If downtown’s Replay Lounge is to have a prayer of staying in business after tonight, it must first get past city regulations that give churches preference in deciding where Lawrence bars can operate.

Officials say the community has an interest in protecting churches from the harmful effects of alcohol. But at least one critic says Lawrence’s code violates the U.S. Constitution.

“For city code to specify that a church may control business or property rights, in my opinion and the opinion of many others, is that that is a clear violation of the First Amendment,” said Marion Lynn, owner of the Pretentious Cow, a downtown Lawrence business that does not sell alcohol.

Assistant City Manager Dave Corliss disagreed.

“It’s not that the school or church is making the decision,” Corliss said Monday. “The commission can weigh that as they deem fit. The church or school doesn’t have a vote or a veto, but they do have a voice.”

The First Amendment stipulates that Congress shall make “no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That’s generally been understood to indicate that church and state shouldn’t be allowed to meddle in each other’s affairs.

Recent tests

The codes and practices of the City Commission, however, indicate that a church’s voice carries extra weight in some decisions.

Lawrence ordinances generally prohibit the sale of alcohol within 400 feet of a church or a school. The City Commission can grant waivers from the requirement — but only after giving churches and schools 30 days to weigh in on the issue.

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“The primary reason for the distance ordinance was the desire for the community to protect those schools and places of worship from what can be harmful effect of alcohol,” Corliss said. “Many churches have, as an article of faith, concerns about the consumption of alcohol.”

Those rules have been tested in recent months. In the absence of official opposition from churches, commissioners granted waivers to Rick’s Place, the former Masonic Temple and Qdoba Mexican Grill.

Earlier this month, however, the Salvation Army at 10th and New Hampshire streets vocally opposed a cereal malt beverage license for PepperJax Grill, a restaurant planned to open across the street. Commissioners cited the church’s opposition as a key reason for the vote to deny PepperJax’s license.

Common restriction

Tonight, the Replay Lounge, 946 Mass., is applying for a similar waiver after its city-issued drinking establishment license was inadvertently allowed to lapse. The Salvation Army, a block away this time, is again opposed.

Rich Forney, the church’s administrator, said city codes weren’t unconstitutional, because the commission meetings are open to the entire public.

“How could it be unconstitutional?” he said. “I have no more control than any other citizen in the community. Everyone has an equal right to be heard.”

Replay officials have declined comment, but their attorney, Price Banks, sent the city a letter Monday pleading for the waiver to be granted.

According to the Kansas League of Municipalities, such restrictions on businesses that serve alcohol are common.

“Hundreds of cities in Kansas have similar ordinances,” said general counsel Sandy Jacquot.

Lynn remains skeptical.

“The fact that the ordinance sets churches as apart from other organizations, institutions or individuals indicates preferential treatment,” he said.

The commission will decide Replay Lounge’s fate tonight during its meeting that begins at 6:35 p.m. at City Hall, Sixth and Massachusetts streets.