Religion and Prohibition

          During Prohibition there were exemptions for sacramental wine and other religious uses of alcohol. The Eighteenth Amendment, which took effect in 1920, doesn't say anything about those exemptions. It just says that the manufacture, sale or transportation of intoxicating liquors within the United States is banned. It was federal legislation that exempted religious uses from the laws. When law and religion people talk about Prohibition and exemptions for sacramental wine, they usually say "of course" there were exemptions for sacramental wines. Even Justice David Souter, one of the strictest separationists between church and state to sit on the Supreme Court, wrote that [w]ithout an exemption for sacramental wine, Prohibition may fail the test of religion neutrality and therefore violate free exercise. I had unthinkingly accepted the exemption as well.

          Then I got to Chapter 12 of Daniel Okrent's interesting book, Last Call: The Rise and Fall of Prohibition. Chapter after chapter left the reader feeling sorry for all the people who lost their beer and wine and hard liquor, the vintners in California who tore up their grapes, and maybe even some of the saloon owners. Then I read about Georges Latour, a Catholic Frenchman who moved to California to produced wine in the Napa Valley. Latour was fortunate enough to corner the Catholic sacramental wine market. Okrent writes that Latour chose to "look the other way" whenever his wine was diverted from its legal uses. "When a priest took receipt of an order for, say, 120 gallons of Beaulieu (a not uncommon amount), he suddenly had an inventory of 46,000 communion sips, more or less--or perhaps, 10,000 communion sips, with nearly a hundred gallons set aside for members of the congregation. Sometimes the wine didn't even leave the rectory. In 1932, six cases of Beaulieu's best were shipped to Chicago expressly for the use of Cardinal George Mundelein." 

         Catholics were not the only ones to benefit, because Latour also produced kosher wine. Catholicism has a very official hierarchy, and the bishops had to approve purchases for the priests. In Judaism, however, any rabbi could show a list of congregants and get alcohol for them. The numbers of Jewish congregation members increased dramatically and the names of the dead were added to their enrollment lists. Some rabbis opened "wine stores" where customers signed up for membership as they bought their wine. "There were rabbis who dealt in sacramental champagne, sacramental creme de menthe, sacramental brandy, and various other liquors utterly unconnected to any aspect of Jewish religious practices."

          The First Amendment prevents the courts from investigating many religious claims, and so "any man who dressed in solemn black, possessed a Jewish cast of countenance, and wore a beard was automatically a rabbi," even Rabbis Patrick Houlihan and James Maguire.  

          Many constitutional law scholars continue to argue that the First Amendment requires exemptions from laws for religious believers. Last Call reminded me that the most famous religious exemption from a neutral law of general applicability encouraged people to join churches (so they would get their drink), abetted fake entry into the ministry, gave clergy like the Cardinal special benefits for themselves, and gave the churches more power to recruit new members and to help those members violate the law. 

          So don't assume that religions always deserve exemptions from the law. The case of Prohibition suggests otherwise.