California v. LaRue/Concurrence Stewart

by Potter Stewart

[p119] MR. JUSTICE STEWART, concurring.

A State has broad power under the Twenty-first Amendment to specify the times, places, and circumstances where liquor may be dispensed within its borders. Seagram & Sons v. Hostetter, 384 U.S. 35; Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 330; Dept. of Revenue v. James Beam Co., 377 U.S. 341, 344, 346; California v. Washington, 358 U.S. 64; Ziffrin, Inc. v. Reeves, 308 U.S. 132; Mahoney v. Joseph Triner Corp., 304 U.S. 401; State Board v. Young's Market Co., 299 U.S. 59. I should suppose, therefore, that nobody would question the power of California to prevent the sale of liquor by the drink in places where food is not served, or where dancing is permitted, or where gasoline is sold. But here California has provided that liquor by the drink shall not be sold in places where certain grossly sexual exhibitions are performed; and that action by the State, say the appellees, violates the First and Fourteenth Amendments. I cannot agree.

Every State is prohibited by these same Amendments from invading the freedom of the press and from [p120] impinging upon the free exercise of religion. But does this mean that a State cannot provide that liquor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the State would not thereby be interfering with the First Amendment activities of the church or the First Amendment business of the bookstore. It would simply be controlling the distribution of liquor, as it has every right to do under the Twenty-first Amendment. On the same premise, I cannot see how the liquor regulations now before us can be held, on their face, to violate the First and Fourteenth Amendments.^[1]

It is upon this constitutional understanding that I join the opinion and judgment of the Court.

Notes

1. This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See Wisconsin v. Constantineau, 400 U.S. 433; Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 329-334; Dept. of Revenue v. James Beam Co., 377 U.S. 341.