SUNDAY CLOSING LAWS

The first compulsory Sunday observance law in what is now the United States was promulgated in Virginia in 1610. It made absence from church services punishable by death for the third offense. Although there is no record of any person suffering the death penalty, lesser penalties, including whipping, were in effect in all the colonies and were continued after independence. Implicit constitutional recognition of Sunday observance is found in Article I, section 7, which excepts Sundays from the ten days wherein the President is required to exercise his veto of bills adopted by Congress.

Before the Supreme Court ruled that the first amendment was applicable to the states, it held, in Hennington v. Georgia (1896), that Georgia had not unconstitutionally burdened interstate commerce by regulating the movement of freight trains on Sundays. Four years later, it held, in Petit v. Minnesota (1900), that the state had not denied due process in refusing to classify barbering as an act of necessity or charity that could legally be performed on Sundays.

In 1961, after the Court had ruled the First Amendment applicable to the states, it considered the constitutionality of three state Sunday closing laws under that Amendment in four cases, known collectively as the Sunday Closing Law Cases. Two, McGowan v. Maryland and Two Guys from Harrison-Allentown, Inc. v. McGinley, concerned owners of highway discount stores that were open for business seven days a week. The other two, Gallagher v. Crown Kosher Super Market and Braunfeld v. Brown, involved stores owned by Orthodox Jews, who, by reason of religious convictions, abstained from all business activities on Saturdays.

In these cases the statutes were challenged on three principal grounds: that the laws violated the ban on the establishment of religion; that the statutes' crazy-quilt pattern of exemptions was arbitrary, constituting a denial of due process and the equal protection of the laws (for example, in one of the states it was legal to sell fish and food stuffs wholesale, but not at retail; in another, merchandise customarily sold at beaches and amusement parks might be sold there, but not elsewhere); that, at least in respect to Jews, Seventh-Day Adventists, and others whose religions required rest on Saturday, the laws violated the constitutional protection of religious liberty by making it economically difficult if not impossible for them to observe their own Sabbath when their competitors operated six days each week.

In all four cases the Court upheld the constitutionality of the challenged laws, with all the prevailing opinions written by Chief Justice earl warren. He recognized that the laws challenged in these cases had been enacted in colonial times with the purpose of ensuring observance of the majoritarian Christian Sabbath as a religious obligation. However, he said, the religious origin of these statutes did not require their invalidation if their present purpose was secular.

Warren said that the modern purpose of the challenged statutes was to set aside a day for "rest, repose, relaxation, tranquillity"; the purpose was therefore secular rather than religious. The Maryland statutes, for example, permitted such Sunday activities as the operation of bathing beaches, amusement parks, and even pinball and slot machines, as well as the sale of alcoholic beverages and the performance of professional sports. That such exemptions are directly contrary to the religiosity of the Sabbath indicated clearly that the Sunday laws' present purpose was not religious.

Viewed as welfare legislation, the Sunday laws presented little constitutional difficulty. The Chief Justice noted in McGowan that numerous federal and state laws affecting public health, safety, conditions of labor, weekend diversion at parks and beaches, and cultural activities of various kinds, had long been upheld. To forbid a state from prescribing Sunday as a day of rest solely because centuries ago such laws had their genesis in religion would be a constitutional interpretation based on hostility to the public welfare rather than the separation of church and state.

The Court had more difficulty in sustaining laws applied against persons observing a day other than Sunday as their divinely ordained day of rest. Six Justices agreed that state legislatures, if they so elected, could constitutionally exempt Sabbatarians from complying with Sunday law restrictions, but the free exercise clause did not mandate that they do so. However, a majority of the Court could not agree upon one opinion to that effect. The Chief Justice, speaking for a plurality of four, noted that while the clause secured freedom to hold any belief, it did not forbid regulation of secular practices merely because some persons might suffer economically if they obeyed the dictates of their religion. Income tax laws, for example, did not violate the clause even though they limited the amount of deductions for religious contributions. If a state regulated conduct by a general law, the purpose and effect of which were to advance secular goals, its action was valid despite its indirect burden on the exercise of religion unless the purpose could practicably be otherwise accomplished. A sabbatarian exemption would be hard to enforce, and would interfere with the goal of providing a uniform day of rest that as far as possible eliminated the atmosphere of commercial activity. The laws thus did not violate the free exercise clause.

In thornton v. caldor, inc. (1985) the Court went even further. It ruled unconstitutional, under the effect aspect of the purpose-effect-entanglement test of constitutionality under the establishment clause, a Connecticut law that accorded employees an absolute right not to work on their chosen Sabbath.

Leo Pfeffer
(1986)