Larkin v. Grendel's Den
VOLOKH at mail.law.ucla.edu
Mon Aug 21 12:46:24 PDT 2000
Well, I thought about this -- but if this is indeed the linchpin of
the Court's rationale, then it seems pretty weak. After all, we know that a
lot of "zoning" these days is done through covenants, conditions, and
restrictions set up by private developers, and I'm pretty sure that this has
been done for many decades (cf. Shelley v. Kramer!), perhaps as many (or
more) than zoning itself. So while the government has traditionally done
zoning, a lot of private entities have done something very similar. Should
churches not be able to enforce CC&Rs, while other private property owners
Similarly, as to copyright and patent law, one can say that these
are traditionally private actions -- or subspecies of the traditionally
mostly public action of restricting publications and creating monopolies.
Trademark law, a traditionally private action -- or part of the
traditionally public action of regulation of business in the interest of
consumer protection. After all, copyright, patent, and trademark law, even
though they rely on private parties suing, ultimately work only because
private parties can get damages awards and injunctions.
Likewise (except perhaps as to the last sentence) for citizen's
arrests, which may not be performed by organizations, but are often
performed by agents of organizations, such as security guards working for a
variety of institutions (my very off-the-cuff guess is that many more
citizen's arrests are performed by security guards than just private
citizens). Traditionally private function of a citizen's arrest, or a
subspecies of the traditionally public function of arrests generally?
One could, of course, focus just on this particular law, and ask
whether it or things very much like it has been around for a long time. One
would then conclude that the Copyright and Patent Acts, trademark law, and
citizen's arrests are "traditional," but the specific Massachusetts law at
issue in Larkin is not. But does it really make sense to lock in the legal
system that way, barring the government from shifting from a more
publicly-enforced system of regulation to one that relies primarily on
private rights of actions?
I suppose Marty is right that this focus on traditional government
functions is not unprecedented; the state action doctrine does at times rely
on it. But given the mess that that corner of state action doctrine is
generally seen as being, this analogy is not flattering to the "traditional
government function" justification for Larkin v. Grendel's Den.
Finally, as to general applicability, it seems to me that the fact
that the law benefits only two groups, one of which is churches, makes it
not really generally applicable. If the law gave a veto to all schools,
public, private secular, and private religious, then I do think there would
be a big problem with denying religious schools the same veto power that the
other schools possess. Likewise if the law gave some sort of veto to all
local property owners.
> -----Original Message-----
> From: LoAndEd at AOL.COM [SMTP:LoAndEd at AOL.COM]
> Sent: Saturday, August 19, 2000 8:22 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Larkin v. Grendel's Den
> Your premise, Eugene, appears to be that the Court (inexplicably)
> the statute simply because it granted churches "completely discretionary,
> standardless powers" that could be "employed for explicitly religious
> But the linchpin of the decision was not that the power exercised by the
> church was "completely discretionary," but that it was delegated
> power. The Court couldn't have been clearer in this respect. For
> -- The zoning function "is traditionally a governmental task." 459 U.S.
> -- The delegation to churches was of "a power ordinarily vested in
> of government." Id. at 122.
> -- The statute "vest[ed] discretionary governmental powers in religious
> bodies." Id. at 123.
> -- A statute "delegating a governmental power to religious institutions,
> inescapably implicates the Establishment Clause." Id.
> -- "[A] joint exercise of legislative authority by Church and State."
> at 125.
> -- Noting the "entanglement implications of a statute vesting significant
> governmental authority in churches. This statute enmeshes churches in the
> exercise of substantial governmental powers contrary to our consistent
> interpretation of the Establishment Clause." Id. at 126.
> -- "The Framers did not set up a system of government in which important,
> discretionary governmental powers would be delegated to or shared with
> religious institutions." Id. at 127.
> -- "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
> processes of government.*" Id.
> Of course, this is reminiscent of the "hardest question in constitutional
> law" -- viz., the state action question. It wasn't a hard question in
> Larkin, however: the Court plainly (and understandably) was of the view
> zoning decisions, such as whether to grant liquor licenses, are
> quintessentially state action, which cannot be delegated to churches.
> This "power" thus is not at all analogous to the powers Eugene cites, such
> the power to "exclude people from one's property," and to assert a
> Eugene's third example, citizen's arrests, is puzzling. I'm not aware
> there's ever been a practice of permitting private *institutions* to
> persons; and if there were, then I think it would be unconstitutional to
> permit churches to do so, even pursuant to a "generally applicable" power
> By the way, the statute at issue in Larkin was awfully similar to the
> so-called "generally applicable" law that Eugene hypothesizes. The State
> vested "in the governing bodies of *all* schools, public or private, and
> churches, the power to prevent the issuance of liquor licenses for any
> premises within 500 feet of their institutions." And the Court
> declined to affirm the court of appeals' holding that an "explicit
> discrimination . . . provided an additional basis for its holding that 16C
> violates the Establishment Clause." 459 U.S. at 120.
> Marty Lederman
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