or the other during the time of the dispute between the old and the new franchisee someone would have to out of luck. This is a permanent deprivation as long as the church maintains its veto.

QUESTION: That thesis would avoid the establishment clause problem, wouldn't it?

MR. TRIBE: It would certainly avoid the establishment clause problem, and it would be a welcome opportunity for this Court to remind people that those decisions, although they may look old -- Eubank v. Richmond, 1912; Washington ex rel. Seattle v. Roberge, 1928 -- represent good law.

QUESTION: They not only look old, but they've been scarcely ever cited since they've been decided.

MR. TRIBE: Well, this Court cited them with approval in 1976 in Eastlake.

QUESTION: Once.

MR. TRIBE: That was once.

The reason I think they've rarely been cited is that most people have followed them and obeyed them. That is, the effrontery of a state in deciding that the livelihood of a restaurant in Harvard Square is going to depend on one property owner's whim is something that this Court has happily been spared in most cases.

This case is worse in a very special way. In all of those cases where the Court has gone in various ways depending on factual nuances, at least it could be said that a neighborhood of owners got to vote somehow on whether a particular use would be allowed or not. Never in this Court have we been confronted with a situation where one owner has a decisive veto power over an otherwise lawful activity.

And why someone who is subjected to that veto should have to go through a trial and psychoanalyze the reasons the veto was exercised, something that as a last resort we would be willing to do, before the obvious constitutional question is disposed of, is really beyond me. I don't think anything would be gained by it.

QUESTION: Mr. Tribe, do you think this Court's opinion in Cusack was wrong?

MR. TRIBE: Well, I think it was one of the more difficult cases in the area. I think it was wrongly decided, Justice O'Connor. But I think it's distinguishable in several ways.

QUESTION: Well, is it distinguishable if we apply the interpretation of Section 16(c) given it by the Massachusetts Supreme Judicial Court?

MR. TRIBE: Well, the Massachusetts Supreme Judicial Court interpreted the purposes of the waiver as -- of the current veto, which they describe specifically in their opinion as a veto. They said this is the delegation of a veto power at page 175A of the Jurisdictional Statement Appendix. They said its purpose is really no different from that of a waiver.

It seems to me that this Court's cases -- and it's not up to the State Supreme Court to interpret them -- establish that it's not the underlying purpose of the choice between waiver and veto that counts. What counts is that other private parties have been given the power to dispose of the fate of other private parties.

But even if Cusack were controlling and one said this is a waiver, there'd be a fundamental difference. In Cusack, the owners of over half the property in the area had to vote on the matter. It was a little like the referendum case in which the Chief Justice upheld spot zoning by the City of Eastlake.

This Court could well hold that the question of when property owners as a collectivity can be given a kind of local option over the entry of nonconforming uses, such as a billboard in a residential area, is a difficult and different question from the question when one property owner, not involved in Cusack or Roberge or Eubank, can unilaterally dispose of how others may use their property.

That question it seems to me can lead to only one answer if the due process clause is to mean rule of law rather than subjection to someone else's whim and will.

QUESTION: Well, but Mr. Tribe, would you suggest this statute could be cured by allowing the veto, but it be exercised by a vote among the 26 existing tavern owners?

MR. TRIBE: It would no longer be a veto. If there were a neighborhood referendum --

QUESTION: Well, the 26 tavern owners are the people allowed to vote in the referendum.

MR. TRIBE: Well, it would be at least a different case. I wouldn't recommend that the law be so amended --

QUESTION: I wouldn't think so.

MR. TRIBE: -- because I think it would pose other constitutional problems.

CHIEF JUSTICE BURGER: Mr. Tribe, your time has expired.

MR. TRIBE: Thank you very much.

CHIEF JUSTICE BURGER: Do you have anything further?

Thank you, gentlemen. The case is submitted.

(Whereupon, at 3:03 p.m., the case in the above-entitled matter was submitted.)