*1 al. v. MARYLAND. McGOWAN et May 29, 1961. Argued 8, 1960. Decided No. 8. December *2 appellants. With the cause Harry argued Silbert Sidney Diener and A. Jerome brief were him on the Schlachman. Attorney Jones, Jr., Special Assistant Martin

John appellee. the cause for argued Maryland, General Attorney Sybert, Ferdinand was C. him on the brief With ' General. opinion delivered Mr. Justice Warren Chief the Court. va- in this case concern constitutional issues commonly known statutes,1 criminal

lidity Maryland These Sunday Blue Laws. Closing Laws or *3 generally hereafter, noted exceptions to be statutes, with commercial activ- business and other proscribe labor, all are whether Sunday. questions presented ities on a bring statutes about within the the classifications the laws law, whether protection of equal denial of notice of give to fail to reasonable vague are so and process, violate due and therefore forbidden conduct an establishment respecting are laws whether the statutes the free exercise thereof. prohibiting or religion employees large of a discount Appellants are seven a in Anne Arundel highway store located on department Sunday indicted for the Maryland. They were County, binder, wax, a can of floor three-ring sale of a loose-leaf in toy submarine violation stapler staples, and and this sec- 27, Generally, Ann. Art. 521. Code, § of Md. Sunday sale of throughout State, prohibited, tion products, retail sale of tobacco except all merchandise milk, bread, fruits, gasoline, oils, greases, confectioneries, Code, entirety, statutes, in their are found in Md. Ann. These 90-106; 66C, 2B, (a), Art. 1967, 27, §§492-5340; Art. Art. §§28 (d). specifically (d), referred to hereafter Those sections §§ post, p. may Appendix opinion, to this be found in an and drugs medicines, newspapers periodicals. and Recently amended, excepts this now from the section also general prohibition the retail sale Anne Arundel County of all boating automobile and acces- foodstuffs, sories, hospital supplies toilet goods, flowers, It now provides any souvenirs. further retail County establishment not Anne Arundel which does employ may more than one than the owner person other operate on Sunday.

Although appellants only 521, were indicted under § properly order to consider several of the broad consti- tutional contentions, must body we examine the whole of Maryland Sunday Mary- laws. Several sections land particularly statutes are relevant evaluation presented. the issues Section 492 Md. Ann. Art. Code, 27, all persons any forbids doing bodily from work or labor on and forbids or permitting children servants work on that engage or to in fishing, hunting and pastimes unlawful or excepts recreations. The section all necessity works of charity. Section of Md. Code, Ann. 27, Art. disallows opening any or use of dancing saloon, opera bowling house, alley shop barber Sunday. However, exceptions addition to the noted above, Md. Ann. Art. Code, § exempts, operation Anne Arundel County, bath- ing beach, bathhouse, dancing saloon and amusement *4 park, and activities incident thereto and retail sales of merchandise sold or customarily at, to, incidental the operation of the occupations aforesaid and businesses. 90 of Md. Code, 2B, Section Ann. Art. makes generally unlawful the sale of beverages Sunday. alcoholic on However, this and section, immediately succeeding ones, provide various immunities for Sunday the sale of differ- ent kinds of alcoholic beverages, during at different hours day, by holding the vendors types different of licenses, in political different divisions of the particularly State — Art. County. Code,

in Md. Ann. Anne Arundel See (a). 2B, § statutory myriad concern a remaining sections

The cities counties, exceptions counties, for various districts Among activities the the throughout and towns State. sports on are such allowed certain areas basket- croquet, baseball, golf, tennis, bowling, football, boating, swimming, softball, ball, lacrosse, soccer, hockey, racing stock car skating, riding, horseback fishing, permitted immunized activities billiards. Other pool or play- group singing include regions in some of the State pic- of motion instruments; the exhibition ing of musical centers, picnic recreation dancing; operation tures; rinks and miniature swimming pools, skating grounds, hunting or taking oysters and the The golf courses. forbidden, shooting but game generally killing permitted gun clubs is by organized rod conducted of the subdivisions within county. In some one Sunday activities are sanctioned exempted State, commence day; others, they may not throughout in many, the activities early evening; afternoon or until late during the afternoon and may only be conducted not the allowed permit localities do evening. Certain yards activity on one hundred to be carried within held. being are church services where concerning certain regulations Local ordinances statutory scheme. supplement State’s limited activities machines, pin- example, slot County, In Anne Arundel Sunday. may played be bingo machines and ball at trial contended Among things, appellants other they were Maryland statutes under contrary Amendment for to the Fourteenth charged were Appel- opinion. this at the outset of the reasons stated dollars and each was fined five convicted and lants were affirmed, Appeals Court Maryland costs. *5 Md. 151 A. on 156; appeal brought 2d under 28 (2), probable jurisdiction. U. S. C. we noted § U. S. 959.

I. Appellants argue Maryland that the statutes violate “Equal Protection” of the Fourteenth Amend- Clause ment First, they on several counts. contend that concerning classifications contained the statutes which may may Sunday commodities not be sold on are without rational and substantial relation object to the legislation.2 Specifically, appellants allege that statutory exemptions Sunday for the sale of the mer- chandise arbitrary mentioned above render the statute they under Appellants which were convicted. further allege capricious 521 is the exemptions § because of operation for the of the various amusements that have been listed and because slot machines, pin-ball machines, bingo legalized are freely played Sunday. are

The standards under proposition which this is to be evaluated have been set forth many times this Court. Although precise no formula developed, has been Court has held that the Fourteenth permits Amendment scope States wide of discretion in enacting laws groups affect some differently citizens than others. The safeguard constitutional if only offended the classification rests on grounds wholly irrelevant the achievement of the State’s objective. legisla- State presumed tures are to have acted within their constitu- power despite tional fact that, practice, their laws 2 Companion arguments by appellants exceptions made are that the prohibition sale’s alleged purpose so undermine the as a relationship of rest as to bear no rational to it and thereby render the process; statutes violative of due the dis tinctions drawn the statutes are so unreasonable due as to violate process. *6 statutory A discrimination inequality. some

result may reasonably any if of facts aside state will not be set River Kotch v. Board it. See justify be conceived Comm’rs, Metropolitan Cas 552; S. Pilot U. Port Lindsley Brownell, 580; v. 294 U. S. ualty Ins. v. Co. Atchison, Co., T. & 61; S. Cas U. Natural Carbonic Matthews, 174 S. 96.3 F. R. U. S. Co. v. reasonably find legislature a could

It would seem that was exempted commodities the sale of the that populace or the necessary for the health of the either atmosphere of the of the recreational enhancement ride into which takes a day family a—that may for the automobile gasoline will need country the that those fruit; drink or fresh who pleasant find soft cream or some other item may the beach wish ice go to prefer normally people that some will alcoholic there; sold relaxation; to add to their beverages games of chance always be drug products should newspapers that public. to the available that appar- indication this

The is barren of record statutory does the ently exist, basis not reasonable that local tradition and custom invidious, are distinctions legislative call for this treatment. might rationally not 545, 552-553; S. Kotch Salsburg Maryland, v. 346 U. See recently we More declared: legislative perennial one, problem admit- “The classification is a may in the same be of ting of no definition. Evils field doctrinaire requiring remedies. Or proportions, different different dimensions and Tigner Texas, legislature may 141. Or the v. 310 U. S. think. so phase addressing may step time, itself to take one at reform legislative problem mind. which seems most acute to Examiners, may legislature Dental The Semler v. 294 U. S. 608. there, remedy neglecting the phase apply a one of one field and select Co., pro- A. L. American Sash F. 335 U. S. 538. v. others. goes Equal no further than the Protection Clause hibition Optical, Lee invidious discrimination.” Williamson S. 348 U. added.) (Emphasis Comm’rs, v. Board River Port Pilot supra. Like- wise, exemptions the fact these exist and deny operators some vendors and of rest and recreation contemplated by legislature does not render equal protection statutes violative of since there would appear many exemptions, to be valid reasons for these as stated and no them. above, dispel evidence to

Secondly, appellants statutory contend that arrangement permits only certain Anne Arundel County retailers to sell merchandise essential or cus- to, *7 tomarily sold or at, to, operation bathing incidental the beaches, parks contrary amusement et cetera is to the “Equal Protection” Clause it because discriminates unrea- sonably against Maryland retailers in other counties. But we have Equal the Protection Clause re- held equality lates to between persons such, rather than between uniformity areas territorial is not a prerequisite. constitutional particular With reference to the State of Maryland, we have noted that pre- the scription of different substantive offenses different counties is generally a matter for legislative discretion. We find no invidious Salsburg discrimination here. See Maryland, supra.

Thirdly, appellants contend that this same statutory provision, Art. 27, 509, § violates “Equal the Protection” Clause permits only because it certain merchants within Anne County (operators Arundel bathing beaches and amusement parks cetera) et to sell merchandise cus- tomarily sold at places these while forbidding by its sale other vendors of this merchandise, appellants' such as employer.4 Here it again, would seem that a legislature way Whether 509 is to be permit read this or is to be read to § by County sale of such merchandise all vendors Anne Arundel Maryland Appeals unnecessary

is unclear. The Court of found it question purposes reach argument, this of state law. For of this we accept by appellants. construction of 509 set forth § necessary commodities, reasonably find that these- could only should citizens, of its health recreation at the locations where Sunday on those vendors be sold immediately put likely are most to be the commodities seem to serve a determination would to use. Such time public at the same secure consuming and' retail of all other employees, appellants, rest for those like enforcement, problems In addition, establishments. like establishments, if retail large accrue which would open to remain permitted were appellants’ employer, merchandise restricted to the sale of the Sunday but were problems accru- far than question greater would be were only park if and amusement vendors ing beach has indication exempted. again, there been no Here On of this differentiation. the unreasonableness not that these statutes do say record we cannot us, before provide equal protection the laws.

II. is whether appellants question presented Another sale of retail exempts Art. 27, § at, inci- customarily sold or to, “merchandise essential *8 beaches, amusement bathing of” to, operation dental the County, in unconstitu- cetera Anne Arundel parks et of ordi- tionally vague. people believe that business We nary intelligence position appellants’ employer the exceptions encompassed are to know what would be able commercial ordinary a matter of statute either as investigation making or a reasonable knowledge by simply park amusement within nearby bathing at a beach or Harriss, 612, 347 U. S. county. United States v. See necessity there is no circumstances, 617-618. Under these determine meaning order to guess at the statute’s v. Connally it criminal. General conduct makes what Questions Co., 385, S. 391. concern- 269 U. Construction customarily appellants that the items sold were ing proof

429 sold or at, incidental to the operation of, beach bathing amusement park .or were not in Maryland raised Court of Appeals, they nor are Thus, raised here. we cannot Whitney consider the California, matter. v. 274 S.U. 357, 362-363.

III. The final questions for decision Mary- are whether the land Sunday Closing Laws conflict with the Federal Con- provisions stitution’s religious liberty. First, appel- lants contend here that applicable the statutes to Anne County Arundel guarantee violate the constitutional freedom of religion that pro- statutes’ effect is to hibit the religion free exercise of in contravention of the First made Amendment, applicable to the States appellants allege only Fourteenth Amendment.5 But economic injury they do themselves; allege any not infringement of religious their freedoms due to Sun- own day closing. In fact, appel- the record is silent as to what lants’ religious general beliefs are. Since the rule is that “a litigant may only rights assert his own constitutional Raines, United States immunities,” or v. 17, 22, 362 U. S. appellants standing we hold that have to raise this no Ullman, contention.6 Tileston v. 46. Fur- 44, 318 U. S. thermore, appellants allege since not specifically do infringe upon statutes beliefs of department present prospective patrons, store’s we Pennsyl Connecticut, Murdock v. 303; Cantwell v. S. 296, 310 U. Virginia vania, Board Education v. West State 105, 108; S. U. Education, Barnette, Everson v. Board 639; 624, 319 U. S. Education, 5; McCollum v. Board U. S. U. S. Mr. Justice Black is of the opinion appellants do have standing their claim is to raise this contention. He believes that Brown, post, expressed without merit for the reasons *9 Braunfeld Market, Super Gallagher Kosher v. Crown p. 599, 602-610, pp. at post, p. 617, at pp. 630-631. standing question to consider

have no occasion here Sisters, 510, U. S. 535-536. Society of Pierce v. of im- rights allegedly are persons whose Those ways to are effective by the statutes not without paired Alabama, 357 A. C. P. v. rights. Cf. N. A. assert these Jackson, 346 U. S. 449, 459-460; S. Barrows U. countervailing poli- weighty 257. no Appellants present principles. to our exception general to an cies here cause Raines, supra. See States v. United that the statutes violate appellants contend Secondly, church and state in separation of guarantee reli- respecting are an establishment of laws statutes applicable made contrary Amendment, First gion to the If pur- Amendment. by the Fourteenth to the States only pro- was to insure pose the “establishment” clause we then what religion, the “free exercise” of tection for standing raise appellants’ concerning have said above true to be appear the “free exercise” contention would who was the writings Madison, However, here. demonstrate the estab- architect, First Amendment’s its a was feared because of religion equally lishment civil political tyranny and subversion of tendencies Education, in Everson v. Board authority.7 Thus, taxpayer district to chal- supra, permitted the Court grounds, “establishment” state statute lenge, on district boards of education to reimburse authorized chil- parents transportation for fares of their paid public Appellants dren to both Catholic schools. concededly injury, here have suffered direct economic imposition due to the on them of the tenets of allegedly religion.8 find these circum- that, Christian We Religious Against Assess and Remonstrance Madison’s Memorial Rutledge’s 8, reprinted Justice ments, Appendix in the Mr. Par. Education, supra, p. at dissenting opinion Everson v. Board Education, S. where com Cf. Doremus v. Board U. plainants particular detriment. to show direct and economic failed *10 complain standing have to stances, appellants these an of respecting laws establishment the statutes are religion. is appellants’ argument “establishment”

The essence of day predominant the Sunday the Sabbath of is stoppage Christian that the of the enforced sects; purpose church day encourage of labor on that is to facilitate and attendance; purpose setting Sunday that the of of is people religion universal rest to induce with no or join pre- the people marginal religious with beliefs to dominant sects; purpose Christian that the of the atmos- phere tranquility by Sunday closing of created aid the conduct of church and religious services observance day. of In the sacred their substantiating “establish- ment” argument, appellants rely on of wording present Maryland statutes, on earlier versions of the cur- rent Sunday prior laws on judicial characterizations Maryland these laws Court Al- Appeals. though only the constitutionality of § the section under which appellants have convicted, been is immedi- ately before us in this litigation, inquiry history into the Sunday Closing in Laws our addition country, an examination Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether Maryland Sunday law in question is one an respecting establishment of religion. There is no dispute that original laws which dealt with Sunday labor were motivated religious forces. But what we must decide is whether present Sunday legislation, having undergone changes extensive from the earliest forms, still retains its religious character.

Sunday Closing go Laws far back into American history, having been brought to the colonies with a background of English legislation dating century. thirteenth In 1237, Henry III forbade the frequenting markets on was staple at the wools showing

Sunday; pro Henry IV 1354; III by Edward banned Henry Sunday; games unlawful playing hibited and, in 1444 churchyards fairs proscribed VI markets and all fairs and unlawful later, made years four VI merchandise; Edward any goods showings all *11 injunctions in Sunday bodily labor several disallowed Sunday and century; sports various mid-sixteenth the Lewis, I. in 1625 Charles were restricted amusements 82-108; John History Sunday Legislation, A Critical State, The and Separation and Church Yost, son the and the to the time of Revolution law of the colonies II, in laws the States was Charles Sunday basis of the provided, part: It in (1677). c. 7 holy and keeping the observation “For better Sunday: be it commonly called day, the Lord’s and in force . . . all the laws enacted enacted that repair concerning day, observation of the and the thereon, in ing carefully put execu to the church be every persons all and and tion; person and that them upon every day apply shall Lord’s whatsoever by exercising the same, observation of selves in and piety the duties of true themselves thereon privately; and trades religion, publicly no man, workman, laborer, person or other artificer, any worldly do or exercise labor or whatsoever, shall upon ordinary callings business or work of their day, any part (works necessity or thereof Lord’s . charity excepted); person . . and that no only persons publicly cry, forth, or whatsoever shall show merchandise, wares, fruit, herbs, or for sale expose chattels, whatsoever, upon or Lord’s goods, day, added.) . . .” any part (Emphasis thereof. subsequent English this are statutes cited and discussed in op. cit., supra, Lewis, pp. 111-142. of that of language, and the above

Observation of English clearly reveals prior mandates, church. of the established legislation was aid soon Sunday restrictions arose The American colonial Colony Plymouth Starting after settlement. sports, unnecessary travelling, work, proscribed servile day and beverages on the Lord’s alcoholic and the sale of Massa- The concerning laws church attendance. enacted and New Haven Bay and the Connecticut Colony chusetts earlier some even prohibitions, similar Colonies enacted orientation century. religious the seventeenth apparent. For exam- equally was of the colonial statutes “And began, Bay Massachusetts instruction ple, a 1629 be celebrated may to the end the Sabbath A activ- spoke 1653 enactment manner. ...” God, things tend much to the dishonor ities “which holy his religion, profanation reproach put whereof sometimes Sabbath, the sanctification *12 of . . .” respecting the service God. immediately all duties at particularly cit., 160-195, at op. supra, pp. Lewis, and, after the Revolution persevered 169.10 These laws adoption, the First Amendment’s at the time of about restricting Sun- had of some sort each the colonies laws of 739-740; L. day note, 729-730, 73 Harv. Rev. labor. See cit., pp. 222-223. Yost, supra, at op. Johnson and laws, of origin these despite strongly But, nonreligious century, eighteenth beginning before 10 provided: A York law 1695 New according worship his “Whereas, sincere the true and God neglected commandments, profaned and holy is often will and not many sojourners province, in this who do of the inhabitants disorderly them- day, manner accustom keep holy the but in a Lord’s working, shooting, fishing, sporting, playing, laboring, travel, selves to many using horse-racing, frequenting tippling houses and the other day, great upon pastimes, the Lord’s exercises and unlawful Id., enacted, faith, at holy be it etc.” Christian scandal of the 200-201.

434

arguments Sunday closing heard more began to be distinctly began the statutes lose some their totally religious flavor. In the middle Blackstone 1700’s, wrote, keeping day one as a holy, seven “[T]he time of relaxation as for public and refreshment well worship, of admirable service to a state considered merely as a civil institution. It humanizes, help society, conversation and the manners of the lower classes; degenerate which would otherwise into a sordid ferocity savage spirit; selfishness of it enables the industrious pursue occupation workman to his the ensu ing week with health and cheerfulness.” Bl. Comm. 63. A English dealing chimney sweeps, statute with c. III, providing Geo. addition to for their Sun day religious affairs, regulated also their hours of work. preamble to a 1679 Rhode Island enactment stated the reason Sunday employment for the ban on was that “persons being minded, presumed evill have to em ploy necessity servile than labor, requireth, more their servants. ...” Colony Records of the Island Rhode and Providence Plantations 31. The New York law day” 1788 omitted the term “Lord’s and substituted day commonly Sunday.” “the first of the week called Laws of N. Y. 1785-1788, changes 680: Similar marked Maryland statutes, discussed below. With the advent of the First Amendment, provisions the colonial requiring church repealed. Note, attendance were soon 73 Harv. Rev., L. at supra, pp. 729-730. recently, justifications

More further secular have been advanced for making Sunday rest, day when *13 people may recover from the labors of just the week passed may and physically mentally prepare for the week’s In England, during work to come. .the First aWar, investigating World committee the health condi- tions of “if reported munitions workers the maximum output any length is to be secured and maintained for of

435 time, weekly period of rest must be allowed. ... On grounds weekly period of economic and social alike this Sunday.” on provided rest best no Sunday closing legislation are proponents religious interests. longer exclusively representatives of supported by Jersey Sunday legislation Recent was New 73 Harv. L. groups associations, Note, labor and trade Sunday legislation 730-731; English Rev. modern was sup- promoted by the National Federation of Grocers Drapers’ National ported by Trade, Chamber Shop and the National Assist- Trade, Chamber of Union Parliamentary Debates, Commons 2158-2159. ants. 308 years, legislatures modified, state have Throughout Sunday statutes. As deleted from and added to their above, mentioned Jersey evidenced the New laws every Almost State changes commonplace. current are country presently type regula- our has some forty relatively comprehensive possess tion over 732-733; Note, 12 system. 73 Harv. L. Rev. Note, enforce Rutgers L. Rev. 506. Some of our States now Departments Labor, Sunday legislation through their Thus have Sun- g., (1952), § e. Code Ann. 64^5. S. C. wholly religious sanctions that day laws evolved from enacted. originally were Sunday closing laws is not

Moreover, litigation over appel- in the state may novel. of cases be found Scores Sunday enact- relating sundry phases late courts objections been there on Religious ments.12 have raised only parte Ex once, numerous occasions but sustained was Newman, and that decision over- (1858); 9 Cal. 502 Andrews, 678. parte Ex 18 Cal. years later, ruled three bearing in varying postures A number of cases substantial Committee, Ministry Munitions, Health of Munition Workers Sunday Labour, (1915), Report Memorandum No. 1 seq.; See cases collected at 50 Am. Jur. 802 et L. R. 2d A. seq. seq.; 813 et 57 A. L. R. 2d 975 et

436 Sunday legislation

on state have reached this Court.13 raising presented none the issues now have Although gained plenary hearing, language in some of these used cases further evidences evolution of laws Hing in Mr. Justice Field wrote Soon temporal statutes. Crowley, p. at 710: v. 113 U. S. 703, are setting day

“Laws aside as a of rest government not from upheld, right of the. legislate promotion religious observances, for the all right protect persons but from its from the and from physical moral debasement which comes uninterrupted always labor. have been Such laws especially and merciful laws, deemed beneficent poor dependent, and to the laborers our fac- workshops tories and rooms of our heated validity and their has been sustained cities; highest courts of the States.” Supreme Court, a member of the California Mr. While Newman, Justice Field dissented Ex at parte supra, pp. saying: 519-520, 528, requirement

“Its is a cessation from labor. In its enactment, Legislature given has the sanction of law to rule of conduct, which the entire civilized recognizes physical world as essential to the well-being society. moral Upon subject no there such a concurrence opinion, among philoso- phers, moralists and statesmen all nations, as on necessity periodical cessations from labor. One 13 703; Hennington See v. Hing Georgia, 113 U. S. v. Crowley, Soon 299; 164; 163 U. S. 177 Minnesota, v. U. S. Friedman v. New Petit 907; 802; S. York, U. v. S. U. Carolina, McGee North 933; Motors, Inc., Gassert, v. 354 U. S. Gundaker Central Grochowiak 47; 131; v. Pennsylvania, U. S. Ullner v. 358 U. S. Ohio, Kidd . Ohio, S.U. 132 ' in experience, founded rule, is the seven of sec- prohibition . . . by science. sustained *15 ground on the is advocated Sunday ular business on pro- advanced, labor is general it the welfare by well-being of physical and the moral tected, society promoted.” Harlan Mr. Justice approval by with quoted

This was also stated: who Hennington Georgia, supra, v. the because regulation “It none the less civil is pro- trains is freight of running day on which religious of under sense kept by many hibited disputed, as not be having, will duty. legislature and to the order promote laws to power to enact peo- and health comfort, happiness secure the fix the when discretion to it within its ple, was of State, limits of the works labor, all within Id., should cease.” charity excepted, necessity at 304. passages both of these Fuller cited Mr. Justice

And Chief Minnesota, supra. in Petit v. now here Maryland legislation turning to the

Before position what historical investigation an of attack, under to the occupied with reference Closing Laws have Everson undertaken, be Amendment should First Education, p. at supra, Board of surrounding happenings has considered the This Court “An act for Assembly’s enactment of Virginia General Statutes freedom,” Hening’s establishing religious sponsored written Thomas Jefferson Virginia 84, of inten- long and reflecting as best Madison, James particu- America, struggle freedom sive First Amendment’s larly in the search for the relevant Edu- in Everson v. Board meaning. opinions See cation, In before the bill’s supra. years nine Virginia’s Declaration Madison co-authored

passage, alia, are that “all men inter provided, Rights according religion, the free exercise entitled to equally 9 Hening’s Statutes conscience. ...” to the dictates of legis- had Sunday had Virginia 111-112. Virginia 109, century; in the seventeenth early lation since opinions matters “maintaining any penalizing laws church, or the exercis- jorbearing repair religion, added), (emphasis worship whatsoever” ing mode were freed from and all dissenters repealed, were support the established church. for the levied taxes remained; Id., prohibitions at 164. The labor with not to be inconsistent apparently, they were believed had newly Rights. Madison Declaration of enacted *16 expressly sought also have the Declaration condemn hope finally This existing establishment.14 was Virginia Free- Establishing Religious “A Bill for realized when was in 1785. In this same Madison passed year, dom” “A Bill Punish- presented Virginia legislators for in ing provided, part: . . . Breakers” which Sabbath “If found any person shall himself be or calling, at his own or other trade or labouring in shall his servants slaves employ apprentices, or ordinary it except other be labour, business, or or daily necessity, houshold offices of other work he ten necessity charity, shall forfeit sum of every every offence, deeming such shillings y servant, or apprentice, employed, slave so ever day he employed constituting shall be so a distinct offence.” during This law the following year became remained fought the time First that Madison for the Amendment in the It Congress. Virginia, was the law of and similar

14Brant, Virginia Madison, Revolutionist, James 245-246. 152 The Papers of Thomas Jefferson 555. States, laws were force other when Madison stated Virginia at the ratification convention:

“Happily states, they for the enjoy the utmost religion. freedom of . . . Fortunately for this com monwealth, majority of the people decidedly are against any exclusive establishment. I believe it to be so in the other states. ... I can appeal my uniform conduct on this subject, that I have warmly supported religious freedom.” In Virginia pronounced “An act for establishing religious freedom” as exposition “a true of the principles rights the bill of and constitution,” repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Vir ginia’s statute banning Sunday labor stood.17 Reynolds States, v. United

In 98 U. S. the Court heavily relied history on the Virginia bill. That case concerned a Mormon’s attack on a statute making bigamy a crime. The Court said:

“In connection with the case we are now consider- ing, it is a significant fact that on the 8th Decem- ber, 1788, after the passage of the act establishing religious freedom, and after the convention of Vir- ginia had recommended as an amendment to the Constitution of the United States the declaration *17 a bill of rights that ‘all men have an equal, natural, and right unalienable to the exercise of religion, free according to the dictates of conscience,’ legislature 16 (2d 1836) Elliot’s Debates ed. 330. State, In 78 Md. 510, 515, (1894), 28 A. Judefind Maryland Appeals Court stated, of thirty-six “Article of our Declara Rights guarantees tion of religious liberty; but the members of the distinguished body adopted that that supposed Constitution never they giving were a death blow to by inserting laws that Article.” of the statute substantially enacted

of that State as recited because, included, penalty death I., James whether doubted ‘it hath been in preamble, by laws of punishable be bigamy poligamy or From 691. Hening’s Stat. this Commonwealth.’ be there safely it said may this think day to we when the Union any in State of been time never has cog- against society, has an offence polygamy not been more with punishable courts and by civil nizable evidence, face all of this severity. In the or less the constitutional it impossible to believe pro- freedom was intended to guaranty religious important this most respect in legislation hibit Id., at 165. feature of social life.” Closing place bar, In the case at we find history enlightening First both Laws Amendment’s persuasive. But in of the case before we must dispose us, order Maryland statutes consider which the the standards of the First Here, are to measured. brief review be First background proves helpful. Amendment’s law “Congress Amendment states that shall make no . . respecting religion. an establishment of .” U. S. Const., I. was proposed Amend. The Amendment James 8, 1789, Repre- Madison on the House of June It in part: sentatives. then read, “The civil none rights abridged shall be account belief or nor worship, shall religion established, national be nor shall the full equal rights any manner, conscience be on any pretext, infringed.” (Emphasis added.) I Congress Annals of areWe told that Madison added the word “national” to meet scruples had an States then established church. 1 Stokes, Church State the United *18 committee, it was referred to being After States, 541. as 1789, acting August 15, House, on considered in deter- assistance the Whole. Some a Committee proscription Amendment’s scope of the mining the in that debate. be may found establishment which the committee, to House, its to the report In had been the Constitution of amendments to subject the language, insertion of recommended submitted, I Annals of by law.” be religion “no shall established if it read better Mr. “said would Congress Gerry 729. shall be established was, it that no doctrine apprehended Id., “said, at 730. Mr. Madison he law.” not be, Congress to that should meaning words observation of legal religion, establish a and enforce worship manner to God by law, compel it nor men . . . He believed contrary their conscience. or might pre-eminence, obtain a feared one sect

people religion to establish a which together, combine two Id., at 730-731. to conform.” they compel would others Representa- the House Amendment, passed it part: days later, read, tives nine reli- establishing make no “Congress shall law Senate, .” Records of the United States gion. . . Archives). 1A-C2 S. Nat. (U. September 9, 1789, reading, on passed

It the Senate part: establishing no law articles

“Congress shall make faith, worship.....” Ibid. a mode of the “real .opined object An early commentator any national ecclesi- prevent was ... the amendment hierarchy an establishment, give should astical government.” the national patronage exclusive Commentaries the Constitution United Story, form, its final Amendment, the First States, But, *19 congressional did not bar a simply enactment establish ing church; a it forbade all laws an estab respecting religion. lishment this Thus, given Court has interpretation Amendment a “broad ... light its history and the evils it designed was forever to sup press. . . .” Education, Everson v. Board at supra, pp. 14-15. It has found that the First and Fourteenth protection Amendments afford against religious estab lishment far more than merely extensive to a forbid national or state church. Thus, McCollum v. Board Education, 333 U. S. the Court held that action of board of education, permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms, to be contrary to the “Establishment” Clause. it is

However, equally true that the “Establishment” Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, Congress or state legislatures con clude that general welfare of society, wholly apart from religious considerations, demands such regula tion. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Bea son, 133 S. 333; Reynolds U. States, v. United supra. The same could be said of theft, fraud, etc., because those offenses proscribed were also in the Decalogue.

Thus, these broad principles have been set forth by this Court. Those cases dealing with specific prob- lems arising under the “Establishment” Clause which have reached this Court are few in number. The most exten- sive discussion of the “Establishment” Clause’s latitude Education, in Everson Board supra, is to be found at pp. 15-16: religion’

“The 'establishment of clause of the First Amendment means at least this: Neither a state nor up the Federal can set a church. Nei- Government pass religion, ther can laws which aid one aid all reli- one gions, prefer religion over another. Neither can force nor person go influence a to or remain away against from church his will or force him profess in any religion. belief or disbelief *20 person No can punished entertaining be for or professing religious disbeliefs, beliefs or for church any attendance or non-attendance. tax in No large amount, small, support or can be levied to any religious institutions, activities or whatever they may called, they may adopt be or whatever form practice to or religion. Neither a state nor teach the Federal can, openly secretly, par- Government or ticipate the affairs religious organizations of groups and vice versa. In Jefferson, the words of against the clause establishment religion by law separation was intended to erect 'a wall of between ” church and State.’ challenge authorizing repayment Under was statute parents transportation expenses of their children’s to to public through and Court, speaking Catholic schools. The undoubtedly recognized that “it is Mr. Justice Black, true helped get schools,” that children are to to church and possibility is even a some “[t]here children if might not be sent to the church schools parents compelled pay their children’s bus fares were pockets transportation public out of their own to a when Id., school paid would have the State.” at been purpose 17. But the Court found that the and effect of in question general the statute “public leg- was welfare id., protect it all school islation,” 16; at was id., 17; at “very trafile,” from the real hazards of children expenditure public transporta- funds for school that the any others, was like the religious schools or to tion, policemen to safe- expenditure public provide funds to general provide or to “such guard these same children protection, and fire government ordinary police services as public highways sewage disposal, connections for id., at 17-18.18 sidewalks,” Sunday Closing Laws

In of the evolution of our light more or less recent through centuries, and of their considerations, it is not difficult to emphasis upon secular administered, most presently discern that as written than at are of a secular rather them, least, relationship presently they and that no character, .bear words religion as those are used to establishment States. the Constitution of United Throughout century longer, this both the federal governments and state have oriented their activities improvement health, safety, very largely toward general well-being recreation and of our citizens. Nu- Rutledge, joined by Frankfurter, Mr. Justice Mr. Justice Mr. *21 dissenting Burton, lengthy and Mr. filed a Justice Jackson Justice opinion history the First Amendment’s was studied in detail. problem He defined the “establishment” as follows: religious “Compulsory upon early went out attendance exercises together process separating state, with the of church and forced religious observance of forms and ceremonies. Test oaths and reli- gious qualification things for office followed later. These none devoted great religious liberty bringing to our tradition of would think of back. religious today, apart inject training Hence to or exer- from efforts only public schools, cises and sectarian issues the serious sur- into viving maintaining complete permanent separation threat and religion power and civil which the First Amendment commands is of through taxing religious power support religion, use estab- of lishments, having religious a whatever or establishments foundation special religious Id., their (Emphasis at 44. form function.” added.) safety factors health, affecting public laws merous of of labor hours and conditions affecting laws industry, at and parks diversion week-end children, women and point now kinds, various cultural activities of beaches, and Sunday Closing for all. good life way toward part parcel and us, those before have become Laws,' like from their wholly apart governmental concern great this present purpose or connotations. original purposes day of a uniform provide of most of them is to and effect day Sunday, is citizens; day all the fact that this rest for sects, dominant for the Christian particular significance goals. its secular achieving from not bar the State does Sunday as prescribe cannot say that the States To ago centuries solely because purposes for these of rest a con- religion give would had their genesis such laws public wel- hostility to interpretation stitutional of church separation rather than one of mere fare State. review. statutes under Maryland reach the

nowWe Maryland of sections of major The title of the series 492-534C— Sunday closing with dealing §§ Code —Art. bodily work or Breaking”; proscribes 492§ “Sabbath persons and forbids day,” labor on the “Lord’s fishing cetera; et “profane day” by gaming, the Lord’s day.” As has 522 refers to as the “Sabbath § exempted Sunday above, many been mentioned may only in the various localities of the State activities evening; most during be conducted the afternoon late services, course, are held on Christian church morning early Sunday evening. Finally, pre- the allowed viously noted, permit certain localities do not within hundred Sunday activities to be carried on one yards being church where services are religious held. This is the evidence of totality *22 purpose may gleaned present be from the face of the its operative statute from effect. laws Maryland Sunday existing predecessors Maryland The first origin. undeniably religious

are in Sunday activities, enacted dealing with statute 1 Archives concerning Religion.” “An Act was entitled “profane it criminal to 244-247. It made Maryland Sunday by frequent day the Sabbath or Lords called disorderly by any uncivill or drunkennes or swearing, absolute when by working or recreation, Id., at 245. A 1692 require it.” necessity doth not Almighty God “An Act for the Service statute entitled within Religion Protestant and the Establishment of the 425-430, after Maryland Province,” this 13 Archives of Day importance keeping the Lord’s stating first concern with the holy expressing and sanctified and then throughout State, its observance breach of the. prohibition which was the obvious enacted labor 492.19 There was a re-enact- precursor present § “An Act Sanctifying keep- ment 1696 entitled for & Commonly Sunday.” called ing holy Day the Lord’s By Maryland Archives of 418-420. Sabbath- breaking present section of the statute assumed the form 492, omitting specific prohibition against Sunday § swearing patently motivated title. religiously Bacon, Maryland Laws of c. (1723), XVI. judicial early Maryland

There are statements in deci- support appellants’ sions which tend to In an position. involving calling delivery 1834 case a contract on Sun- or Person Persons within this Province shall work or do “[N]o bodily any Occupation upon any Day commonly Labour or Lords Sunday, wilfully permitt any called nor shall command or suffer or his or their or or aforesaid children Servants Slaves to work labour as (the necessity mercy allways Excepted) absolute works of Nor permitt any or shall suffer or of his her or their Children Servants any Authority Prophane the Slaves or other under their to abuse or Day by fowling drunkenness, Swearing Gaming, fishing, hunt Lords Id., ing Sports other Pastimes or Recreations whatsoever.” at 426.

447 that day, Maryland Appeals the Court of remarked “Ours day is a Christian and a as community, day apart set the day of is the of our rest, consecrated the resurrection Saviour, twenty-four ensuing and embraces the hours next Miles, midnight Saturday.” Kilgour the 6 and v. Gill approval cited with 268, language Johnson This was State, 510, 514, 405, Md. 28 A. 406 Judefind It (1894). was also stated there: “It is undoubtedly true that secular from rest employment Sunday tendency does have a to fos- ter and all encourage religion the Christian sects —of and denominations day that observe that rest —as ordinary from work and occupation many enables engage public worship probably who would not scarcely otherwise so. But it would be asked of a do Court, professes land, what to be a Christian declare a law unconstitutional because it requires bodily (except rest from labor on Sunday, works necessity thereby and and the charity,) promotes (cid:127) Christianity. religion cause of If is, Christian

incidentially otherwise, benefited or fostered by this having rest, undoubtedly is, as it there is all the more reason for the enforcement of laws that help to it. preserve generally Whilst Courts have Sunday sustained as regulations/ laws ‘civil their they decisions will have less if are weight no shown to be human.” accordance with divine law well as Id., A., at at 407. 515-516, that, But it should be throughout noted deci- Judefind sion, Maryland specifically rejected court the conten- religious liberty tion that the laws interfered with stated that the purpose provide laws’ was to the “advan- tages having weekly day physical ‘from a mere rest, ” Id., political standpoint.’ at at 406. A., operative

Considering the effect language longer we no find the blanket statutes, prohibition current contrary, To bodily labor. work or Sunday against appellants of Art. section find 521 § we tobaccos and sweets sale of permits violated, enumer- we have articles which long sundry list of and a permits Art. find 509 of § we above; ated parks beaches, amusement operation bathing *24 facilities; 28, permits 2B, Art. find that § we and similar strictly products beverages, of alcoholic Sunday sale are that Anne statutes; we told predecessor by forbidden Sunday Sunday bingo and County allows Arundel activities machines, machines and slot of pinball playing Maryland Sunday legis- by prior condemned generally charity are works of or not these Certainly, lation.20 shops that stipulation 521’s current necessity. Section Sunday may open on remain only employee with one pro- These religious purpose. awith does not coincide sports and various permit with those which visions, along clearly to be fashioned Sunday, on seem entertainments Sunday atmosphere of purpose providing for the enjoyment. Coupled repose and recreation, cheerfulness, against types work, other general proscription with is of relaxation the air of one we believe that religion. than one of rather existing simply laws are not Maryland their ante- religiously verbatim re-enactments of oriented Only appellation 492 retains the of “Lord’s § cedents. no recitation of day” longer section makes even “profan [ing] talk in terms of religious purpose. It does permit but sections the activities day,” the Lord’s other Maryland part: provided, A 1674 statute ordinary publicacon Keeper shall and after the from noe “[T]hat Day directly indirectly upon or Lords draw hereof nor the Sabbath Liquors or their strong permit suffer in house or sell nor or about Cards, Dice, ninepinn playing or any tipling gaming or att houses ...” 2 Archives of such exercises whatsoever. other unlawfull Maryland 414. thought Prior denunciation of

previously profane. to be con- gone. Contemporary drunkenness is now changes cern these statutes is evidenced the dozen with in 1959 and the recent enactment of made ' majority exceptions. of the Maryland relevant of the

Finally, pronouncements that the statutes’ Appeals dispel any argument Court of Maryland, In Hiller v. purpose religious. announced A. (1914), Md. the court had before it a prohibiting Sunday Baltimore ordinance baseball. The court said: respect judge the eminent chief said with

“What protection deal police enactments which with public health, safety apply of the morals and with equal force to those are concerned with community Sunday, peace, quiet order and of the recognized for these social conditions are well heads this police power. say Can the Court *25 relation to the ordinance has no real and substantial day as a peace quiet Sunday, and order and Id., City 393, A., in the of Baltimore?” at at rest, Williams, Levering 134 Md. 54- also v. See (1919). A. 178-179 59, 106 in the its decision Maryland And the court declared It is to com- legislative plan plain. instant case: “The is permitting only rest from activities pel day work, a State, v. necessary which are or recreational.” McGowan in the engaging at 151 A. at 159. After supra, p. 123, 2d, Amendment scrutiny close demanded of us when First Court’s issue, accept Supreme liberties are at we the State present purpose determination that the statutes’ day to set aside a of rest religion effect is not to aid but and recreation. all contentions. appellants’

But this does not answer disposal that the has other means at its are told State We that other courses purpose, secular accomplish its state aid to incidentally give remotely or not even would these stat are asked to hold we basis, On this religion. regu power to the State’s ground on the utes invalid may only be executed interest public late conduct infringe unnecessarily unduly or way that does not a First Amendment. provisions of upon Connecticut, 304-305. How supra, pp. at See Cantwell we believe may be, argument relevant this ever It is supportable. it is not on rests factual basis which provide simply to if interest were true that the State’s regulation a respite work, from periodic citizens a for its leaving day seven, everyone rest one demanding that suffice. individual, would day to the the choice merely provide purpose is not However, the State’s this, In addition stoppage. a work one-day-in-seven as a all others day apart one from seeks to set State day tranquility recreation and day rest, repose, —a community have the family and all members of the which which together, day on spend enjoy opportunity to from the and disassociation quiet relative there exists activities, everyday intensity of commercial are not friends and relatives who people may visit working days.21 during available ways different purpose in various at This has been articulated (Sunday Shops parliamentary the British times. The debates on particularly instructive. Trading Restriction), Bill in 1936 are sponsor the Bill stated: interfering to-day more and more

“I realise also that State controlling family liberty, family more with life and more and *26 the liberty, and above all to restrict this to restrict and were a Bill introducing responsible it. liberty family, not be for the I would necessary Bill which is to hope the House that it is a But I to show to liberty of thousands of our family and of hundreds the life secure holiday Sunday, be They right a on to the people. . . . have go parks or day out into the that and to able to rest from work-on liberty day. for which country That is into the on a summer a that to determine empowered is a State Obviously, this accomplish would not statute rest-one-day-in-seven general a cessation provide it would not that purpose; day a tranquility, atmosphere of special a activity, and relatives family or friends which all members plain it seems Furthermore, spend together. might provision a enforcing such involved problems that the enforcing than those more difficult exceedingly would be provision. common-day-of-rest day first that knowledge common it is Moreover, aas significance special has come to have of the week and religions all country. People day rest this give to liberty this Bill would they asking, is the which are and that Parliamentary Debates, 2157-2158. Commons them.” 308 stated: Another member unduly my family be family say life would man iet me that “As a Tuesday. The value on a any member had his disturbed if family is home on the same everybody in the at is that of a six-day working talking week day. about a is the use of What day on family his of rest would each have six members of a which Id,., day of the week?” at different revealing: are also Reports the International Labour Conferences rest-day as far as requires should the same “Social custom working family and the members of the same possible be accorded to orig- community It is a fact that working as a whole. class rest-day that the tradition inally religious motives determined by appears It subsequently maintained law. has been thus established in the same in the same area or rule that workers to be a universal rest-day with rest-day, coincides country the same and that have custom; the International by day tradition or established Rep. be maintained.” proposes this rule should Labour Office 1921, 127-128. Conference, 3d Sess. VII, Labour International practice usual that the most study standards shows “A of national days the week. collectively specified grant weekly rest time weekly at the same tendency rest is taken to ensure that This or custom has an tradition on the established all workers part in namely to take purpose, to enable the workers obvious social community special in the forms of recreation the life of the (1), Labour days.” Rep. International VII on certain are available 1956, 24. Conference, Sess. 39th *27 Sunday as a time for religion regard no

people with relatives, friends and for visiting for family activity, for passive for and active sleeping, late entertainments, in people, dining and the like. “Vast masses of our out, countryside the literally go out into fact, millions, in Par- afternoons the Summer. . . fine day is a liamentary Debates, Commons the fact apart irrelevant; from all others.22 The cause pur- enforcement exists. It would seem unrealistic for general detrimental to the poses perhaps welfare to choose a common of rest other than require State that which most select of their own accord. persons would reasons, Maryland For these we hold that the statutes respecting religion. are not laws an establishment of in The distinctions between the statutes case before in us and the state action Board Educa- McCollum v. tion, supra, in only finding case this Court a violation Clause, the “Establishment” lend further substantiation McCollum, In permitted to our conclusion. state action religious in public instruction buildings during school school required attending hours and students not religious instruction to remain their during classrooms time. The system Court found that this had the effect of coercing the children to attend religious classes; no such coercion to attend church present services is McCollum, at In situation bar. only alternative available to the nonattending students was to remain in their classrooms; open nonlaboring alternatives persons the instant case are far more diverse. In McCollum, there was cooperation direct between state officials and ministers; no such participa- direct tion exists under Maryland McCollum, In laws. tax- supported buildings were used to aid religion; provides Sunday exception Constitution itself for a in the days calculation of the presidential ten Const., veto. U. S. I,Art. 7.§ in aid of being tax monies are used case,

instant no religion. only clear case

Finally, we should make that this deals *28 constitutionality Maryland 521 of the stat- § with of Sunday legislation ute before us. do not hold that We if “Establishment” Clause it may not be violation of the its either purpose can be demonstrated that —evidenced with its legislation, conjunction on the face of the legislative history, operative or its effect—is to use coercive, power religion. the State’s to aid Accordingly, the decision

Affirmed. Me. opinion joined by of [For Frankfurter, Justice see,post, p. Mr. Justice Harlan, 459.] dissenting opinion of Mr. see [For Douglas, Justice post, p. 561.]

APPENDIX TO OPINION THE OF COURT.

Md. Ann. Art. Code, Breaking.

“Sabbath on J¡32. Working Sunday; Permitting “§ children or. — hunt, game, servants to fish, person etc.—No whatsoever any shall work or bodily day, do labor on the Lord’s com- monly person having called and children Sunday; no or wittingly willingly servants shall or or suffer command, any any of them to do manner of work or labor on the charity always day (works necessity Lord’s and excepted), permit any nor shall suffer or children or profane by gaming, fishing, the Lord’s day servants recreation; and fowling, hunting pastime or unlawful or and every person transgressing being this section hereof justice peace convicted before a of the shall forfeit five county.” of the dollars, applied to be the use etc., Beaches, groves, parks, picnic amusement “§ 509.— operate, County. in Anne Arundel shall be lawful —It occupations operating at, employed or be work dancing bathhouse, park, amusement bathing beach, souvenirs, selling any novelties, the sale or saloon, cus- to, or other merchandise essential or accessories, operation of the tomarily at, to, sold or incidental picnic at occupations businesses, retail, aforesaid rides, amusement amusement groves, amusements, games, hiring renting entertainments, shows and the devices, the first tables, chairs, umbrellas, beach boats, Anne Arun- week, commonly Sunday, called within this article are County, del §§ they prohibit repealed, in so far and to the extent employment of or operating working and/or *29 any bathing beach, bathhouse, in persons operation of at dancing saloon, selling the sale or park, amusement any merchandise, customarily retail essential to or sold of occupations the aforesaid operation or incidental to the of picnic groves, amusements, games, amuse- businesses, or devices, entertainments, shows, amusement rides, ment hiring renting boats, tables, chairs, and the and beach day commonly called umbrellas, week, on the first of the in Sunday, County.” Anne Arundel Sale, etc., on Sunday; excep- merchandise “§ 521.— tions.

“(a) prohibited;' excepted sales merchandise person sell, dispose of, articles. —No this State shall barter, in, give away any or deal or articles of merchan- Sunday, except may dise on sell and deliver retailers, who on said and tobacco, cigars, cigarettes, candy, sodas drinks, ice, soft ice ices and cream, confectionery, other fruits, milk, bread, gasoline, greases. oils and Additional articles in Anne Arundel “(b) excepted County; excepted. certain establishments Anne —In County, Arundel addition to the articles of merchandise deal barter, sell, mentioned, may retailers hereinbefore mer- articles following Sunday and deliver on in, detergents, and other soap cream, butter, eggs, : chandise or food food and all other meats, vegetables, disinfectants, auto- consumption, for human intended or prepared stuffs acces- fishing boating and parts, and accessories mobile toilet shrubs, and flowers natural artificial and sories, films, camera thermometers, hospital supplies, goods, paper goods, instruments, rubber surgical souvenirs, and all other medicines, medicines, patent drugs, goods, by a prescribed or pain relief of for the articles used in this sub- nothing however, provided, physician; any operation prevent construed to title shall be of which operation Sunday, retail establishment person, than one of more employment entail the does not proprietor. the owner or including not subsequent violation; and second Penalty “(c) violating Any person revocation offenses; of license.— be liable this section shall provisions of the any one having criminal in this State court to indictment fined shall be thereof upon conviction jurisdiction, dollars, fifty than twenty than nor more a sum of not less if offense, for the first court, the discretion section, the of this a second for violation convicted time less fined a sum not offending so shall be person persons for not imprisoned $500, than be $50 than nor more in the discretion days, than 30 than 10 nor more less *30 issued, any if was license, their court, his, and her or court; of said by judge null and void shall be declared person persons or lawful for such and it shall not be twelve months period of another license for the obtain a license be nor shall conviction, the time of such from said carry on by any person persons other or obtained so as elsewhere, person, premises business on the or if therein, or whatever convicted, any has interest aforesaid in case therefrom; and any profit shall derive whatever of being convicted more than twice for a violation of this such section, person persons or on each occasion shall be imprisoned thirty for not less than sixty nor more than days, and fined a sum than imposed not less double that person on such or persons on the last preceding convic- tion and ; his, her or if license, any their was shall issued, be declared null and void and court, no new license shall be issued to such person persons or for a period of years two from the conviction, anyone time of such nor to carry else to on said business wherein he in any- or she is wise interested, provided before for the second viola- tion provisions of this all section; the fines to be imposed under this section paid shall be to the State.

“(d) Apothecaries: sale newspapers and periodi- cals.—This section is apply not to apothecaries and apothecaries such may sell on drugs, medicines, and patent medicines as on days; week and this section shall not apply to the newspapers sale of periodicals. Keeping using

“§ or open dancing saloon, opera 522.— house, tenpin alley, barber alley saloon or ball Sun- day. shall not be keep open lawful to or any use danc- —It ing saloon, opera house, tenpin alley, barber saloon or ball alley within this State on the day, Sabbath com- monly called Sunday; any person or persons, or body politic or corporate, who shall violate provision of this section, or cause or knowingly permit the same to be violated person persons or her his, employ or its shall be liable to indictment in any court of this State having criminal jurisdiction, upon conviction thereof shall be fined a fifty sum not less than dollars nor more than one dollars, hundred the discretion of court, for the first and if offense; convicted a second time for a violation of section, person this or persons, body or politic corporate shall be fined a sum not less than one hundred nor more than five hundred dollars; and if a person natural shall imprisoned, be not less than ten nor *31 court; of the in the discretion thirty days more than this under or convictions any in the case of conviction person persons, or second, such subsequent section each occasion fined on shall be body politic corporate or her, them upon him, imposed at least double sum if a natural conviction; and preceding it on the last or thirty nor more less than not imprisoned shall be person, all fines court; of the in the discretion sixty days than paid to the State.” shall be this section under imposed to be Art. 2B. Code, Md. Ann. County. Arundel 28.—Anne

“§ Notwithstanding (1) “(a) Special licenses. — license for sale article, this no any provision other license com- the board of issued beverages alcoholic ‘special County (except Arundel for Anne missioners article) shall be this provided § for licenses’ holder or authorize the permit it to nor shall deemed in Anne Arundel beverages thereof to sell alcoholic as hereinafter Sundays, except 2 A. M. on County after provided. alco- the sale of a license for holding

“(2) Any person persons County (except in Anne Arundel beverages holic license, ‘Package or LT WP, LP, holding any BP, Class ‘special license,’ ‘six tavern license,’ sale Goods—off commissioners board of license licenses’) issued made upon application County, shall, Anne Arundel for board by the approval thereof licenses and as for new County, as Arundel for Anne commissioners of license be issued this (c) of article, 60 and 67 by §§ provided license,’ upon ‘special as a to be known a license herein. provided therefor of the fee payment shall authorize Sunday license’ ‘special “(3) Such kind, same beverages of the alcoholic thereof to sell holder alcoholic hours, as to limitations the same subject restric- thereunder, be sold beverages to content *32 license for such other govern provisions, tions by held to and beverages, issued of alcoholic sale Sunday. on each Sunday ‘special of such holder license/ any person shall be issued license’ ‘special No license of some beverage an alcoholic not hold does who commissioners of license the board issued class other County.” Anne Arundel for No (1) Bar and counter Sundays.—(a)

“§ sales. — 90— per- shall be B or license a Class C holding retail dealer a bar or counter at any beverage alcoholic to sell mitted Sunday. on County it shall in Anne Arundel Provided,

“(2) any consume serve, deliver sell, vend, lawful to be and/or in first, by law to be sold beverages permitted alcoholic districts eighth fourth, fifth, seventh second, third, any on at bar or counter County any Arundel of Anne is beverages permitted the sale of alcoholic on which law. in In the (1) jurisdictions

“(b) General restrictions. — it shall be unlawful applicable, which this subsection deliver, any licensed dealer to anyone for to sell or for beverages alcoholic dispose any otherwise give away or dealer selling or licensed Sunday. Any person on such disposing of giving away or otherwise delivering, guilty shall be beverages jurisdictions such shall be upon thereof, conviction and, of misdemeanor the first fifty ($50.00) dollars exceeding fined not shall be fined not succeeding offense and for each offense imprisoned exceeding ($100.00), one hundred dollars or be county thirty (30) days, for not more than jail court. imprisoned, both fined and the discretion of the and have “(2) applicable This subsection shall be Garrett, effect in Caroline, Carroll, Cecil, Dorchester, Queen Harford, Kent, Anne’s, Somerset, Talbot, Wash- ington, counties, provided Wicomico Worcester special it not to or affect licenses apply shall Class C issued under provisions of this it article, nor shall apply special Class C licenses issued Washington County for temporary use.”

Separate opinion of Mr. Frankfurter, whom Justice joins.† Mr. Justice Harlan

So deeply do the issues raised by these cases cut that it is not surprising that no one opinion wholly express can the views even of all the members of join the Court who in its result. Individual opinions in constitutional con troversies have been the practice throughout the Court’s *33 history.* Such expression of differences view or even in emphasis converging toward the same result makes for clarity of candor thereby and enhances the authority judicial of the process.

For me considerations are determinative here which call separate statement. The long history of Sunday legislation, so if decisive we are to view the statutes now opinion This applies Guys also to No. Two From Har 36,

† [Note: rison-Allentown, Inc., McGinley, Attorney, Lehigh v. County, District Pennsylvania, al., post, et p. 582; 67, No. Brown, et al. v. Braunfeld Commissioner Police Philadelphia, al., post, p. 599; et of of 11, Gallagher, No. Springfield, Police Massachusetts, et al. Chief of of Super v. Crown Kosher Market, Inc., al., post, p. et 617.] * pursuance “In my practice giving opinion an on all consti- questions, tutional I present my must views on this.” Mr. Justice Johnson, concurring, in Cherokee Georgia, Nation 1, v. 5 Pet. 20. Story, See Mr. dissenting, Justice in Briscoe v. Bank the Common- Kentucky, wealth 257, 329; Pet. Taney, Mr. Chief Justice dissenting, Rhode Massachusetts, Island 12 Pet. 752. And see Mr. Bradley, Legal Justice concurring, Cases, in the Tender Wall. 554: “I . . . should place feel that it was out of to add anything further subject on the great were it importance. not for its question On a involving constitutional powers government proper it is every aspect it, every bearing consideration upon it, presented, should be and that no member of the court should express hesitate to his views.” which is fur- than that perspective wider

attacked in cannot be outlook, limited necessarily nished our own instances or of isolated recital conveyed by partial from its history derives importance of events. The testimony the massive and fullness —from continuity controlling of statutes it bears to the evolution during three have, and to the forces which Sunday labor history least, at the years Anglo-American hundred them the them, made changed laws, those transmuted I complicated aspirations. of mixed and Since vehicle insights controllingly these statutes history find I am con- us, relevant to the constitutional issues before And I also history strained to set that forth detail. I at deem it incumbent to state how arrive concurrence without principal with conclusions Chief Justice's Education, 330 drawing on Everson v. Board U. S. I.

Because; long struggle colonial for disestablish- all their struggle men, ment —the to free whatever theological views, state-compelled obligation from acknowledge support state-favored faiths —made indisputably fundamental to our American culture the *34 principle that the belief as such religious enforcement legitimate is no concern of civil this Court government, has held the Fourteenth that Amendment embodies and applies against the States loosely freedoms that are indi- cated the not rigidly precise revealing phrase but “separation of church and state.” Illinois ex rel. McCol- lum Education, v. Board general 203. The U. S. principles of in- separation church-state were found to be cluded in in the Amendment’s Process view Due Clause of the meaning presuppositions society which the of our infuse concept “liberty” into the the protected clause. This is the imposed source of the limitations upon the States. To the extent that those limitations Amendment the First restrictions which are akin to the it is government, the central the action of places upon thought speech and the freedom of with because —as Connecticut, in Palko v. spoke Justice Cardozo Mr. the concerning say 319 — it is accurate S.U. nor establish must neither principle government that a rare aberrations religious belief, “With suppress in traced our truth can be recognition of pervasive Id., legal.” at political and history, McCollum, in Everson and opinions But several sufficiently S. make Clauson, and Zorach v. U. concept. self-defining “separation” clear that is not “ that the First Amendment greement, abstract, [A] between church separation to erect a designed was ‘wall a clash of views as to what preclude does not State/ v. Board Illinois ex rel. McCollum separates.” the wall Education, By its (concurring opinion). at 213 supra, comprehensive sense which religion nature, — in aspect an of human uses that word—is Constitution life of relates the profoundly and action which thought beliefs Religious in which he lives. man to the world traditionally institutions have pervade, religious postulate It is a virtually activity. all human regulated, in the First Amend life, specifically of American reflected that those alone, but not there ment to the Constitution as the needs continue, beliefs and institutions shall them, to to func people inspire shall longings exist, with innate wither, and to exert whatever tion, grow, upon may many contain their influences strength they and directions of conduct, men’s free of dictates cannot fur this freedom does not and However, state. insulation nish adherents of creeds entire As the state’s interest every obligation. from civic its concerns comprehensive, more the individual becomes overlap. State religion perforce and the concerns of of faith touch the same activities. codes and the dictates *35 462 views respective their good, human

Both aim at may they they may concur good for man of what reli- which leaves command conflict. No constitutional interplay. this of quality free can avoid gion which regulations enforce conduct Innumerable civil prohibitions religious canons. State harmonizes with adultery reinforce commands murder, theft in their coincidence regulations, Nor do such decalogue. equally the beliefs always support faith, with tenets forbidding usury civil laws religious all sects: witness the laws serve Because these enforcing monogamy. scope of secular appropriate which are within the ends against those whose interest, they may be enforced state sanction, the and even religious proscribe, beliefs do not Reynolds v. United activity the law condemns. which Beason, States, 333; 145; Davis v. U. S. 98 U. S. States, Cleveland S. 14. v. United U. say governmental regulations

This is not to find in their to the achievement support appropriateness First secular, invariably civil ends are valid under the Amendment, or Fourteenth whatever their effects sphere society achieving If religion. the value to object particular demonstrably of a regulation is outweighed by impediment regulation to which the subjects religious practices by it, those whose are curtailed object sought by or if the regulation equal could with effect be means achieved alternative which do not sub- stantially impede religious those practices, regulation Connecticut, cannot be sustained. Cantwell v. S.U. ground upon This was the which the struck Court down municipal applied license taxes as col- McCormick, porteurs Follett v. Town 573; U. S. Pennsylvania, Murdock v. S. and Jones v. U. Opelika, 319 In S. 103. each of those cases it was U. believed the State’s need for revenue, which could be *36 jus- did not sources, variety a of taxing any of by satisfied of light in the activity which upon an levy imposed tify But as sacramental. reasonably be viewed history could in the which U. S. Hampshire, v. New see Cox regula- aby secured benefits balancing public Court, of individ- impairment degree tory against measure entailed, it faith which religious expressive ual conduct regarded activity similarly of an prohibition sustained And see Prince as sacramental. practicants its Massachusetts, 321 S. 158. U. First of the discriminating phraseology

Within the cases between has been drawn Amendment, distinction questions. “free exercise” “establishment” raising is bright-line distinction to formulate Any attempt among competition In view bound to founder. one sect disad whatever “establishes” religious creeds, possible it vice versa. But another, and vantages less analytically helpful and therefore historically, —no Amendment, arising under the Fourteenth problems experi our that Amendment is national illuminated as isolate under First —to problems arising ence, than for overlapping areas of largely the two general terms phrases, constitutional “estab reflected the two concern emerge and which more exercise,” and “free lishment” “Congress respecting establishment shall make no law an . .” Madison had religion, prohibiting the free exercise thereof . . rights shall be proposed “The of none an amendment civil any worship, abridged belief or nor shall on account of rights equal religion established, shall the full and national be nor any pretext, infringed.” I An any manner, of conscience be in or on Cong. Commenting subsequent of what was on a form nals of apprehended Amendment, “he the First he said that become meaning be, Congress should not establish a of the words to compel by law, nor religion, legal of it and enforce the observation contrary to their conscience.” worship men to God in manner Id., at 730. impulses of events clearly background from the

or less birth. gave phrases those Framers of religion, In free exercise of assuring the the then recent were sensitive to the First Amendment civil dis- impositions history persecutions those virtually all of majorities sectarian ability with which matter con- had visited deviation Colonies however, protection unpopular creeds, science.2 This *37 guar- full extent of the Amendment’s was not to be the in matters intrusion governmental antee of freedom from hardly years won, in four Virginia, of faith. The battle had led the forces of disestab- where James Madison Henry’s in to Patrick opposition lishment successful Bill tax for the proposed levying general Assessment support teachers,3 compelling of Christian was vital Cobb, Religious Liberty (1902), See The Rise of in America passim; Story Religion (rev. 1939), Sweet, The of in America ed. 54, 76-77, 98-112, 129, 139-142; Sweet, Religion in Colonial America (1942), passim; Channing, History (1933), I of the United States 356-381, Virginia, 470-474. II And see Jefferson’s Notes on in 1903) Writings (Memorial of ed. 217-219. The Thomas Jefferson Virginia proposed Convention which ratified the Federal Constitution religion, duty as a needed amendment to it: “That or the which we Creator, discharging it, owe to our and the manner of can be directed only by violence; conviction, by reason and not force or and there equal, right natural, fore all men have an and unalienable to the free according religion, conscience, exercise of to the dictates of and that particular society ought no be sect to favored or estab (2d lished, law, preference Ill in to others.” Elliot’s Debates 1836) proposed by ed. 659. See also the amendment the North id,., ratify, at Carolina Convention which declined to IV understanding expressed by Island, of the Constitution Rhode I id., id., York, proposed at I and New at 328. Cf. amendment id., Hampshire, New I at 326. Religious Liberty Virginia (1900); James, Struggle The See Virginia (1910); Eckenrode, Separation of Church and State in 219-223; Randall, (1858), Cobb, I Life of Thomas Jefferson Rise Religious Story Liberty (1902), 490-499; Sweet, The in America Religion (rev. 1939), in America ed. 276-279. of that the words memory battle, 1789. The lesson Freedom, Establishing Religious of Jefferson’s Act for embodiment,4 its was “that passage whose was verbal money compel a man to furnish contributions to disbelieves, which he propagation opinions for the him tyrannical; forcing is sinful and that even the support religious per to this or that teacher of his own liberty him suasion, depriving of the comfortable particular whose giving his contributions to the pastor, powers morals he make his and whose he pattern, would persuasive righteousness, withdrawing feels most and is ministry temporal proceed rewards, from those ing approbation personal conduct, from an of their are an unremitting additional incitement to earnest and labours Virginia for the instruction mankind . ...” What had long practiced, and what Jefferson and Madison, fought end, govern others was the extension of civil support religion ment’s in a manner which made the two some degree interdependent, and thus threatened purpose freedom of each. The the Establish *38 ment Clause was to assure that legislature the national power would not exert its in the of any purely service religious end; virtually that it would as Virginia not, all of the done, religion, religion, Colonies had make of as an object legislation. of

Of the course, object immediate of the Amend- First prohibition ment’s was the church as it had established been known in England and most of the Colonies. But with foresight those adopted who drafted and the words, “Congress make an respecting shall no law establishment religion,” proscription did not limit the constitutional any particular, form state-supported theologi- dated cal venture. The Establishment Clause withdrew from history Virginia episode extensively is treated in the opinions Education, in Everson v. Board S. 1. U. Hening, Virginia 5 12 (1823), 84, Statutes of compe- legitimate legislative concern sphere area of human con- comprehensive,

tence a but specific, of some verity or disbelief duct: man’s belief expression man’s action of idea and transcendental make these Congress may that or disbelief. not belief now, may matters, such, subject legislation, nor, the National any legislature country. this Neither nor, under the Due Process Clause of the Government Amendment, by any may, device, a State Fourteenth expression sake, of belief for its own support belief or the truth belief, whether from conviction of the propagation from conviction that of that belief the civil welfare of the served, State or because majority citizens, holding belief, of its are offended when all do not it. hold regulations

With which have other objectives Establishment and the Clause, separationist fundamental concept it not are concerned. These expresses, regulations may guarantee fall afoul of the constitutional against infringement of the free exercise or observance religion. they do, they Where must be set at aside instance of faith they prejudice. those whose But once it is challenged determined that a supportable statute is as implementing other substantial interests than the promotion of guarantee belief, prohibiting religious “establishment” is satisfied.

To ask interest, what objective, legislation what serves, of course, is not psychoanalyze its but to legislators, examine the necessary they effects of what have enacted. If primary end achieved regulation form of is the affirmation or promotion of religious primary, doctrine — in the sense that all secular ends which it purportedly *39 serves are derivative from, wholly not independent of, the advancement of religion regulation beyond is —the power of the state. This was the case McCollum. ifOr a statute furthers both secular religious ends of the secular by unnecessary means to the effectuation equally secular ends could ends alone —where the same consequences be attained means which do not have A promotion statute cannot stand. religion —the although that church may State not endow church might parishioners concepts inculcate its moral deemed citizens, very to make them better because the raison d’etre a church, opposed as to other school of civilly morals, predication serviceable is the doctrine. if However, free, inasmuch individuals are they to build their own churches and will, worship them, may guard people’s safety by the State its extend ing police protection fire and to the churches so built. It was on the reasoning parents liberty are also at to their parochial send children to schools meet the reasonable educational standards of the State, Pierce v. Society Sisters, 268 U. S. this held Court in the Everson expenditure public case that to funds assure that attending every children kind enjoy of school security the relative buses, being rather than left to walk or an not hitchhike, unconstitutional “establish ment,” though expenditure may even such an cause some go parochial to schools who would not children other wise gone. have close division of the Court Everson questions serves to show what nice are involved in applying particular governmental action the propo sition, undeniable in abstract, every that not regula tion practical some of whose may effects facilitate the religion observance of a by its adherents affronts the requirement of separation. church-state

In an important sense, the constitutional prohibition of religious establishment is a provision compre- of more hensive availability guarantee than the of free exercise, insofar as both give content prohibited fusion church and state. The may former be invoked corporate operator of seven-day department store whose *40 financially it closing injures Sunday

state-compelled —or whatever their employees, store’s by department the Sunday of a convicted for violation are faith, who retailer Jewish the Orthodox statute —as well in him prejudices that the statute claims consumer who for- it must not be his faith. But keep ability his to department the store question which that the gotten is in their behalf raise own employees may operator and case of Orthodox posed the narrower than that only can prevail contention Jew.6 Their “establishment” other any legislative purpose substantial if the absence of appear. to See Selective than a one made Cases, U. S. 366. Law Draft Sunday In retail sellers and their present cases attacking banning employees customers, statutes most Christian creeds various on activities that no other assert these statutes have do consecrate, legislators’ motives They urge, purpose. first, appellant employees As in the retailers and retail McGowan and McGinley urged any question of have neither here nor below cases rights infringement conscience, agree of their own with The I they standing Chief Justice have no to raise “free exercise” Raines, not issue. United States v. 362 U. S. 17. Court need proper proofs, determine this time what averments or what in a at ease, required be in order to such issues their behalf. would raise appellants Gallagher, they appellees Unlike have Braunfeld any urged remaining any day of not that their shut on the week closing disadvantage peculiarly. They to reason causes them right they right operate days seven assert a to a week—a in which record, economic, Nor, claim an not a conscientious interest. this might necessary is it to decide whether these sellers retail standing complain disadvantage enforced have their Sunday closing potential to conscientious Sabbatarian customers or 249; Jackson, Society v. customers. Cf. Barrows 346 U. S. Pierce Sisters, they presented S. 510. Nowhere below have 268 U. hypothetical thus such actual or customer is evidence that disadvantaged. influ- private and unformulated religious. But the

were open not legislation are may upon work ences which this court from “The decisions of judicial probing. assumption support no whatever beginning lend *41 restrain the exercise lawful judiciary may that the purpose assumption wrongful on the power McCray v. power the to be exerted.” motive has caused States, into the hidden United “Inquiry U. S. legislature] to exercise a may motives which move [a beyond constitutionally upon conferred it is the power States, Sonzinsky v. United competency of courts.” Fenno, 513-514. Veazie Bank v. 533; U. S. Wall. ex rel. California, Arizona v. Oklahoma 423; 283 U. S. Co., Phillips Guy Atkinson These S. 508. F. U. the state statu- litigants argue, however, also when in context tory provisions regarded legislative are their use religion apparent they point is on their face: to the day” of the terms “Lord’s and “Sabbath” and “desecra- only exceptions permit to whose hours activities tion,” are cus- Sunday religious at times on when services per- otherwise tomarily explicit prohibition not to held, activity vicinity regulations mitted the churches, which condition the of conduct on its consist- allowance ency day. course, with “due of the Of the observance” exemption since from provisions regarding these various ban of certain recreational activities have no possible application litigants present cases, to the they are not themselves before the and their con- Court, stitutionality they put is not now issue. But are for- ward as are purpose evidence of the of the statutes which may them, attacked and as such here, properly we look to and also history body Sunday regu- to the of the of state lations, which, urged, it is further demonstrates sectarian creedal purpose. appraising argu- As basis for these ments that the statutes are legislation, pre- determining infringement claims of liminary cases, Gallagher in the raised conscience Braunfeld development survey long historical necessary it is Sunday regulation. of civil present-day position II. which saw the span of centuries

For purposes these Commandment,7 Fourth Constantine’s enunciation of Sun,8 of the labor the venerable proscribing edict Mero- Carlovingian, Sunday prohibitions and the kings the English and later of vingian and rulers, Saxon centuries, may passed be of the thirteenth and fourteenth institution over.9 here is What of'concern Colonies, the American England, as it evolved modern and the under Constitution. States Union regulation, pur- this significant English Sunday first *42 in Henry after pose, which, was the statute VI and done to reciting injuries “the abominable offences and to his . . . of fairs Almighty God, Saints, because in high and ... upon principal feasts, and their markets great earthly and for principal days, festival bodily covetise, willingly vexed, is more and people though . . days, labour than other . ... as soiled, they did remember horrible of their nothing defiling and many souls and with deceitful lies buying selling, strifes, spe- false and and so perjury, with drunkenness 20:8-11, 23:12, 31:12-17; Deuteronomy 7 See 5:12-15. Exodus III, Schaff, History II Justin., XII, Codex liber Tit. 3. See (1867), 380, of the n. 1. Later of the Christian Church edicts g., emperors unequivocally temper, were more Christian e. Theo., Pharr, D., VIII, VIII, of 386 A. Codex liber Tit. 3. See (1952), The Theodosian Code 209. Sunday Legislation (1888), Lewis, History See A Critical 1-90; 86-137; Yost, Neale, (1845), Fasts Feasts and Johnson and Separation 219-221; Encyclopedia (1948), of Church and State XII Religion (Hastings 103-106; 1921), Savage, and Ethics ed. Keep Sunday (1898), History, in Church in How 27. Shall We and servants from cially withdrawing themselves their . . . that all fairs and mar- ,” divine service ordained goods kets should cease to show forth merchandise Sundays, days.10 and the feast A Friday, principal Good century short-lived ordinance of Edward limit- later, VI ing bodily Sundays the ban on labor to and enumerated holy days, demonstrated in its preamble similar sec- tarian purpose,11 I, and in 1625 Charles announcing “there is nothing acceptable more than the true God and him worship sincere service and . . and that . holy keeping principal of the Lord’s is a part of the true prohibited service of all God,” meetings people out of their parishes sports pastimes on Sunday, and all bear-baiting, bull-baiting, interludes, common and other unlawful exercises and plays, pastimes on that day.12 years Several later the same it king declared reproachful of God and religion, hence made it un-

10 Henry VI, c. 5.

11 5 & 6 VI, Edw. c. “Forasmuch as at all times men be not so praise God, ready mindful to laud and so to resort and hear God’s holy word, holy and to come to the communion and other laudable rites, every which are to be congregation, observed in Christian duty require: their bounden doth . .. therefore to call men to duty, help infirmity, remembrance of their and to their it been hath wholsomly provided, that there should be some certain times and days appointed, wherein Christian should cease from all other labours, apply only wholly kind and should themselves unto holy works, properly religion pertaining aforsaid unto true . . . punished by Violations church, were to be the censures of the *43 bishops, archbishops having administered persons the other and jurisdiction. purpose ecclesiastical ap of this ordinance was parently relatively days to to a restrict fixed and limited number the upon cease, multiplication days which labor should of saints’ having they alarming proportion risen until came to consume an year. Queen repealed Mary. It was under I, regulation,

12 I prescribing penal Charles c. 1. This while civil ties, preserved jurisdiction the concurrent of the ecclesiastical courts punish breaking. to Sabbath

472 carriers, drovers, or slaughter butchers

lawful, then, day;13 on the Lord’s to travel waggoners, etc., Holy keeping and the better Observation 1677,14 “For II, 7,c. which statute, 29 Charles Day,” the Lord’s “that was enacted: Sunday Britain, law of still the basic whatsoever, shall on and Persons every all and Person the Observation Day apply themselves every Lord’s thereon by exercising themselves same, pri- and Piety Religion, publickly Duties and true Tradesman, Artificer, . . and that no vately; . Work- do man, whatsoever, Labourer or other Person shall or any worldly exercise Business of their Labour, or Work ordinary Callings, upon Day, any part the Lord’s or (Works Necessity Charity only thereof ex- cepted;) whatsoever, . . . and that no Person or Persons shall publickly expose or cry, forth, Sale, shew Wares, Merchandizes, Fruit, Herbs, Goods or Chattels whatsoever, upon Day the Lord’s . . . .”15 In 1781,

13 I, 3 Charles c. 2. survey Sunday regulations For promulgated of the extensive Commonwealth, Lewis, op. cit., supra, 9, under the see note at 115-142. punished by penalty shillings, selling by Work was of five for goods. against traveling feiture of the The ban butchers and herders twenty shillings. Dressing repeated, was under fine of dressing selling of meat in families and or of meat in inns and victual- ling provided” houses permitted, “for such as otherwise cannot be was crying selling p. was of milk before 9 m. 4 m. a. and after exceptions English Later statutes made numerous other to the Sun g., see, Anne, 23, exempting hackney coaches; ban: e. §20, c. Act, V, 51, 1932, exempt Entertainments 22 & 23 c. Geo. ing pictures option authority stipu motion at the of local and under conditions, making lated and also lawful certain musical entertain ments, debates, operation museums, galleries, lectures and and the zoological etc.; regulation gardens, evolving botanical Sunday baking, III, 61; 50, 11; IV, 1 & 2 Geo. c. Geo. c. § IV, P., 106, 16; IV, 14; 3 Geo. L. & c. 6 & 7 Wm. c. § § Baking Industry (Hours Work) Act, 1954, II, 3 Eliz. c. &

473 21 statute, III, Geo. c. that various 49, reciting public entertainments, explications scriptural by and texts incompetent persons tended great encouragement “to the of irreligión and profaneness,” closed all and rooms houses in which public entertainment, debates, amusement or for an admission charge, were held.16

These Sunday indisputably laws were works English Establishment. Their prefatory language spoke their religious inspiration,17 exceptions made from time to expressly time were limited to preserve inviolable the hours of the divine service,18and their administration 12. The Observation Act, 1871, § Prosecution 34 & 35 Vict., 87, provided c. prosecutions that no statute, under the II, might Charles brought c. be without the consent of a chief police officer, stipendiary magistrate, justices or peace. two 16Common practice informer under this statute has since been abolished. Act, 1951, Common Informers VI, 15& Geo. c. Ridler, See Fennell (1826): 5 B. & C. spirit 407-408 “The of the act 29 Charles is to religion, advance the [of II] interests of thoughts turn worldly a man’s from his concerns, and to direct them piety the duties religion; and the act cannot be construed according spirit to its unless it is so construed as to check the career worldly may private traffic. . . . Labour be and not meet the public eye, against public and so not offend decency, equally but it is labour, equally interferes with a man’s duties.” Sports published The Book of repub James I in 1618 and provided: lished Charles I good in 1633 people’s “as for our lawful recreation, pleasure is, our ... that after the end of divine service good people our be any not disturbed . . . from recreation, lawful dancing, leaping, such as vaulting, any . . . or other such harmless recreation ....

“And likewise we liberty bar from the benefit and all such known recusants, women, either men or coming as will abstain from to church service, being unworthy divine therefore lawful recreation service, after said that will not first come to church and serve God. Prohibiting in any that, though like sort the said recreations to con- religion, present form in God, are not in the church at the service of going before their to the said recreations. pleasure, is, they

“Our likewise belongeth office, to whom it present punish sharply shall such, all as in abuse of this our But even was evident.19 piety spirit inquisitorial *45 secondary notes of a period religious predominance,

this of of from the counsel Apart be heard. purpose civil could insisted the Reformation from the time of those who had a precept itself embodied the Commandment that Fourth claims significance,20 than sacramental of social rather for liberty the end all divine services will use their exercises before cit., 9, Govett, day.” op. supra, at 106-107. See Lewis, note that proviso King’s Sports (1890). excepting also the See The Book Billingsgate 24, 14, respecting III, statute, to the 10 & Vm. c. § selling of or after importation and fish “before Market. Certain Sundays” prohibited. is not to be deemed Divine Service on royal proclamations enjoin spirit may be seen Such a in various Eight laws, Whitaker, see The ing strict enforcement eenth-Century Sunday (1940), 56, 172-173, in the English and grand encouraging performance language charges juries their to the laws, id., 53, the at 57-58. Private societies of their duties under see agents the laws self-appointed of administration of formed 69, id., 62, 121-123, See, at 195-197. were in orientation. Deuteronomy day in injunction 5:14 to observe the Sabbath any thou, thy day work, do nor that on “. . . thou not shalt maidservant, thy thy manservant, thy son, daughter, nor nor nor stranger ox, thy thy ass, cattle, thine nor nor nor nor thine thy thy gates; thy maidservant that is within manservant and explicators may Among of the Old rest as thou.” Christian well as early language. inspiration this a was ascribed to Testament social Doctrine, Milton, in V A on Christian book c. See Treatise (Sumner 1877) Luther, Milton trans. 67. in Prose Works of John Large I, Commandment, “. . .we Catechism, part wrote: Third Christians; holydays intelligent keep the sake and learned not for them, they keep first, it. for the sake of for no need of have We bodily necessity. the mass of the Nature teaches and demands that mechanics, week attend to people who whole —servants day of rest and recreation.” their work and trades —retire for a Lenker, Writings (1907), 60. See also I Luther’s Catechetical (1520), Commandment, on Good Works Third Luther’s Treatise (1915), XVII, Compare Calvin’s in I Martin Luther Works of observance, among Sabbath Institutes: the three reasons for day give servants those who are of rest to Lord “resolved to they others, have some authority in order that should under in eighteenth century on behalf of Sun- were asserted day part, the service of health and welfare.21 rest, wrote that “. . . besides the notorious inde- Blackstone cency to be permitting any and scandal of secular business publicly day country professing transacted on that Christianity, corruption usually and the of morals which follows its one the seven profanation, keeping holy, as a time relaxation and refreshment as well as public is of to a con- worship, admirable service state, merely sidered as a civil institution. It humanizes, help society, of conversation and of the lower manners classes, degenerate would otherwise into a sordid ferocity savage selfishness of spirit; it enables the *46 industrious workman pursue occupation to his the ensuing week with health cheerfulness; imprints it and on the minds people of the that sense of their duty to God necessary so to make them good citizens, yet but which respite Calvin, from Religion toil.” Institutes of the Christian (Battles 1960), II, 8, 28, p. Early trans. book e. at 395. And see § Writings Hooper, (Carr 1843) of John D. D. ed. 337: “Then like- by provideth wise God this temporal commandment for the and civil man, things life of necessary expedient and likewise for all that be and man, servant, man in this life. If and beast that is man’s should repose always they without labour, might and rest never endure the therefore, travail of the earth. God as he that intendeth the con- thing servation and wealth of man use, and the created to man’s repose labour, may commandeth this rest and from that his creatures necessary endure and serve business, as well their own affairs and preserve youth offspring the and ‘of man and beast . . . .” appeared essay by In Knox, A., 1778 there an Vicesimus M. supporting grounds state-enforced observance on of health religion. Whitaker, Eighteenth- and custom as well as of See Century English Sunday (1940), reported 148. It is that in 1728 Fraternity Company members of the Gloucester of Barbers by self-imposed prohibition had undertaken to enforce fine a Sun day labor, apparently six-day to assure that those who wanted a compelled by competition work week be would not to labor on the id., whole seven. See at 59-60. con by unremitted defaced an and be worn out

would recalling times of any stated labor, without tinuance 22 In 1788 the their Maker.” worship them to obligated master Ill, c. 48, act, schedule to Geo. at least apprentices washed sweeps their chimney to have should the master providing a week, once on him to have should allow apprentice worship, send him to wear allow and should not religious instruction, sweeps’ also sweeping regulated the act dress; his a Select Committee In 1832 Commons hours of work. testimony of the Observance of the Sabbath heard the on injurious effects of physically as to the a medical doctor report labor,23 although seven-day unremitted cast of primarily religious mind, a the Committee reveals sensitivity journey to the plight it discloses also a bakers, petitioned of whom had man seven thousand one to the wishes of day’s repose weekly, House for competition to work shopkeepers and'tradesmen forced day of rest.” Sunday, although “most desirous of The Committee recommended the enactment of severer objects sanctions for “The be Lord’s violations: by Legislation may be, first, be attained considered to Lord’s-day, solemn and outward Observance of the decent portion apart as that of the week which is set Divine Worship; next, securing Command for Public *47 every Community member of exception, the without uninterrupted enjoy and however his the station, low Mercy pro ment of that in Day of Rest which has been of as him, privilege employing it, vided for and well in the (Lewis 1897) Compare 22 IVBlackstone Commentaries *63. the ed. Report Judiciary petition praying of the Committee on the on the repeal enforcing day “the of all laws . . . the of a of the observation Leg. Docs., week as the Sabbath . . . Mass. Doc. No. H. (1851), 9-10. 23Report from the Select Committee on of the Sabbath Observance Day, C., Papers (1831-1832), pp. in 7 H. Sessional at 116-117. 24 Id., id., p. pp. at 5-8. See at in ordained, the sacred for the Exercises which it was bodily relaxation is his necessary well-being, which for and which, though secondary a is also of end, nevertheless importance.” high

But, whatever nature propulsions underlying the during state-enforced labor Sunday stoppage these cen- turies before the it is clear that its twentieth, effect was the day creation of an of as a Sunday apart. institution The origins of the religious, institution were but certainly, through long-established usage it had a part become of life the of the English people.26 day It a of rest was not in merely a hygienic in sense, but the physical, sense of a recurrent time in cycle the of human activity when the rhythms a day particular existence changed, associa- which tions came have their to own autonomous value for life.27 When that value was pressures threatened the of the Industrial Revolution, agitation began for new

25Id., pp. at 9-10. Trevelyan’s quoted See Skottowe, comment in the foreword to Relating Sunday The Law (1936); to Whitaker, in Tudor and (1933); Whitaker, Stuart Times Eighteenth-Century English’ The Sunday (1940), especially at 199-201. 27 Addison, writing July 9, 112 of the Spectator, in No. 1711: “I am always very pleased country well a think, with Sunday, keep and if holy ing day only seventh institution, were it human would be best method that thought polishing could have been and civilizing of certain, people mankind. country It would soon degenerate savages into a barbarians, kind of were there not such frequent time, returns of a in village stated the whole meet together faces, with their habits, best and in their cleanest to converse upon with one another subjects, different explained hear their duties them, join together Being. supreme adoration of the Sun away clears only the rust week, whole as it not refreshes in their religion, minds the puts notions but as it both the sexes appearing upon agreeable forms, exerting their most all such qualities apt give figure eye as are them village.” Spectator (Am. 1859), The attempt ed. at 160. capture See the peculiar atmosphere opening lines to the second (1783). Village book of Crabbe’s

478 English the traditional preserve action legislative Sunday.28 Workshop Factory century, the

At turn of the the women Sunday employment of 1901, the Act, prohibited Shops The establishments.29 in industrial and children five-and-a-half-day week of a 1912, in its institution Act, Sunday existing the base of upon built shop assistants, for pressures the war the during closing law.30 When 28 testifying on a president grocers’ association In late 1895 the urged shops the regulating closing hours of that proposed the bill House; closing Sunday to the Committee recommend Commons Sunday grocers off were alarmed many English wanted their who by competitors which would force trade at the threat increased Sunday. on opening Report from the Select Committee on their own 1895) (Commons Report Closing) 158-159. The Shops (Early Bill Sunday on Clos of Lords Committee the House from Select closing legis Sunday (1905) ing (Shops) did recommend Bill [H. L.] more than three lation, supported all but one of the which it found shopkeepers whose views were ascertained. hundred associations (a testimony quotes of a witness Report, VI-VII, at Committee’s great impresses may noted), clergyman, “. . . the need that it be my that because busy part London is the fact of us workers in all people safeguard of our the lives the noise and rush we do want necessary day brain and for having It is by their one seven. question, for the body, quite apart aspect from living down there moment, which we are all stress at day. Sunday . . The British practically has like other . become great say they in a measure population would lose their custom very feeling self-defence, open Sunday. The they, if not did work, many of have to whether the result is that them dominant that days (See testimony they also to the not, like it seven a week.” 3-4, 30, 36, 40.) effect, id., 17, 20, at same VII, 22, Continued, amended, in the 29 1 c. 34. as Factories Edw. § 67, Act, 1937, VI, c. Edw. VIII & Geo. § half-day closing half- 4, provides and a V, for a Geo. c. §§ day in week.” employees one week each off for "On at least recognition century legislation (§1.) twentieth indicates Other interweaving hours-of-labor and other effects of the laws 57, 12, repealed the legislation. II, The statute of 2 & Eliz. c. § affecting baking industry program part of a new laws

479 factory national compelled operation, defense continuous a Ministry Committee of the to appointed of Munitions fatigue investigate industrial as this affected health efficiency workers, and of to munitions recommended reinauguration Sunday Parliament of work stoppage: Sunday . The problem labour, although . of materially affected various industrial questions Sunday and the custom is—as rest, established of regards question Munitions primarily Works — to actually weekly the extent which workers require periodic they rests if maintain health are to their energy long periods. over Intervals of rest are needed to overcome mental well physical as In fatigue. this connection account has to taken be only not of the hours of (overtime, labour 12-hour shifts), 8-hour shifts, the environment of the work physical and the strain but also the mental involved, fatigue or resulting boredom from atten- continuous tion work. one put to As is Manager it,. it monotony of the work kills—the men sick get of it. f

“. . . the maximum output to be secured [I] maintained length weekly for of time, a period of rest be must allowed. ... On economic grounds social weekly alike this period rest provided is best on Sunday . . . regulation industry. hours Sunday for that Entertainments Act, 1932, V, Sunday permitting & Geo. c. at cinema local option, subjects operation allowance to the condition person may employed no be therein who has on each of worked days the six preceding, except next emergencies, in which case the employee get day’s his subsequently. must rest 31Ministry Munitions, Committee, Health of Munition Workers Report Labour, (1915), Memorandum No. [Cmd. 8132] 3, 5. The specifically investigate Committee had not been directed

.480 pressures economic conflict between

In activity and the resistance seven-day commercial Trading Shops (Sunday in pressures culminated those complex pat- which, with Restriction) year, ofAct pain Sunday trading upon exceptions, prohibited tern calculated and hence better severe, more penalties nominal fines which than the obedience, assure century Lord’s seventeenth under the had obtained *50 are on the 1936 Act Parliamentary Debates ban.32 inti- extremely exceptions,33 no rare instructive. With in them.34 is to be discovered religious purpose mation of the by Mr. Loftus who introduced speech The opening representative: is bill necessary is to secure . . is a Bill which

“. [I]t thousands liberty life and of hundreds of family the . people. . . our inquiries generally into hours question, but in its the labor specially labor, “employers were con it that and workers discovered problem Sunday labour,” and present with the the time cerned at urgency importance of impressed “so with the the Committee was report on question,” preliminary it to a that determined submit this Id., subject this alone. at 3. 32 Meat VIII, 1 See also the Retail 26 V & Edw. c. 53. Geo. VIII, Act, 1936, V 1 Shops (Sunday Closing) & Edw. Dealers’ Geo. VI, Act, 1950, 14 Shops Geo. are the c. 30. These continued acts 28, part IV. c. 1935-1936) (sug (5th ser. Deb. 2216 and 2223 See 308 H. C. they day when gesting persons ought not made to work on be id,., strongest religious services); 2211. The to at would want attend opponent of religious demonstrated an sentiment was Christian id., speakers the bill, 311, opposing waved the see at 497. Other attempt the measure. religious to discredit shibboleth of motive an id., 308, id., id., 2097; 2190-2191; see at 2179- at at but See 1935-1936) 2182; (5th (two opponents admit H. ser. L. Deb. 262 effect). purpose absence of course, where, especially significant England no con This is to encourage “make compulsion exists to Parliament stitutional concealing aim. a clandestine sectarian record” . explain “. .1 will to House that there are the Sun shopkeepers opening thousands of who hate on day they dislike the are forced whole idea —but — open neighbours open. They because their are forced open Sunday trading, for but not the sake of the if they because let their into habit get customers going shops may on other lose their they (cid:127) week-day They . . right custom. . have the to a holiday on Sunday, to be able to rest from work go parks and to into coun out or into the try on a is day. liberty summer That they asking, liberty are and that is which this Bill give support would to them. As regards the promoted behind it Bill, Early Closing is with Association, associations, 300 affiliated and the National of Grocers, representing 400,000 Federation individual and is supported by the National shops, Chamber Trade, Drapers’ Chamber of Trade, the National Federation of the Boot and as Trade, regards employes important this is —and —it *51 supported by the Shop National of Union Assistants and the National Union Distributive 35 Workers.” Speakers the necessity maintaining for asserted “the tradi 36 tional quality Sunday of the in country.” this One particularly staunch supporter Labour of the measure argued:

.“. . I Frankly, am seven-day afraid a week. I see it coming and a gradually, seven-day week 35 id., (5th 1935-1936). 3 08 H. C. Deb. 2157-2159 ser. See also at 2165-2167, 2174, 2186, 2207, 2211, 2213, 2223-2224; H. 101 L. 254-255, (5th 1935-1936). Deb. ser. 311, id., (5th 1935-1936). 3 08 H. C. Deb. 2209 ser. See also at 453-454, Throughout 490. emphasized is debates it that the bill Sunday Trading was “a Restriction and Bill not ... a Bill to have id., id., day’s 456; one rest in seven.” at see at Yet it quality was not sacred was that meant. I days’ work. have seven days’ pay six for

means say that, I my and a time days week seven worked days shall seven nobody else work it, if I can help shopkeeper if It is that one pay. clear days’ six to open street is bound the whole street, a opens open must the whole town opens, if one street and, as a Sabba not-speaking I ... am automatically. six-day working week with I for the tarian. stand that day’s I do not want seven but day’s rest-in one suggested by hon. on the lines arranged rest my turn . wants to who, apparently, . . Member Tuesday Wednesday. argu a a Sunday into a there shall be say need do ment is that all we in seven, day’s with one rest six-day working week Sunday not matter whether it does and man Tuesday. family As a Friday on a or a comes dis my family unduly life would be sayme let Tuesday. a Sunday if had his turbed member in the everybody is that Sunday The value of a day. is the use family is on the same What at home talking six-day working a week about his day each have family six members of a would different-day a the week?” rest on by labor and trade strongly supported The bill was margin.39 an passed by overwhelming and groups experience intimate English Thus the demonstrates the civil relationship regulation between its preserving people interest of state recurrent physical recuperation mental from the strains time of ordinary their labors. demonstrates pressures It historical course, the intimate connection between also, choice of as this time of and the doctrines rest *52 id., 08, at 3 2197-2198. id., id., 2206; 2186, 2194-2195, See at 2095. at 39Although private bill, passed a member’s the measure on the 308, id., reading by in second a 191-to-8 vote. at 2230. Commons emergence Long church. before the the Christian religion had government, modern notions of set apart. Through generations, people were accustomed day to a If it ordinary might it as uses ceased. when practicable ful- equally once—or elsewhere —have been to fill periodic the same need the workers and traders for it no relaxation the selection some other was cycle, longer practicable England. hypothetical Some man might one-day-in-four, do better one-day-in-eight, with Englishman one-day-in-seven. but the was used And day was Sunday. Through associations fostered tradition, day had a character its own which became itself a cultural asset of importance: release from daily preserve grind, an peace, mental opportunity for self-disposition. Certainly, legislative fiat could have attempted to switch the Tuesday. But Parliament, naturally enough, concluded that such an attempt might prove ephemeral as futile as the decade Republic French of 1792.40

40Even on Continent the forces in the latter half century pressed nineteenth for the working amelioration of the condi expressed tions of the laborer part Sunday legisla themselves in tion. Germany, Austria, Government, Denmark, the Swiss Federal Norway 1870’s, and Russia promulgated regula in the 80’s and 90’s prohibiting Sunday employment tions only some cases women —in children; others, for all workers in enumerated industries —or closing factories or during part commercial establishments or all of day. Congrés Repos See Paris, International du Hebdomadaire, 1889, Compte-Rendu (1890), 339-344; Congrés International du Repos Dimanche, Bruxelles, 1897, du Rapports Compte et Rendu (1898), 9-24, 139-159, 229-234; Congrés Repos International du du Paris, Dimanche, 1900,Rapports Compte (1900), Rapports et Rendu I, II, VII; No. Mackenzie, ed., Rest-Day, The World’s An Account of Congress the Thirteenth International Day, Edinburgh, the Lord’s (1909), 168-187; Report Special of the Joint Committee to Revise, Arrange Consolidate Relating . General Laws . . Day, Leg. Docs., Observance of the Lord’s Mass. H. Doc. No. 1160

III. Sunday civil too, England’s settlements, In American in of importance, an institution early became regulation Colony had Every of life. pattern the colonial shaping These had been enacted Sunday labor. prohibiting a law plebiscite In (1907), Appendix, at 57-66. the late 1880’s German among strong popular support both by Bismarck showed conducted Congrés Sunday closing. employees See Interna- employers and for (1890), Repos Hebdomadaire, Paris, 1889, Compte-Rendu tional du Sunday-closing development European move- The of the 360-364. of an proceedings the of the conventions is reflected in various ment Congress International which sometimes the institution convened weekly rest, Congress Sunday as the sometimes International Sunday supra; also, g., Jackson, ed., cited, see e. reports rest. See the ’ Century, An of the International Twentieth Account Rest in the Congresso (1905); Sunday Congress Louis, Inter- at St. Rest (un- Resoconto, Milano, Settimanale, Riposo Pro nazionale dated) ; Sunday, Day, Fourteenth International Rest World’s (1916). Day Congress, Oakland, California, At the first Lord’s 1876, delegates displayed pri- meeting group, this Geneva although physical marily religious outlook, much was also said Congrés through periodic rest. of the worker and moral betterment Genéve, 1876, (1876), 120, 187- Dimanche, Actes du sur l’observation secure 191, major objective the Conference was to A 353-367. employees. When, inter- after several off for the railroad vening conventions, Congress met in Paris in the International Say, temper its rather presidency of Leon and was it was under the Congrés It took the name of the International secular than clerical. though both of Repos Hebdomadaire, it members contained du tendencies, more conservative-religious the latter were and of socialist pro- formulating Congress’ especially-took the lead vocal and merely voluntary, state-enforced, industrial clos- gram rather than Hebdomadaire, Congrés Repos Paris ing. International du See group (1890), 83-93, 103-108, Yet Compte-Rendu 344-380. day merely of rest not one indiscriminate resolved to demand some degrees Sunday: possible-to varying weekly, “1. rest is but is both every industry. This of rest most suitable point worker, of view of employer to the as well from good family, it is that of the and because as from individual in many instances prior quarter to the last of the seven- they teenth century, through- were continued in force period out the that preceded adoption of the Federal *54 day be, possible, the of rest should Id., as much as the same for all.” (translated French); id., at 160 from the 126, 167, see also at 197. (Compare Concerning Weekly the Convention Rest in Commerce Offices, 1957, and of the Convention 106 General of the Conference Organization, Geneva, International Labour 1957, 432, H. R. Doc. No. Cong., 7-12, providing 85th weekly day 2d Sess. for a of rest which shall, possible, day where “coincide with the of the week established by as a of rest the country traditions or customs of-the or dis- 6, possible, trict.” Art. 3. So far as the traditions and customs § religious of respected. minorities are to 6, Similarly, be Art. §4. The International Labour Concerning Conference’s Draft Convention Application Weekly the Undertakings, of the in Rest Industrial adopted at the Third Session of the General in Conference in Geneva 1921,establishes 24 per days consecutive hours of rest seven for indus- workers, fixed, trial possible to be wherever “so as to coincide with days already the established the traditions or customs of the county or district.” Conference, Art. 2. International Labour 3d Sess., 30.) Draft (1921), Conventions & Recommendations Chicago, years later,

At perspectives four both clerical and laborite again represented; were George McNeill, pioneers E. one of the movement, spoke, American labor representative and the of the Railway Brotherhood of organi- Trainmen and other railroad workers’ zations, Coffin, supported Sunday Sunday Problem, L. S. rest. The Day Its Aspects, Papers Present Presented at the International Con- Sunday Rest, Chicago, (1894), gress In at Brussels, spirit again predominantly secular; Congress was extensively question debated governmental whether action to compel day advisable, of rest was or whether the matter could best be persuasion handled employers; of individual and the sense of meeting strongly governmental Congrés favored intervention. Repos International du Dimanche, 1897, Rapports du Bruxelles et Compte (1898), 35-47, Rendu 161-171, 377-385, 387-393, 538-559. Congrés See Repos Dimanche, also Paris, 1900, International du du Rapports (1900). Compte meetings et Congress Rendu Later religion-oriented, although tended to be interests continued secular Jackson, ed., op. cit., find supra, 59-77, 85-96; voice. See at op. Mackenzie, ed., cit., supra, at 187. in This is not Rights.41 Bill of and the

Constitution laws, those purpose course, indicative itself, consistency guarantee with the or of their restraining the Amendment', First which the freedom Most Government, secured. the central power of Only in 1789.42 only partly disestablished were States had which had never Island, in in Rhode Virginia43 church- complete ideal establishment,44 had the an fast States were been realized. Other separation state everywhere the ideal, however, approaching Rati- was the ascendant. liberty religion spirit of York, Hampshire New New fying Conventions Island, Virginia as in and Rhode Carolina, as well North to the Con- an anti-establishment amendment proposed understanding signified stitution or their All of these safeguard.45 such Constitution embodied *55 Con- Sunday laws at the time that their five had States legisla- in of the their spoke. Indeed, five, four ventions Sunday within five had the labor ban tures reaffirmed immediately prior to that date.46 years or less 41 opinion, post, p. Appendix I to this 543. Hereafter See Colony. Sunday be and colonial statutes will cited date 42 Religious (1902), Cobb, Liberty The Rise of in America 482- 517; (rev. 1939), Sweet, Story Religion in America The of ed. 274-280. 43 “Monopolies. essay, Perpetuities. Corpora James Madison’s See Fleet, tions. in Madison’s “Detatched Ecclesiastical Endowments.” (1946). Memoranda,” Mary 534, 551, 554-556 See 3 Wm. & Q. supra. in note authorities cited 44 Assembly Proceedings Incorpora “The First of See General Laws, (1847), Plantations,” 1647 tion of Providence Code forbidden, all and, 50: . . otherwise than thus what is herein men “. may persuade them, every in one the name walk their consciences Liberty Religious Cobb, . .” The Rise of in of his GOD . . See (1902), 423-440. America 45 supra. note See 46 Sunday 1789, New Hampshire laws in New enacted 1785 1788, Virginia exempted in from York 1786. Rhode Island 1784 in in

487 among The earlier colonial Sunday statutes were unquestionably religious Their purpose. preambles profanation recite that day great of the Lord’s “to the 47 Reproach of the Christian Religion,” great or “to the Godly offence of the must among us,” welafected be suppressed; holy that keeping day, “the the Lord’s is a part principal God”; neglect true service of ing the “pulls judgments Sabbath downe upon of God that place or people that suffer the . . . same .” The Pennsylvania first Sunday law announces a purpose “That Looseness, irreligión, may and Atheism Creep not pretense under . . Conscience . .”51 Sometimes her labor societies, ban specified members Sabbatarian but exemption that the persons keep shops did not extend to allow such open or do places; mechanical compact labor in in 1798 Rhode again comprehensive Island enacted law with the same exceptions. 47Delaware, 1740. (Plymouth), Massachusetts 1658. 49Georgia, Maryland, 1762. See 1696; York, 1685; also New Carolina,

South I, quoted See of 1 the statute Charles 12, supra. Colony text at note Bay law the Massachusetts playing, walking, drinking, sporting, traveling recited on the God, Reproach Lord’s tend “much to the Dishonour.of Religion, Grieving Servants, Prophana Souls Gods and the Holy Sabbath, tion of his put Sanctification whereof sometimes Duties, immediately for all respecting the service of God contained in the first Table . . . .” 50Connecticut, 1668.

51Pennsylvania, 1682; *56 1690, see also the statutes of 1700. The “Body of Laws” persons of 1682 declared tolerance for all believing Supreme Being: in a Looseness, “But to the That end irreligión, may pretense Creep and Atheism not in of under Con Province, according science in this Be That, It Enacted . . . further example primitive Christians, to the of the and for the ease of the Every Creation, week, day, first People of the the Lord’s called labour, shall from abstain their and usual common toil and That Masters, Parents, Children, Servants, they whether may or the better dispose Scriptures home, themselves to read the' of truth at or fre-

488 of the operative an element is made God

reproach frequently are labor Prohibitions of offense.52 “carefully persons that all shall coupled with admonitions Piety, pub and Religion to Duties apply, themselves 53 compre . and are found . . lickly privately and blasp prohibit also codes which hensive ecclesiastical church,55 or support lay taxes for the hemy,54 divine services.56 compel attendance at may religious worship abroad, as best sute quent meetings of such persuasions.” respective their 52 pro provides: shal of 1656 “Whosoever The New Code Haven by part it, Day, either sinful servile phane the Lord’s or wilfully, by otherwise, work, sport, or whether unlawful recreation or duly fine, punished by imprisonment, neglect, shal be or a careless sinn, according the nature and measure of and corporally, satisfying examination, upon clear and But if the court offence. proudly, presumptuously, and with evidence, find that sin was authority high against and the known command hand committed despising reproaching person, God, such a therein of the blessed may death, all fear and shun Lord, put be others shal provoaking 15: 30 to 36 verse.” Rebellious courses. Numb. from such pub Plymouth Colony And see the act of 1671 is similar. law “deny Bay Colony 1647, by the moralitie lished in the among other heresies and is branded fourth eommandement” Laws and Liberties Massachu punishable made banishment. setts, 1929), (reprinted 24. 1648 1700; Hampshire, North Massachusetts, 1692. See also New II, 7, patterned c. Carolina, These are Charles 1741. statutes supra. quoted in text at note (atheism). 1649; Virginia,

54 Maryland, 55 cf. Almighty Maryland, 1692, for the God “An Act Service Religion within this Province.” the Establishment of the Protestant Laws, in the statute set forth Acts See Connecticut Compulsory 1750; 1762; Massachusetts, church- Georgia, England from before the in the Colonies dated attendance laws New century. 1650 of the See Code of middle of the seventeenth 46; Colony’s (1822) Bay act and the Court of General Connecticut Massachusetts, published and Liberties Laws (reprinted 1929), 20.

489 But even the seventeenth century legislation does not an exclusively religious show preoccupation. The same Pennsylvania speaks law which suppression of the atheism Sunday also ordains rest “for the ease of the and Creation,” shows solicitude that as as servants, well their masters, may day be free on that to attend such spiritual pursuits they may wish.57 The Rhode Island Assembly 1679 enacted:

“Voted, complaint Whereas there hath been made sundry persons being minded, pre- evill have 57 51, supra. See note object, compulsion This latter not the conscience but the Sunday liberation of all individuals from labor and Sunday they might worship disturbance so that God as their own dictated, was, period, consciences infrequently put at one not forward justifying as the purpose Sunday Ambs, of the laws. State v. 20 214, George (1854); George, Mo. 218 27, (1866); v. 47 N. H. 34 People, Lindenmuller 548, (N. 1861) v. Sup. Ct., ; Barb. Y. Commonwealth, Johnston (1853). Pa. As the habits preoccupations and people of the changed, it themselves was but a step reasoning short recognition from this Sunday to the laws purpose providing serve the peace leisure and favorable to the pursuit aspirations, religious secular, whatever various individu may supra. als emerging choose. See text at note Sensitive to popular new desires, legislatures needs reshape were later to by complex patterns laws exceptions permitting numerous which, according original recreational activities far from with the puritanical inspiration day acts, precisely of the Lord’s were those games sports legislation severely which colonial most condemned. See, g., Virginia, 1610; e. Connecticut, development 1668. The evolving these exceptions briefly 124-131, is discussed in text at notes infra; product may its Appendix opinion, post, be seen in II to this p. significant point itWhat to note at this is that con tinuity history continuity which marks the laws is a enduring changing enduring both of social demands. The feature apart, day has been man’s community repose: need set persistently, continuingly this he has changing demanded. The fea way ture has been the spend day. which he choosesto his The need “Body recognized which the Pennsylvania of Laws” in 1682 was *58 necessity more than labor, in servile employ to sumed mens’ alsoe hire other servants, their and requireth, day first to labor on the and sell them servants if any That .... . . it enacted the week: . bee his or hire employ servants shall person persons or servants, any man’s servant or other employ and shall be to labor as aforesaid and set them [he penalized].” by Luther, expressed see note different than that both the same and Sunday legislation century 20, supra, twentieth accom- and that which is recurrent time when the common It the need a con- modates. demands, working and there is a the week cease to make their cerns of community general finds is to the the individual peace that —whether beach, country, the church, home, at the or at baseball it at the at game. Colony of Rhode Island and Providence Planta 3 Records of (1858), The tions, 30-31. first Rhode Island law 1678-1706 dispensing of prohibiting alcoholic was an enactment of Sunday. is beverages preamble Its this: consideringe granted Assembly King us “Voted, this that the hath liberty any Collony to in this are be molested in that not peace, consciences, are and wee their who not disturbers of civill flourishing government loyalty most with perswaded are that a civil liberty by any propagated corporall may be best where of conscience any body, to and power not obstructed that is not unchastness indeavoringe any by body doeinge body, a neither soe to not hurt to worship although any can be to doe; wee know man not forced and any holy keep holy day; but forasmuch keep to or not to God or for dayes weeks, parents masters not to as first it is usuall for and dayes, upon as other and some imploy their children or servants government, accountinge as a not under such it others alsoe that are tipplinge and unlawfull spare time, spend it in debaistnes or and soe abhominably wantonness, practiced games most there English to to at such times resort townes. that live with those any Assembly, oppose propagate worship, but Therefore, this to or not parents although debaistnes, know masters or by preventinge wee any by violence, under their to force cannot and are not indeavor govornment, any worshipper worshipp, that is not from peace, they require but are to the civill debaistnes disturbant they they compelí prevaile, not if should them, if will can half Sun eighteenth In the latter century, of concern for the day giving while still evidence laws, they tend no “immorality” practices prohibit, theolog in the form of longer prefixed by preambles to be appears community, ical it to be the treatises.59 Now by Sunday labor. Deity, rather than the which is offended refers to the Lord’s longer New York’s statute of 1788 no commonly called day, but to “the first of the week Sunday.” they display preambles appear, Where do duplicity Massachusetts Act of 1792 purpose. begins: *59 Day

“Whereas the observance -of the Lord’s is highly promotive a community, of the welfare of affording necessary seasons for relaxation from labour and the cares of business; for moral reflections and conversation on . . . ; public the duties of life for private and worship Maker, of the Governor and Judge world; charity and for those acts of support society: and adorn a Christian And whereas thoughtless irreligious persons, some and inattentive to the duties and benefits of the Lord’s Day, profane by unnecessarily the same, pursuing worldly their day, business and recreations on that to their own great damage, members of Christian them debaistnes, inhuman, not to doe what is or uneivill or not to frequent any company practices.” imodest 59 Jersey, Delaware, (this See New 1798: 1795 does statute recite purpose that “profane” day); its is to deter those who the Lord’s Hampshire, (these were, however, New 1785 and 1789 acts recom congregations). mended to be read ministers to their It is true Pennsylvania that the prevention statute of 1794 is an act the immorality Jersey of and that the New “An statute of 1790 is Act promote Religion Morality, suppress the Interest of and and for ing ,” very . of Vice . . but even these enactments show a different legislation See, g., tenor than that of earlier in the same e. Colonies. 1682; Pennsylvania, Jersey, New 1693. 60Compare legislation New York’s of well-disposed great disturbance society; to the (cid:127) community, damage the great and to persons, immoralities manners and dissipation by producing of life ...” is similar.61 of Vermont

An enactment history legislation significant More English statute before the Virginia. Even compelling laws had had Colony that II, Charles labor.63 forbidding Sunday worship and attendance at adopted Williamsburg at Convention In the General “ alia, all ... inter providing, Rights, a Declaration of religion, free are entitled exercise equally men ,” . . . of conscience according to dictates compelling church of Parliament year same acts de in belief were punishing deviation attendance tax for exempted from the dissenters were void, clared levy and the church, the established support of later came the battle suspended.65 Eight years was tax leadership Madison’s the Assessment Bill. over Under religion freedom of wrote supporting entire the forces Virginia establishment, quietus definitive was Establishing Religious Bill for Jefferson’s Freedom in 1786: enacted *60 mind Almighty

“I. God hath created the Whereas attempts by temporal all to influence it free; 61 Sabbath, An 1 Laws to enforce the due observation of the Act (1808) of Vermont 275. 62 Colony in Vir law that of 1610. For earliest was Divine, (1612), in 3 ginea Britannia, and Martiall Lawes Morall (1844), II, Force, Relating to the Colonies North America Tracts Hening, 1 This was an Act of 1623-1624. 10-11. followed id., Virginia (1823), 123. And see at 144. Statutes of 63 post, p. important Appendix opinion, I to The most See this Virginia 1705, Hening, 1 statutes are those 1629 and Statutes of 144; Virginia (1823), 358. (1823), Hening, Statutes Virginia (1821), 109, Hening, 111-112. Statutes of 65 Id., at 164. incapacitations, or or civil punishments burthens, meanness, hypocrisy and only beget tend to habits of author Holy of the departure plan and are a from the body and Lord both of being of our who religion, byit coercions propagate to . . . mind, yet chose not do; to Almighty power was his either, on as legislators rulers, and impious presumption themselves ecclesiastical, being who civil as well assumed uninspired men, and have but fallible others, setting up their over the faith of dominion only true thinking and modes of as the opinions own endeavouring impose and as such infallible, and maintained others, them on hath established and and world, of the religions greatest part false over the time; magis- all . . that to suffer the civil through . opinion, his powers trate to intrude into the field of propagation prin- and to or profession restrain ill is a dan- ciples supposition tendency, of their enough . . . that it is time for the gerous fallacy, government, of civil for its officers rightful purposes out overt acts principles interfere when break into that truth against peace good order; finally, herself, if left to .... great prevail and will “II. Be it enacted . . . That man shall be no frequent support any religious or wor compelled shall be place, ministry whatsoever, or nor ship, in his burthened enforced, restrained, molested, or account body goods, or nor shall otherwise suffer on men opinions belief; or but that all of his to main profess, by argument shall be free to and that tain, opinion religion, their matters of affect diminish, enlarge, the same shall no wise capacities.” their civil In amplitude spirit this bill breathed the full inspired the First and this Court has looked Amendment, *61 Virginia Hening, (1823),

66 12 84-86. Statutes 494 history Virginia to the surrounded bill,

to the signification on gloss as a enactment, its Board Everson v. in opinions See the Amendment. Vir for the bill was drafted Education, 1. The 330 S.U. Statutes of the Revised as No. 82 Legislature ginia o Wythe by Jefferson Assembly to the returned n provided: Bill No. 84 of the Revision 1779.67 June found Sunday shall himself be any person “If calling, or any trade or at his own or other labouring in slaves servants or apprentices, his employ shall ordinary in except it be business, or other labour, daily necessity, other work offices of or household ten shall forfeit the sum of necessity charity, or he . . shillings . .”68 in Assembly by Madison presented

This bill was in Apparently and was enacted 1786.70 neither 1785,69 regarded nor James Madison it as Thomas Jefferson 67 (Boyd 1950) 305-324, Papers Jefferson 545-553. of Thomas ed. story Revision, Autobiography, in see Jefferson’s For (Memorial 1903) 62-67; Writings I Ran I of Thomas Jefferson ed. seq. dall, (1858), 202-203, 208, Life of Thomas 216 et Jefferson 1950) (Boyd Papers ed. 555. The bill of Thomas Jefferson Punishing Religious Worship “A Bill for Disturbers of was entitled: any Breakers.” It also forbade the arrest for civil cause and Sabbath engaged public preaching any gospel while minister of any any religious worship church, punished person performing congregation maliciously any worshipping or mis who disturb should original minister therein. There is evidence to attribute use 314-321; any event, Jefferson, id., we provision at draft of every revisers, that, with the other he studied and reworked know Writings Autobiography, in I until it satisfied him. bill the revision (Memorial 1903) ed. Thomas Jefferson Virginia, Delegates, House of Commonwealth of Journal of the (1828), 12-14. Oct. wording Virginia Hening, (1823), 336. The

70 12 Statutes of slightly reported passed from that of the bill the statute as differs the revisers.

repugnant religious freedom. Nor did the Virginia legislators years who thirteen later reaffirmed the Bill for Establishing Religious Freedom as “a exposition true of the principles of the rights bill of and constitution,” by all repealing they laws which deemed inconsistent with it.71 The Sunday law of among 1786 was not those repealed.

IV. Legislation currently in in forty-nine force fifty States illegalizes on Sunday some form of conduct lawful if performed on weekdays.72 In only several States one or a few activities are banned —the sale of alcoholic hunting,74 beverages,73 barbering,75 pawnbroking,76 trad- 71 2Shepherd, Virginia Statutes (1835), of 149. 72Appendix II opinion, to this post, p. Only Alaska has no legislation. such Delaware, See Iowa, Wyoming. Many States which have Sunday broader provide special statutes also regulations for the sale of Sunday. intoxicants on Significantly, even those who have assailed Sunday the ban on labor as an unconstitutional establishment assert the constitutionality Sunday of alcohol control. See, g., Lewis, e. History A Sunday Legislation Critical (1888), ix. They point contemporary to the justification prohibition for the liquor day: greater sales on that danger use abusive of alcohol during a time virtually when persons all Admitting are at leisure. cogent there are also contemporary Sunday reasons for a labor ban, they assert history that the Sunday legislation labor reveals legitimate that these reasons are not those which in fact underlie it. But the Sunday roots of deeply alcohol control early are as bedded in Sabbath anti-tippling Sunday statutes as are those of labor laws in Lord’s acts. See the Connecticut statute set forth in the Laws, 1750; Acts and Delaware, 1740; Maryland, 1674; Massachu Bay, 1653; setts Massachusetts, 1761; Hampshire, 1715; New New York, 1685. See Eskridge, State v. (1852). 31 Tenn. 413 Indeed, the most severe efforts to prohibitions England enforce were for against centuries tippling. directed Whitaker, See Eighteenth-Century English Sunday (1940), passim; Whitaker, Sunday in Tudor and (1933), passim. Stuart Times

496- jurisdictions thirty-four in automobiles77 —but

ing labor, labor, employment broadly ban or more some two or open sale, or selling keeping or many In of affairs. comprehensive categories these pro- no state-wide having others States, of these municipal activity, of industrial or commercial hibition regu- Most of these ubiquitous.78 are Sunday ordinances and amend- product many are re-enactments lations *63 upon some are built the armatures Although ments. still 74 Many comprehensive bans See North Carolina. States with more Kentucky, g., Connecticut, See, e. hunting. specifically proscribe also Tennessee, Virginia. Mississippi, 75 g., Arizona, e. Colorado, See, Montana. 76Oregon. Michigan, Jersey, Pennsylvania, Rhode Cf. New Island. 77 g., Connecticut, Maine, e. Michigan, Cf., Colorado, Wisconsin. Pennsylvania. 78 specific legislation enabling municipalities Some States have to. (e. g., Nebraska, Dakota), or to regulate Sunday business North (e. g., Michigan, Mississippi, suppress of the Sabbath desecration Island). authority city’s Rhode such is written into a charter. Often g., McGee, (1953), 633, State See, e. v. 237 76 S. E. 2d 783 N. C. question, app. dism’d of a federal 346 U. S. for want substantial given authority regulate or In business 802. some cases charter activity support Sunday regulatiop of that business has been held g., City Dublin, See, e. Hicks v. activity. App. 63, 56 Ga. 191 of found, is (1937). enabling provision it E. no other S. 659 Where virtually Sunday unanimously power enact ordinances held grant municipality. general police power to a exists under the of g., Sumida, (1918); re Theisen v. E. In 177 Cal. 388, 170 P. 823 Mayor McDavid, (1894); Karwisch v. 440, 34 16 So. 321 Fla. of Chevrolet, Inc., City Atlanta, (1871); Humphrey v. 44 204 Ga. City Evanston, Komen v. (1955); 7 402, N. 2d 131 E. 2d 70 Ill. Louis, St. 9, (1926) (subsequently overruled 289 S. W. 838 316 Mo. Inc., Avenue, City Elizabeth v. point); on another Windsor-Fifth parte Johnson, (1954); Ex Super. 187, A. 2d 9 20 Okla. 31 N. J. 106 Mayor Linck, Nashville (1921); v. Tenn. 66, 80 Cr. 201 P. 533 City Gervasi, 429, P. 328 Seattle (1852); v. 144 Wash. 258 Wertz, 622, Smith E. State ex rel. (1927); Va. 114 S. W. (1922). Mary- like the laws they all, are statutes,

of earlier are before Pennsylvania Massachusetts land, As legislation. recently reconsidered cases,79 inus these as con- must be deemed they expressions policy, of state in favor of exceptions their latest-enacted temporary as Sunday motor bans of or severer moving pictures80 widely pres- felt they'reflect In trading.81 all, vehicle shaped old laws are satisfaction ent-day need, whose and new laws enacted. before the Massachusetts statute now sure,

To be still Pennsylvania Maryland, and statutes Court, So do day” call the “Lord’s or the “Sabbath.” But the con- many laws other States.82 seventy There been more than amendments to the Massa have century. opinion Sunday regulation past See the chusetts over the below, 472, prior Supp. 466, 176 F. n. 2. The latest amendments Gallagher bringing in 1957. Mass. Acts to the of suit in the case were 1960, 3, 300, 356, 16, 17, By cc. Mass. Acts c. § §§ Sunday regu chapter 136, general provisions Massachusetts’ legal holidays, lations, applicable part were made to all or of certain *64 g., January first, July fourth, Thanksgiving Day. Pennsylvania The e. in Pa. Laws here was enacted 1959. statute which considered Day 1959, year Lord’s statute No. 212. And the same State’s 540, 278, 1959, 684. was three times amended. Pa. Laws Nos. 27, Maryland Code, provisions which are now its Art. amended Maryland 1959, 232, 534A, Laws cc. 492 to seven times 1959. §§ 236, 248, 503, 510, 715, 811. 80 g., E. 131; 1957, 1959, Tenn. 219. N. D. Laws c. Acts c. g., 1959, 302; 81 E. 1959, 59-295; Fla. Laws c. Me. Laws c. Okla. 1959, p. Laws 82 Oklahoma, Maine, Minnesota, Mississippi, Dakota, North West Virginia. Alabama, Illinois, Indiana, But see New Cf. Missouri. Mexico, Ohio.

Language interpreting Sunday judicial opinions can also be found in O’Donnell v. religious purpose them. statutes which attributes See Colquitt, 449, Sweeney, Weldon v. (1843); 467, 5 Ala. 469 62 Ga. Beaudette, 719, State v. (1879); 44, 45, 122 Me. A. 720 451-452 118 Atwood, Bennett v. (1816); Pearce v. (1922); 324, 13 Mass. 346-348 Somerville, City Brooks, Davis (1864); 118, 91 Mass. 119-121 v. of 498 century does not language

tinuation of seventeenth for which purposes prove itself continuation that these laws, governments colonial enacted these twen- their of the are for which successors purposes know, and modified them. We tieth have retained them White, (1880); 578, Mass. Commonwealth 594, 596 v. 190 Mass. 128 McCarthy, Commonwealth 636, (1906); 580-582, 244 77 N. E. 637 v. Duffie, 43 (1923); Allen 484, 486, 835, 138 E. 836-837 v. Mass. N. Campen, Van (1880); 1, 7-9, 4 N. W. Brimhall v. 427, 431-433 Mich. Price, (1866); 341, Kountz v. 13, (1862); 40 348 22 Miss. 8 Minn. (N. 1811); People Ruggles, Sup. 290, Ct. 8 296-297 Y. v. Johns. Dugan, Commonwealth v. 490, (1849); Sellers 489, 492 18 v. Ohio (1927); Club, Baseball 136, 143, 497, American Pa. A. 499 290 138 (1915); Coleman, Super. 380, 385-386 Commonwealth v. 60 Pa. State, (1886); Parker 476, 477-479, 1 84 S. W. 202-203 v. Tenn. State, 983, (1915). Graham v. 285, 292,183 134 S. And Tenn. W. 985 Co., (1876); So v. Boston & Maine R. 490, see Smith 120 Mass. 493 Commonwealth, ciety 125, the Visitation the Sick v. 52 Pa. 135 constitutionality sustaining (1866). of the Even some decisions preservation justification, part, statutes have found their in the State, State v. (1850); Christian traditions. Shover v. 10 Ark. 259 Barnes, Ambs, Temple ex rel. 22 N. State (1854); 214 v. D. 20 Mo. City Benjamin, Council v. 2 18, (1911); 215 Strob. L. 132 N. W. Varney French, Adams (S. 1848). (1848); Cf. v. 19 H. 233 508 C. N. Gay, 358, (1847). v. 19 But most of these latter decisions Vt. fully conceptions yet day-of-rest from an era were not date when police power did not developed: prevailing the then notions legislatures authority protect from the harm to state a man accord State, Compare Thomasson v. uninterrupted to himself of labor. theory govern (1860) “patriarchal (speaking Ind. Packing g., Co., People e. Klinck ment”) with, 214 N. Y. (1915) six-day-week (sustaining New York’s statute N. E. cases). analogy large majority to the of decisions law constitutionality applying where as laws cases their infringements liberty in issue have possible was not exclusively regarded having an secular function the laws either *65 accommodating the civil needs of the or a function both g., Shuster, former, see, e. State v. community. 145 Conn. As to the State, Rogers App. 722, 4 S. 554, (1958); 145 A. 2d 196 v. 60 E. Ga. State, 241, Carr (1939); (1911); 175 Ind. 93 N. E. 1071 2d 918 v.

499 New example, Legisla- that Committees of the York Sabbath Laws on two occa- ture, considering State’s recommended no century apart, sion's than a twice more ground both times on the repeal laws, of those “any religious issue, laws but partisan did not involve Co., (1958); 302, E. Tinder v. Clarke Auto 238 Ind. 149 N. 2d 808 Levering City (1942); Scott, Ky. 585, 162 Harlan v. 290 S. W. 2d 8 Commissioners, (1919); ex rel. 48, v. Park 134 Md. 106 A. 176 State Justus, (1904); City 447, v. Minn. N. 325 St. 91 98 W. Hoffman 578, (1907) (subsequently DeLassus, Louis Mo. S. 12 v. 205 104 W. Chicago, Burlington Quincy point); v. & overruled on another State Malone, Co., 196, (1912); R. 143 State v. 238 239 Mo. S. W. 785 (1946); Clymer, App. App. 939, More 12 Mo. Mo. 192 S. W. 2d 68 v. Supply Mayor Woodbridge, (1882); 11 v. 25 N. J. Auto-Rite Co. (1957); Robinson, 503, 188, v. C. 135 A. 2d 515 Rodman 134 N. Ricketts, (1876); (1904); State v. 74 N. Bloom 47 S. E. 19 C. 187 Richards, (1853); Wason, v. 2 McGatrick v. 4 Ohio Ohio St. 387 Krieger (1916); (1855); State, 566, P. 566 v. 12 Okla. Cr. 160 36 St. James, Smith, (1921); 184, v. State v. 19 Okla. Cr. 198 P. 879 State (1908); Commonwealth, 197, E. 214 Francisco v. 180 81 S. C. 62 S. Co., (1942); 371, E. State v. Baltimore & Ohio R. Va. 23 S. 2d 234 Wertz, 622, (1879); 15 State ex rel. Smith v. 91 Va. W. Va. 362 W. (1922); Backus, 557, see Stark v. 140 123 114 S. E. 242 Wis. State, (1909). latter, v. 131 Ark. W. As to the see Rosenbaum N. 98 Hurliman, 502, (1917); 123 251, 199 388 State v. 143 Conn. S. W. (1883); (1956); Moore, State A. 767 Richmond v. 107 Ill. 429 2d City Mead, 1217, (1941); v. v. Iowa 300 N. 523 Cleveland 230 W. Bangor, (1895); Rupp, App. Div. 259, 32 A. Matter 33 87 Me. 892 People Moses, 214, 468, (1898); v. 35 E. 53 N. Y. S. 927 140 N. Y. N. Owen, (1893); Moore Misc. 109 N. Y. S. 585 v. (1860); (N. 1908); Easley, Sup. Melvin v. 52 N. C. 356 Y. Ct. (1853). finding Commonwealth, 22 Johnston v. Pa. 102 Cf. the cases long-established usage. v. Commonwealth foundation for the laws in Mohney Cook, Co., Ky. (1882); Louisville Nashville R. v. & Nesbit, (1859); (1855); v. 26 Pa. 342 Commonwealth 34 Pa. 398 Jeandelle, 1859). (Pa. Q. see S. And Commonwealth v. 3 Phila. 509 People People Law, (Spec. 1955); v. 142 Y. S. 2d 440 Sess. N. 1957). Binstock, (Spec. 2d 170 N. Y. S. 2d 133 Sess. Misc. *66 rather regulation economic and health of the activities people day of the on a universal rest,” and that a Massachusetts legislative committee rested on the same Sunday legislation views.84 has supported only been not York, Report State of Legislative New Second of the Joint Com Leg. mittee Law, on Sabbath Y. (1953), N. Doc. 48No. 9. See Report Judiciary, of the Committee on the petition pray on the ing repeal the of the sabbath, &c., laws for the the observance of York, Assembly Docs., (1838). State of New Doc. No. 262 This report, denying any latter religious intention to enforce the duties of conscience, id., 7, regarded at retention of the law as advis able, “Viewing merely the institution, sabbath as a civil venerable age, day from its by usage consecrated as fathers, a of rest the of our by throughout cherished the common consent of mankind Id., nations of Christendom experience . . . .” at 5. “The of mankind necessary has shewn that occasional rest is for the health of laborer ability toil; and for his continued to that ‘the interval of relaxation part mankind, affords to the laborious contributes greatly to the lives, comfort and satisfaction of their both as it time, refreshes them days’ by for the and as it relieves their six labor prospect day always approaching Id., of rest ....’” at 7. The regard Committee importance did as a third consideration of necessity taking temper account of the moral of the Christian majority community, affording of the oppor and of the laborer an tunity Id., to attend church if he so wished. at 6-8. 84“The committee are weekly of one mind as to the need of a preservation of rest strength of the health and of the community, legislation and would therefor recommend to secure right day’s all citizens the of one clear rest in seven. In so far as possible, Sunday weekly day should be rest; maintained as the community, public whenever the needs of the convenience or demand compel Sunday, persons employed labor on given thus should be legal right day. to rest’on some other of the Report week.” Special Joint Revise, Committee to Arrange Consolidate and Relating General Laws . . . Day, the Observance of the Lord’s Leg. Docs., Mass. H. (1907), Doc. No. 1160 similar, 9. For a more expression, Report recent see Legislative Submitted Research Legal Holidays Council and Their Observance, Leg. Mass. Relative Does., (1960), S. No. 525 Doc. 24-25. legislative In the debates on the bill which became the 1959 Pennsylvania Sunday act, charge retail sales purpose by such clerical organizations Day as the Lord’s Alliance, but groups.85 also labor and trade interlocking sections of the Massachusetts Labor Code construct their six-day-week provisions upon premise the basic of Sunday *67 persistently by was opponents, purpose made the bill’s but such a by every was speaker disavowed who favored the bill. 36 Penn- sylvania Legislative Journal, Assembly (1959), 143d General 1137— 1140, 2564-2565, See, g., Walker, 2682-2685. e. the remarks of Mr. id., bill, nothing at 1139: “As I I read this find in it which is of a prompted by nature. The bill is the thousands of letters that we have Pennsylvania, asking all received in the Senate of us to something do for the men and department who work in the women people stores. asking go church; they These are not asking to are day apparent of rest.” It is objections even from the raised by opponents interests, among that various economic them those organized groups, supporting retailers’ and labor were influential in id., especially the measure. See at 2682-2683. 85Jacoby, Day? Remember the Sabbath Nature and Causes —The Changes Sunday of the (Dissertation in Observance Since 1800 Sociology, Microfilm, University Pennsylvania Library (1942)), pp. 137-140, 147-148, 154-155, 9; 200-202, Kirstein, c. Stores and 19-21; (1950), Unions York, Report State of New Second of the Legislative Joint Law, Leg. Committee on Sabbath N. Y. Doc. No. 48 (1953), seq.; Report 16 et Unpaid Special of the Commission to Investigate Relating . . . the Laws to the Observance of the Lord’s' Day, Leg. Docs., Mass. (1954), 6; Pennsylvania H. Doc. No. 2413 Legislative Journal, Assembly (1959), 1139, 143d General 2553. See Sunday Business resolution of the 1959 and 1960 Conventions of the Association, (Feb. National Retail Merchants 41 Stores 6-7 1959); (Feb. 1960); supra. 42 Stores 13 Frequently and see note 40 legislation closing given establishments of a product trade is the lobbying seeking efforts quash associations of traders competitive pressures which force unwanted labor. See Gun Motors, Inc., daker Gassert, Central 71, v. 23 N. J. 127 A. 2d 566 (1956), app. dism’d for want of a substantial federal question, 933; Breyer State, U. 103, S. (1899). 102 Tenn. 50 S. W. 769 But Sunday Observance, Hearings see before the Subcommittee on Judi ciary of the Columbia, Committee on the District of House of Representatives, on Cong., R. 7189 and H. R. 69th 1st H.

rest.86 have similar laws.87 Penn- Other Statés When sylvania pictures excepted motion were from the Lord’s day-of-rest-in-seven pic- clause for motion statute, exempting into the statute to personnel ture was written (1926) (labor groups oppose Sunday legislation sup- Sess. and trade ported faction). religious pro- primarily Increasingly, the clerical ponents Sunday legislation their have themselves come to couch arguments hygienic transcendental, social, in terms of rather than Gilfillan, Light Reason, values. See The Sabbath Viewed in the Revelation, History (Am. 209-227; 1862), Floody, ed. Scientific (2d McMillan, 1906), 311-315; Basis of Sabbath and ed. Weekly Rest-Day (1927). Influence of the on Human Welfare Ann., 1958, Mass. Gen. Laws c. 51. Section §§47 provides:

“Whoever, except request employee, requires at the an employee engaged any occupation commercial or in the work process subject following industrial not to the section or *68 transportation Sunday work of or communication to do on the usual occupation, during days work of his unless he is allowed the six next ensuing twenty-four labor, pun- consecutive hours without shall be fifty dollars; ished a fine of not more than but this and the follow- ing allowing any Sunday section shall not be construed as work on not otherwise authorized law.” provides:

Section 48 “Every employer engaged carrying of labor on manufactur- ing, workshop mechanical mercantile establishment or . . . shall every person exceptions: employed allow . . . §§49, see [with 50] manufacturing, such mechanical or mercantile or work- establishment shop twenty-four rest, at least consecutive hours of which shall include period comprising eight an unbroken the hours between o’clockin morning evening, every and five o’clock in the seven consecutive days. employer operate any manufacturing, No shall such mechani- cal workshop or mercantile establishment or on unless he has complied fifty-one. with section . .”.

Section 51 is: operating Sunday, every employer subject

“Before to section forty-eight post conspicuous place premises . . . shall in a on the containing employees required schedule a list of his who are or allowed Sunday, designating day to work on of rest for each. No

503 fill gap.88 closing law, Puerto Rico’s which limits the weekday hours of commercial establishments as well as proscribing their operation, express does not religious purpose.89 Rhode Island and South Carolina now portions enforce Sunday employment their bans through respective Departments their It Labor.90 cannot be fairly denied that the institution of Sunday as a occupations time whose and atmosphere differ from days those of other of the week has now been a por- tion of the American cultural scene since well before the Constitution; many people millions of life has a rhythm hebdomadal in which day, this with all its particular associations, is the recurrent repose.91 note of history Cultural establishes not a few practices pro- hibitions origin which are retained as secular employee required shall be or allowed to work on the of rest designated for him.” Note the through evolution of these sections 1907, 577, Mass. Acts c. codified in the 1909, Labor Code of 1909, 514, Mass. Acts §52; c. 1913, Mass. Acts 619. c. 87 Stat., See Ill. 1959, c. 48, Rev. 8g; Ann., 8a to N. H. Rev. Stat. §§ 1955, 275.32, 275.33; 161; N. Y. Wage §§ Lab. Law Ore. and Hour § Comm’n (1959), Orders (1952), Nos. 8 (1953), CCH Law Lab. Rep., State (1960), pp. Laws 57,561, 57,562, 57,564. Cf. West’s Ann., Wis. Stat. 1957, 103.85. Ann., And see Purdon’s Pa. Stat. § 1952, 43, Tit. § 88Purdon’s Ann., Pa. Stat. Supp., 4, Tit. 60. See also § Stat., Me. 1954, 134, Rev. 41; Sunday c. Act, 1932, Entertainments § V, (1) & 23 (a). Geo. c. Ann., 1955, Cf. P. R. Laws Tit. § *69 295. § 89P. Ann., 1955, R. Laws 33, Tit. 2201. Cf. Colo. Ann., Rev. Stat. § 1953, 27-1-4; Laws, R. I. Gen. 1956, § 5-16-5. § 90R. Laws, 1956, I. §§ 25-1-6, Gen. 25-1-8; Code, 1952, C. S. 64, Tit. 5. See also Mullis Corp., v. Celanese § 234 S. C. (1959). S. E. 2d 547 91 Mead, See The Pattern of Leisure in Contemporary American Culture, 313 Annals of The Academy American of Political and Social (Sept. 1957). Science 11-12 sanctions ways long religious aftér their and

institutions In considera- light of these gone.92 are justifications and non- that no substantial reasonably it be said tions, can many examples might be found in Frazer’s Among the murder, The Bough, and Golden see his discussions of incest Golden 107-117; Magic Taboo Bough (3d ed., reprint 1951), II The Art Ain. instances in the 218-219. For other classic the Perils of Soul and (Anchor ed. fields, Weston, see From Ritual to Romance various 81-100; the passim, especially Murray, “Excursus on 1957), Gilbert Harrison, Tragedy,” in Themis Forms Preserved in Greek Ritual Leighton, (1946), (1912), seq.; The Navaho 341 et Kluckhohn and (3d 162-163; Religion Capitalism Mentor Tawney, and The Rise of 1950), passim. ed. Weekly Offices, Report A, Inter- in and

See Rest Commerce Conference, Sess., Geneva, (1939), 2: national Labour 26th downwards, “Sunday laws, rest from the Fourth Commandment religious intention, seeking always been social as well as have provide periodic daily opportunity for rest from toil as well as an religious Among weekly-rest legislation of the the observance.” Organization’s many surveyed by nations the International Labor system provide pertinent reports, the most is to for a uniform common 71-74; usually Sunday. id., passim, especially day, See, at rest (1), Weekly Offices,Report VII International Rest Commerce and passim, (1955), espe- Conference, Sess., Geneva, Labour 39th weekly cially tendency the rest 24r-26. “This to ensure that at by is taken time all workers on the established at same namely purpose, enable has an obvious social tradition custom community part in the in the life of the and the workers to take days.” Id., special are available on certain forms recreation which weekly rest, Commenting practice of at 24. on the world-wide “Quite originated reporters practice as a observe: often ILO developed per- religious into a tradition which has observance and original despite disappearance reasons or the decline sisted by religious part played institutions in the social structure. early stage very this was backed civil At a observance today be found in constitutions law and even traces of this can often regulations many codes, municipal by-laws and in civil closing concerning opening hours of countries commercial legislation main- has other establishments. Labour endeavoured light practice needs of extend this in the economic tain and Id., society at . . . .” modern *70 social to well-ordered relevant purpose

ecclesiastical Sunday restrictions? life exists for legis- day of were the if a rest however, that urged, It is it take some other would statutes to secure purpose, lative activity Sunday.93 Such on prohibition than form day’s for one labor provide would statutes, argued, it is Gallagher that the Mas in case believed The District Court regarded reasonably be as a day not statute could sachusetts Lord’s first, exceptions allowed day-of-rest its extensive provision, because days and, second, Massa many persons seven a week because to labor twenty-four consecutive providing has statutes chusetts other Ann., 1958, every days. c. rest seven Mass. Gen. Laws hours of terms, express provisions, however, their to 51. These latter 47§§ two supplant, prohibitions. The supplement, not do the six- other: the existence of objections to extent answer each some for, of the justified by, provides the deficiencies day part and in law day-of-rest legislation. But, event, in day Lord’s statute day-of-rest legislation. It day merely is com is not Lord’s statute persons who, for reasons mon-day-of-rest legislation. To certain Legislature, share by the cannot compelling Massachusetts deemed activity cease, can even day simply not all in this common because — day physical rest. Code least assures a Labor at —the Weekly in Commerce and Compare in Rest the conclusions found Conference, Sess., 39th Report (1), Labour Offices, International VII large majority of may Geneva, (1955), 52. be noted that a It Sunday restrictions also thirty-four having comprehensive States provisions in their or child-labor codes six-day-week labor some have post, p. opinion, regulations. Appendix II to this See Court, concluding Lord’s the Massachusetts The District origins in religious legislation, of its took account day statute is language language of Massachusetts laws, of its colonial statutory permitting it, exceptions cer- applying of the in cases courts and, in some activity only hours in the afternoon recreational tain worship, and state- cases, designated places of distance from at pre- indicating that amici had an interest in an brief ments amicus history venting Sunday. implications The the secularization already language been herein. statutory discussed have below, by the court adverted to opinions in the Massachusetts cases that the Massa- establish are insufficient the latest decided to the the choice of the stoppage seven, leaving *71 day fix a common individual; or, alternatively, would of day Monday Tuesday. But, in all rest on some other — fairness, impossible it to call unreason- certainly, be would legislative finding suggested able a that these' alternatives closing A unsatisfactory. provision day’s were for one per week, option every particular enterpriser, at the of might be disruptive of families whose members are employed by enterprises.94 might different Enforcement be more difficult, both because violation be would less easily discovered and because such a law would not be sec- as is onded, Sunday legislation, by the community’s moral temper. one-day-a-week More important, laws do not accomplish all accomplished Sunday is laws. They provide only periodic physical not that rest, atmos- phere of entire community repose Sunday has tra- ditionally brought and which, legislature might reason- ably is necessary to the believe, welfare of those who for legislation applied chusetts prohibit Sunday in 1960 opera- to supermarkets tion of purposes lacks substantial secular and effects. See note validity applications of pos- of the statute infra. sibly exceptions affected the afternoon-hour presented; not now say exceptions sufficeto legislation that these do not render the uncon- entirety stitutional in its or in litigation. circumstances this purposes, And the amici, course, views and intentions of cannot be legislature attributed State Massachusetts. 37, supra.

94 Seetext at note Report Cf. Unpaid Special' of the Investigate Commission to Relating . . . the Laws to the Observance Day, Leg. the Lord’s Docs., Mass. H. Doc. (1954), No. 2413 9: “The wave of is sweeping country materialism which makes it important most day worship, one be set aside rest and to give persons strengthen an opportunity all the bulwark of our American civilization —the Compare Report home.” Weekly on the Rest-Day in Employment, VII, Industrial and Commercial Report International Conference, Sess., Labour 3d Geneva, (1921), 127: requires rest-day “Social custom that the possi same should as far as ble be working accorded family members of the same and to working community class as a whole.” recupera- been accustomed to its many generations have tive effects. jus- deemed to might

The same considerations also be tify single day the choice of as the common when it sacra- many regard labor ceases. For to who do not day special, long- is nevertheless a mentally, it associations, particular temper established whose makes provide. a haven that no other could The will of a majority community, legislative reflected process during years, presumably prefers scores of to take Sunday.95 its The spirit people expresses leisure on in goodly past. measure the links it to its heritage which *72 of this Disruption heritage by regulation which, a like the unnatural labors of shipwrights, Claudius’ does not week, might prove divide the from the a measure ill-designed community repose to secure the desirable for Sunday legislation At all designed. events, Maryland, Pennsylvania, thirty- Massachusetts and like one other States with regulations, similar could reason- ably so find. Certainly, from failure to make a substitu- tion for securing socially a desirable surcease subjection from to labor and routine a purpose cannot be derived to establish promote religion. question before the Court these cases is not During fifty years Sunday new one. a hundred and laws have been attacked state and federal courts as disre- garding constitutionally separa- demanded Church-State tion, or infringing protected religious freedoms, or on the ground they subserved no end legitimate within the compass legislative power. One California court in 1858 held California’s Sunday statute unconstitutional.96

95 supra. 92, See note See also the resolution of International Congress weekly rest, 1889, quoted 40, supra. in note 96 parte Newman, Ex 9 Cal. 502. Justice Field’s dissent in this leading pronouncement constitutionality case has become on the Sunday laws.

508 years Every later.97

That decision was overruled three has question has considered the appellate other court that supportable regulations98 the statutes as civil found 97 parte Andrews, Ex controlling 18 Cal. 678. The California comports only guarantee an constitutional freedom analogue analogue exercise,” to the First Amendment’s “free not an to the “establishment” clause. 98 Hennington g., Minnesota, E. Petit 177 S. 164. Cf. v. v. U. Hing Crowley, Georgia, 703, Soon 299; 163 U. S. v. 113 U. S. City Sumida, In re McClelland v. 388, (1918); 177 Cal. 170 P. 823 Denver, ; 486, (1906) (barbering prohibited) 36 Colo. 86 P. 126 City County Denver, Rosenbaum v. & 530, 102 Colo. 81 P. 2d 760 Dunbar, (1938) (automobile Mosko v. prohibited); sales 135 Colo. (1957) (automobile Walsh v. 172, prohibited); 309 P. 2d 581 sales State, semble; 514, (1927), 33 Del. W. W. 139 A. 257 [3 Harr.] Gillooley Vaughan, (1926) 943, 956, 653, v. 92 Fla. 110 So. 657 Dolan, (cabarets State v. prohibited); 693, and cinema 13 92 P. Idaho Cranston, State v. (1907); 561, (1938); 995 59 Idaho 85 P. 2d 682 Village Chebanse, McPherson v. 46, (1885) 114 Ill. 28 E. 454 N. Voglesong State, (ordinance by police power); held authorized v. State, Foltz v. State v. (1857); (1870); 112 9 Ind. 33 Ind. 215 Linsig, (1916); People DeRose, 484, 178 Iowa 159 N. W. 995 v. (1925) (ordinance 180, closing

Mich. 203 N. W. 95 markets held Berman, In re by police power); 598, authorized Mich. N. W. (1956) (ordinance prohibiting 2d 8 sale of furniture held authorized Dean, by police power); State v. N. Minn. 184 W. Nordstrom, Power (1921); (1921) 150 Minn. 184 N. 967W. (ordinance closing cinema, shows, theater, by police held authorized *73 Theatres, City Hattiesburg, Inc., power); Paramount-Richards v. of Loomis, State v. 271, (1950); 88, 210 Miss. 49 So. 2d 574 75 Mont. Motors, (1925) Gundaker Central (closing halls); 242 P. 344 dance Inc., Gassert, 71, (1956), app. 23 v. N. J. 127 A. 2d 566 dism’d for question, (automobile want of a substantial federal 354 S. 933 U. trading prohibited); People Havnor, 195, v. 149 N. Y. 43 541 N. E. (1896), dism’d, (barbering prohibited); writ of error 170 S. 408 U. Weddington, State v. 643, (1924) (ordinance 188 N. C. 125 E.S. 257 Haase, by police power); State v. App. 377, held authorized 97 Ohio parte Johnson, Ex (1953); 66, 116 N. E. 2d 224 20 Okla. Cr. 201 P. (1921) (ordinance closing 533 cinema and theaters held authorized parte Johnson, Ex by police 77 Okla. Cr. power); 360, 141 P. 2d 599 parte Northrup, Ex (1943) (barbering prohibited); 489, 41 69 Ore.

509 decisions These freedom.99 repugnant not specious civil upon latter-day justifications as are assailed were either religious purposes whose legislation grounds upon it. passed who by judges or concealed overlooked Nicholls, 77 415, (barbering prohibited); State v. Ore. (1902) P. 445 Breyer State, 103, 769 Tenn. 50 S. W. (1915); 102 P. v. 151 473 318, Sopher, 25 P. State 71 Utah (1899) (barbering prohibited); v. Commonwealth, 749, R. Co. v. 93 Va. & Western (1903); 482 Norfolk held operation of railroads (1896) (statute prohibiting 24 S. E. 837 Nichols, 28 Wash. power); State v. police as exercise sustainable Gervasi, 144 429, (1902); City Seattle v. Wash. 628, 69 P. 372 authorized (1927) (comprehensive ordinance found 328 258 P. State, 438, 440, 147 Kreider Ark. 103 police power). also v. See 377-378, Miller, 373, 36 A. State v. 449, (1912); 68 Conn. S. W. 450 Diamond, 857-858, 854, 219 N. W. State (1896); 56 N. D. 795, 796 v. 453, Commonwealth, 445, 449, (1928); 198 Va. Rich v. 831, 832-833 Inc., Homes, (1956). Compare Pacesetter 549, 552, 2d 555 94 S. E. (1960), Holland, Village 247, 163 N. E. 2d 464 South Ill. 2d 18 v. disturbing Sunday activity admitting legislative power prohibit closing with ordinance striking a blanket community, but down justified to be exceptions as too extreme virtually the usual none of this rationale. under 99 (1867); Lane Mobile, Mayor g., Ala. 725 E. Frolickstein v. 40 (issue (1953) not raised McFadyen, 205, 66 So. 2d 83 259 Ala. v. State, Ariz. Elliott v. it); 29 considers litigants; court nevertheless State, 10 Ark. 259 (1850); (1926) (dictum); Shover v. 389, P. 242 340 Koser, parte (1886); Ex State, 476, 1 769 Scales v. Ark. S. W. 47 Atlanta, Mayor 44 204 (1882); Karwisch v. Ga. 177 60 Cal. Johnson, 526 open in Sanders v. 29 Ga. (1871), settling issue left Evanston, City 7 Chevrolet, Inc., 2d Humphrey Ill. v. (1859); corporate non (at applied to (1955) 402, least 131 N. E. 2d 70 (1930); Blair, 863, P. 729 State Kan. 288 130 parties); v. Sabbatarian Amuse Strand (1930); Haining, Kan. 293 P. 952 State v. (1931), Commonwealth, Ky. 48, 2d 321 43 S. W. ment Co. v. liquor (forbidding Bott, (1879) semble; State v. 31 La. Ann. 663 Judge, 132, 1 So. 437 La. Ann. ex rel. Walker v. sales); State (considered (1894) State, 510, A. 405 78 Md. (1887); v. Judefind (1914) (prohibiting State, dictum); Hiller v. 92 A. 842 124 Md. Has, Common (1877); 122 Mass. 40 sports); Commonwealth v. Scougale (1957); Chernock, 384, 145 E. 2d 920 N. wealth v. 336 Mass. dictum); (1900) (considered Sweet, 311, 82 W. 1061 Mich. N. *74 510 this course, ultimately

Of it is for Court to determine guarantees whether constitutional are federal observed But this does mean that undercut. not we are to opinion be of genera- indifferent unanimous Petit, State v. 376, (1898), aff’d, 164; 74 Minn. 77 N. 225 177 S. W. U. Ambs, Weiss, (1906); State v. State v. 125, 97 Minn. 105 N. 1127 W. City Louis, Komen St. (1854); 9, 20 v. Mo. 214 316 Mo. S. 289 W. (1926) bakeries) (closing (subsequently 838 overruled on another Caldwell, semble; In re point); 544, (1908), 82 Neb. W. 133 118 N. City Omaha, Stewart Motor Co. v. 776, 235 N. W. 332 120 Neb. semble; Guys Two (1931) Har (prohibiting sales), automobile from rison, Furman, Inc., Linden 199, (1960); 32 v. N. J. 160 A. 2d 265 People, muller (N. 1861) Sup. (closing v. 33 Barb. 548 Y. Ct. the Duryea; aters) ; (1877) (same); People N. v. 69 Y. 557 Neuendorff Friedman, 75, (1950), app. v. Y. 302 N. 96 N. E. 2d 184 dism’d for McGee, 907; State v. question, want of a federal substantial 341 S. U. 633, (1953), 237 E. app. N. C. 75 S. 2d 783 dism’d for want of a Temple State ex rel. question, 802; substantial 346 federal U. S. v. Barnes, 18, (1911) (closing 22 State theaters); N. D. 132 N. W. 215 Powell, 324, (1898) v. (prohibiting sports); 58 Ohio 50 E. St. N. 900 Kidd, State v. 521, (1958), 167 Ohio St. 2d app. 150 N. E. 413 dism’d for want question, 131, substantial federal 358 U. S. Wolf, 132; 1817); Specht Commonwealth (Pa. v. 3 S. & R. 48 Commonwealth, Bauder, v. Commonwealth v. (1848); Pa. 312 8 City Benja Super. 188 Council v. 424, (1958); Pa. 145 A. 2d 915 min, Richardson, 1848); Xepapas (S. 2 Strob. L. 508 C. v. 149 parte Sundstrom, 52, Ex (1929); S. C. App. 146 S. E. 686 25 Tex. (1888); Sayeg 133, State, 8 S. v. 153, W. 207 114 Tex. Cr. R. (1930), semble; State, 25 Clark S. W. 2d 865 167 Tex. v. Cr. R. Pirkey (1959), semble; 204, Bros. v. Common 319 S. W. 2d 726 wealth, 713, (1922) (issue 134 114 Va. S. E. 764 not raised litigants; Commonwealth, it); Crook court nevertheless considers v. (1927) Bergfeldt, State 593, (same); Va. E. 565 S. v. (1905), dism’d, Wash. (pro 83 P. 177 writ of error 210 U. S. 438 Grabinski, State hibiting barbering); 2d Wash. 206 P. 2d Gallagher (1949). Following the decision in below, case relying Pennsylvania it, Quarter recently Court of Sessions Pennsylvania Sunday held the 1959 retail act sales unconstitutional grounds on the discriminatory arbitrary that its incidence prefer operates Sunday-observing religions. it Common-

511 discharge in the conscientious judges who, tions of own, have sustained the Sun obligations as solemn as our The Court inspired by religious purpose. laws as not day 341 York, in Friedman v. New ignore opinion did not that Carolina, 802; Kidd McGee v. North 346 U. S. 907; U. S. Ohio, Ohio, 131, v. v. 358 S. 132; 358 U. S. Ullner U. question federal dismissing for want of substantial sustaining Sunday laws which appeals from state decisions in objections urged pres to the same were obnoxious I ignore ent cases.100 cannot consensus of view now. Pennsyl Massachusetts and Maryland, The statutes of constitutionally vania which we here examine are not forbidden fusions of church and state.101 Cavalerro, Legal Intelligencer (Phila., Ap. 22, wealth v. 142 519 1960) 1960). (Pa. Q. Pennsylvania im- Another court of first S. Bargain pression shortly thereafter reached the same conclusions. City A., Inc., Dilworth, S. Legal Intelligencer (Phila., U. v. 142 813 1960) 1960). 22, (Pa. appear only June C. P. These to be the two standing Sunday striking laws, as, state-court decisions down religious freedom, century part, in a and a half of violative of litigation. Robinson, (1908), In District Columbia v. App. 30 D. C. 283 validity regula Appeals, recognizing

the Court of as civil while Maryland Sunday closing statutes, tions of modern held 1723 Columbia, inapplicable law obsolete and in the District of religious. largely ground purpose Compare was on the its Myers, 1856). Brunswick- (S. In O’Hanlon v. 10 Rich. L. 128 C. Evans, (D. 1916), Balke-Collander Co. v. 228 F. 991 C. D. Ore. app. dism’d, a Federal District Court sustained Ore 248 U. S. gon’s closing against general that it violated law contentions v. Swann, 1884); (C. freedom. Cf. Swann C. E. D. F. 299 Ark. King, In re (C. 1891). 46 F. 905 C. W. D. Tenn. Appeals challenging as of the Due cases laws violative want of a substantial federal Process Clause were also dismissed for Inc., Motors, Gassert, in Gundaker Central question v. 354 U. S. Pennsylvania, and Grochowiak S. 47. U. not, course, imply opinion legitimacy an This does States, every application Sunday provisions or of all the of all It is true that the Massachu- of the statutes now before this Court. V. in the appellants Gallagher case and

Appellees them, Orthodox applied that, case contend Braunfeld customers, and their Orthodox Jewish Jewish retailers Pennsylvania and the Lord’s statute Massachusetts Clause of sales violate the Due Process Sunday retail act stat- effect, the because, Amendment the Fourteenth religion. their exercise and observance of utes deter the *76 Sunday clos- by compelling runs that the argument The for busi- making retail stores and thus unavailable ing of part week, uses of the shopping ness one-seventh give up them either to the Sabbath these statutes force forego their faith —or to part observance —an essential majority of advantages enjoyed by the non-Sabbatarian They community. point out, moreover, the because prevailing five-day working large propor- of the week of a Sunday day peculiarly profit- tion of the is a population, retail peculiarly able to retail sellers and convenient shoppers. in this. support The records these cases them litigants urge

The claim these assumes a number which aspects. First, they argue any one-common-day- expressed apply setts at times an courts have intention to Massa day temper with chusetts Lord’s statute accordance which Compare language its were historical antecedents enacted. City Somerville, Davis v. Commonwealth (1880); Mass. 128 694 Dextra, Commonwealth 28, (1886); v. v. 143 Mass. 8 N. E. 756 White, Commonwealth v. 578, (1906); 190 Mass. 77 N. E. 636 McCarthy, 484, (1923), Virginia 244 Mass. 138 N. E. 835 with the Commonwealth, Francisco v. cases, 371, 180 Va. 23 S. E. 2d 234 Commonwealth, and Rich (1942), 445, Va. 94 E. 2d v. S. 549 Sampson, (1956). (1867). See Commonwealth v. 97 Mass. 407 Graves, But see Stone (1887). 353, 145 Mass. 13 N. E. It v. enough constitutionality pass upon appli will be time of such reasonably present cations as do not come within the rationale of the Has, (1877), and of Commonwealth decision, Mass. Films, Inc., if and when those cases arise. See Brattle v. Commis Safety, sioner Public (1955). 333 Mass. 127 N. E. 2d 891 daya than their of-closing regulation which selected other appli- in its ipso Sabbath would be unconstitutional facto preferring persons cation to them because its effect creating who economic Sabbath, observe no therefore pressures urge give up usage. which Sabbatarians to their The pressure by Sunday creation of this it is statutes, said, necessary is not so a means to the achievement day-of-rest legislation justify employment ends of as to its weighed against injury religion when Sabbatarian which Six-day-week it entails. with regulation, the clos- ing day choice, urged left to individual as a more reason- able alternative. they

Second, argue that if legitimate even state inter- justify ests against persons enforcement generally of a single day common of rest, the choice of as that rights violates the freedom of the Sabba- tarian minority. By choosing day upon Sunday- observing worship Christians and abstain from labor, statutes are said to discriminate religions. between may practice observer yet his faith and work six days a week, while the observer of the Jewish Sabbath, *77 his competitor, may only during work five to days, latter’s obvious disadvantage. Orthodox shoppers Jewish jobs whose a occupy five-day week have no week-end shopping while day, Sunday-observing Christians do. Leisure to Sunday attend services, quiet and relative throughout their is duration, by assured law, but no equivalent treatment is accorded to Friday evening and Saturday services. Sabbatarians feel power that of the State is employed to coerce their Sunday observance of a holy day; as that the State recognition accords a to Sun- day Christian doctrine which is withheld from Sabba- tarian creeds. All of these prejudices avoided, could be it is argued, impairing without the effectiveness of com- mon-day-of-rest regulation, by either fixing as the rest time some day which is held sacred sect, no or pro- from Sabbatarians which Sunday ban a work

viding from labor abstaining of their on condition excepted, are in lieu alternatives these adopt Failure to Saturday. on is said to Sabbatarians applicable Sunday statutes choice means. an unconstitutional constitute are these statutes means, as urged if, it Finally, is neverthe- they attain, seek to goals to the which necessary value to not sufficient themselves are goals less the attainment which their disadvantage society justify Sabbatarians. exercise of imposes upon already been dis- these has first of contentions The convincingly history Sunday legislation cussed. may pur- serve other Sunday statutes demonstrates that physical merely one provision than the poses fully com- justify purposes These stoppage seven. day. which choose statutes mon-day-of-rest exception in those who In an favor of urging that day as would not defeat some other sacred observe failure and therefore legislation, ends of unnecessary an an an provide exception such —hence Gallagher Sabbatarians, on unconstitutional —burden excep- point to such appellees appellants and Braunfeld thirty-four jurisdictions which twenty-one tions selling employment labor or the banning have statutes Sunday.102 in less than half of goods Actually, exemption extend to twenty-one these' States does Wisconsin, which does not have general ban on Sunday- trading labor, prohibiting on that but does have a statute automobile conscientiously day, exception in of those who also makes an favor Supp., Ann., 1961 observe the Jewish West’s Wis. Stat. Sabbath. (3) (a) jurisdictions having 218.01 21. Other statutes cover § only provide Sabbatarian one or a few enumerated activities no Special Acts, 59-1650, local-option exception. Fla. Laws c. *78 applicable Orange County, shop-closing to' does contain such statute Michigan excepting exception, an there are similar clauses and barbering auto-trading general bans as well as to attached Ann., Vol., 18.122, 9.2702. laws. Mich. Stat. 1957 Rev. §§

515 rea- There are tenable as to labor.103 activity as well sales an to make such not might choose legislature awhy sons within who come persons extent To whatever exception. activity community, their in a present are exception rein- general repose atmosphere of disturb the would the week. tempos Sunday the business troduce into with violations more difficult, would be Administration police days or more effect, two and, evident less 103 York, Jersey, Missouri, New New Massachusetts, Kansas, In Washington, and Dakota, Texas, Island, Dakota, Rhode South North not cover Maine, exception does probably in Connecticut Hain State v. 21-953, 1949, Ann., goods. Kan. Stat. sale of Gen. § Ann., 1958, ing, (1930); Laws 853, 952 Mass. Gen. 131 Kan. 293 P. Has, Common (1877); 122 Mass. 40 Commonwealth 136, 6, v. c. § Starr, Commonwealth (1887); v. 359, 11 wealth v. N. E. 533 144 Mass. Ann., Kirshen, (1907); Mo. Stat. 151, E. 2 Vernon’s 194 Mass. 80 N. McKinney’s Y. 171-4; N. 563.700; Ann., 1953, 2A: 1953, N. J. Stat. § § Friedman, People 75, 96 N. E. 302 N. Y. Laws, 2144, v. Pen. Law § question, federal (1950), want of a substantial app. dism’d for 2d 184 Adler, Y. S. People v. App. 301, 160 N. 907; 174 Div. 341 U. S. cf. 1960, Century Code, activities); (manufacturing N. D. (1916) 539 work (shops, mechanical Laws, 1956, 11-40-4 12-21-17; I.R. Gen. § § 13.1710; Tex. Code, 1939, Vernon’s places, etc.); D. compact S. § 1959, §9.76.020, Code, 284; 1952, Code, Art. Wash. Rev. Stat., Pen. (1949); Conn. Grabinski, 603, 206 P. 2d 1022 State v. 2d 33 Wash. 134, Stat., 1954, c. Rev., 1958, § 53-303; Me. Rev. § 44. Stat. Gen. (1906). The 1127 Weiss, 125, 105 N. W. Cf. State v. 97 Minn. Ohio, Michigan, Nebraska, Okla Kentucky, Indiana, exemption in selling, in the but Virginia extend to Virginia does homa, and West employ may other exempted person not an two named States last Ann., 1956 Sunday. Burns’ Ind. Stat. persons not of his belief Stat., 1960, § 436.160, Cohen Ky. 10-4301; Rev. Vol., Replacement § Ann., (1917); Webb, Mich. Stat. Ky. 1, S. v. 192 W. Detroit, City (1), Builders Assn. v. Vol., 18.855, 18.856 Rev. §§ semble; Stat., (1940), Neb. Rev. 272, W. 677 295 Mich. 294 N. 3773.24; Ann., 1954, Page’s 28-940; Rev. Code Vol., Ohio § Reissued § Krieger State, Cr. 12 Okla. 21, 909, Ann., 1958, Tit. Okla. Stat. § 18.1-359; Vol., Replacement Code, (1916); 566, § 160 P. 36 Va. meaning of [6073], The 61, 8, 18 1955, Art. Ann., c. W. Va. Code § Stat., 1959, is not clear. c. Illinois, Rev. provision in Ill. § *79 516 demand for the retail If it is assumed one.

instead of Saturday equivalent approximately is items consumer he is as Sabbatarian, proportion Sunday, and on severe, less competition hence the numerous, and less advan competitive a exception through the incur might in a then be would non-Sabbatarian, who over the tage discrimination complain to presumably, position, wished to avail who Employers religion.104 his against only employ to have exception would of the themselves be introduced might there co-religionists,105 their an element of reli employment practices private into regard could legislature a differentiation gious undesirable.106 a might cause consideration which a relevant

Finally, for observers of reject exception to lawmakers State’s of such that administration than is day another inquiry religious into may require judicial provision if all that A could conclude legislature belief. is an absti- exemption for the qualify requisite made would be day, there on some other from labor nence closing on his enterpriser an from prevent nothing advantage of the whole of to take business day, slowest (5th 1935-1936); H. Deb. 492 L. ser. 311 C. 101 H. Deb. 430 104 See 1935-1936). ground some state courts have even (5th On this ser. City discriminatory. exceptions invalid as held Sabbatarian Kislingbury (1874); v. Treasurer Shreveport Levy, v. 671 26 La. Ann. 1932). (C. Plainfield, 798, P. See State 160 A. 654 10 N. J. Misc. reserving (1949), Grabinski, 603, P. 2d 1022 2d 206 33 Wash. State, (1881), However, 78 Ind. 332 question. in Johns v. exemption was sustained. 105 18.1-359; Vol., Code Code, Replacement W. Va. See Va. § 1937, [6073]; Act, 1 Edw. 1955, 61, 8, Factories Ann., c. Art. 18§ VI, VIII & 1 c. Geo. § employment Pennsylvania have fair and Massachusetts Both hiring. Purdon’s practices prohibiting discrimination acts 963; Supp., Mass. Gen. Laws Ann., Tit. Pa. Stat. §§ 151B, Ann., 1958, 1 to 10. c. §§ converting thereby trade, week-end profitable day-of-rest-in-seven into ban, effect,

Sunday labor All left to the individual. with choice statute, this con seem to reflect exempting statutes of the state claiming person that a require Ten of them sideration. *80 sanctity “conscientiously” believe exception as day observe another “conscientiously” day another day another keep that he Five demand the Sabbath.107 as “holy time.” ^[108] Three allow the exemption only to another society observing “religious” members of a day,109 membership such proof for provides and a fourth three or of preacher the certificate of society by some In Illinois the claimant must observe adherents.110 prove must Jersey and in New he “Sabbath,” as a day Con day that he devotes exercises.111 demanding conscientious of the necticut, jurisdictions one the benefit in addition that he who seeks belief, requires file a of such belief with exception of the notice prosecuting attorney.112

107 Michigan, Connecticut, Indiana, Maine, Massachusetts, Ne Virginia, Virginia. statute braska, Ohio, Texas, Wisconsin’s West similar. 108 Oklahoma, Dakota, York, Dakota, Wash New North South ington. 109 Kentucky, Kansas, Missouri. 110Rhode Island.

111 currently inop Jersey excepting appears statute to be This New recently held general has been labor erative. State’s ban pro by retail sales impliedly repealed the enactment of a 199, Inc., Furman, 160 Guys Harrison, 32 N. J. hibition, Two from terms, not excepting provision, Its does (1960), and the A. 2d 265 Sunday selling extend Sabbatarians. (1956), Berman, 598, 75 N. 2d 8 And see In re 344 Mich. W. exception determining posture under a conscientious-Sabbatarian himself, operated clos who one of a Sabbatarian owner of three stores through Saturdays Sundays, the other two ing opening on and closing Sundays. Saturdays agents, opening difficulties practical administrative Indicative consistently with attempts effect, arise in may exception Sunday closing legislation, an purposes observing Sabbath, persons conscientiously another Shops Act, 1950,113 are of 53 the British provisions § Shops (Sunday Trading continuing § substance 7 of Restriction) Act, product These 1936.114 were the experience exemptions with earlier forms of which had proved unsatisfactory,115 the new 1936 provisions were a,nd only after rejection enacted the consideration of a proposed number They shops alternatives.116 allow VI, 113 14 c. 28. Geo. V & 1 VIII, 26 Geo. Edw. c. 53. 115Principally exemption the Jewish in the Hairdressers’ and (Sunday Act, Shops Closing) V, 35, Barbers’ 20 & 21 Geo. c. (5th 1935-1936); 3. See H. L. Deb. ser. 311 H. § C. *81 (5th 1935-1936). Deb. ser. The repealed 502 1930 act was the Shops Act, 1950, Eighth although VI, 28, Schedule, 14 Geo. c. 67 of § the provisions latter continues prob act similar for The Scotland. special Sunday regulation lem of for population the Jewish had century. involved Parliament at least since turn of the Sections 47, Factory Workshop Act, 1901, VII, 48 of the and 22, 1 Edw. c. permitted employers exemptions pro Jewish certain from that act’s Sunday employment hibition of of women and children. The terms exemption Act, are 1937, altered the Factories 1 Edw. VIII VI, 67, Report & 1 Geo. c. 91. See also from the Select Committee § of the Closing House Lords on the (Shops) Bill [H. L.] 71-83, (1905), 142-147, 153-157. 116Among provision these permitting any shopkeeper was a Saturdays London to Sundays. to elect close on instead of See 311 (5th 1935-1936). H. C. Deb. 447-461 exemption ser. The Jewish provisions strenuously provisions 7 were the most debated § Shops (Sunday Restriction) Trading Act. See 308 H. C. Deb. 2188-2192, 2202-2203, (5th 1935-1936); ser. H. L. Deb. (5th 263, 270, 1935-1936); 427-434 447-461, ser. 311 H. C. Deb. (5th 1935-1936). recognized inadequacy 478-507 ser. exemption part responsible was in for the special provisions act’s (§8) area, for the London English where the bulk of the Jewish trad ing population Id., does at 2087, 2090-2091, business. 2103-2104. registered are under the section and which remain which 2 m. Saturday open p. closed on to for trade until on Sun- day. registration must contain a decla- Applications shop occupier “conscientiously objects ration that the on religious grounds carrying on trade or business on the any person Jewish Sabbath,”117 who, procure registration, “knowingly recklessly or makes an untrue statement representation,” subject or untrue is to fine imprisonment. upon representations Whenever made to them the local authorities find reason to believe registered occupier that a person not a of the Jewish religion objection or “that a conscientious grounds ... is not genuinely held,” may the authorities particulars furnish the case to tribunal established after consultation with the London Committee of Depu- ties of the British if in Jews,118 tribunal, their opinion occupier person is not a religion Jewish genuinely does not objection hold conscientious trade on the report Jewish shall so to the local Sabbath, authorities; upon report this occupier’s registra- tion is to be Surely, light revoked.119 of the delicate statutory prescribed by See the Shops Regulations, form 1937, O., 1937, 271, (a) S. R. & (b). No. Schedules IV and IV 118The constitution Day of the tribunals for Jews and for Seventh (see infra) procedures Adventists note and the of the tribunals prescribed by are Shops Regulations, O., 1937, S. R. & 271, Reg. 4, (Procedure No. Shops Tribunals) and the for Jewish Regulations, 1937, O., 1937, S. R. & No. 1038. provisions problems Other indicate the intricate of administra exemption (3) tion which the provides raises. Section 53 that in the *82 shops occupied by ease of partnership company application or the exemption religion of the majority is determined the of the of the partners (5) prohibits occupier or directors. shop Section the of a registered exemption for the keeping open any shop from other on Saturday, prohibits any person statutory and who has made a declara objection purposes registration tion of conscientious for from work ing in, employing any person in, being or other concerned in the employs any person in, control of a firm which shop open other problems provisions enforcement to which these bear witness, legislative Sunday the choice of a blanket ban applicable to observers of all faiths held cannot be unrea- legislature might sonable. A reason find that alter- the exempting native of Sabbatarians would impede operation Sunday effective statutes, produce harm- ful effects, entail, collateral a not inconsider- itself, able intrusion into matters of faith. However preferable, personally, might one deem such an exception, I cannot find that the compels Constitution it.

It cannot, therefore, be said that Massachusetts and Pennsylvania imposed gratuitous have upon restrictions persons activities of observing the Orthodox in achieving legitimate Jewish Sabbath secular ends at which their statutes may aim. The remaining question is whether importance public to the of those ends is sufficient to outweigh the upon restraint religious exercise of Orthodox practicants Jewish which the restriction entails. See Prince v. Massachusetts, 321 U. S. 158; Cox v. New Hampshire, 312 U. S. 569. The nature of legislative purpose is the preservation of a traditional institution which assures to the community a time during which the mind body are released from the demands and of an distractions increasingly mecha- competition-driven nized and society. right to this Saturday. Compare Berman, supra. In re note (9) Subsection permits registration cancellation of the any shop application at the occupier, provides registration but shall not be cancelled within upon twelve months of the date application regis for made; tration (10) was precludes and subsection the same occu pier’s again registering shop exemption. (12) Section 63 exception provisions makes the applicable as well to members of religious body regularly observing the Jewish Jews, Sabbath as to provides persons that for such the function served the case of Jews by the London Deputies Committee of of the British Jews shall be body served appears “such Secretary to the repre of State to ” persons. sent such *83 small enter- by by release has claimed and been workers centuries, over especially by merchandisers, retail prisers, in contemporary expression legislation three- finds injury quarters of the States. The nature of the which against disadvantage must be balanced it is the economic enterpriser, consumer, to the and the inconvenience to the Sunday regulations impose upon those who choose of their faith. adhere to the Sabbatarian tenets place These statutes do not make do not under criminal, of civil is disability, any onus or criminal act which itself prescribed by the duties of the other Jewish or religions. They do an create undeniable financial burden upon the observers of one of the fundamental tenets of certain a burden creeds, which does not fall equally upon other forms of This was true observance. of the tax which this Court held an unconstitutional infringement religion of the free exercise of in Follett v. McCormick, Town 321 U. S. 573. But unlike the tax Follett, impose burden which the statutes anis incident only means feasible to achievement of their particular goal. again Follett, And unlike measure of the by burden is not legis fixed determined beyond lative decree, power of the individual to alter. Upon persons who earn their livelihood activities not prohibited on Sunday, upon jobs require those whose only a five-day week, the burden is not considerable. Like the customers of Crown Super Kosher Market in the Gallagher case, they are inconvenienced their shopping. This hardly is to be an injury assessed as of preponderant weight. constitutional The burden on retail sellers com peting with Sunday-observing non-observing retailers is considerably greater, But, minimizing without fact of this disadvantage, legislature may have con cluded that severity might its be offset industry and commercial initiative of the individual merchant. More is demanded of him, admittedly, whether than sacrifices, material or of labor of additional

form *84 his keep Sabbath. choose do not those who demanded in a State him, course, demanded would be More his com- laws and which Sunday no there were which Harrison-Allen- Guys from “Two chose—liké petitors In view days a week. seven do business town” —to must be which interests community importance of by wrought disadvantage is the balance, in the weighed impermissible an Sunday statutes non-exempting freedom? the Sabbatarian’s imposition upon during question has considered Every court This it is not.120 half has concluded century and a York, S. 341 U. in Friedman v. New so concluded Court consti- determining the criteria basis of 907. On the as a desire might what one opposed as tutionality, cannot contrary conclusion policy, legislative matter of be reached.

VI. unconstitutionality urged are grounds of Two further in the chal- selection upon cases, all these based or excluded in, activities included lenged statutes of the 120 (1867); Mayor Mobile, Scales v. 40 Ala. 725 Frolickstein v. Haining, 853, 952 (1886); Kan. 293 P. State, State 131 47 Ark. 476 v. (1877); Has, Commonwealth (1930); 122Mass. 40 v. Commonwealth Weiss, (1957); State Chernock, 384, 145 E. 2d 920 v. Mass. N. v. 336 Louis, City (1906); St. Komen v. 125, 105 N. 1127 97 Minn. W. (1926) (subsequently on another 9, overruled 316 Mo. 289 838 S. W. (County 265, Ct. Fass, Super. 162 A. 2d 608 point); 62 N. J. State v. (1950), People Friedman, 75, 96 N. E. 2d 184 1960); 302 N. Y. v. 907; question, 341 U. S. app. substantial federal dism’d for want of a (Sup. 340, Ct. Silverberg Douglass, 114 N. Y. S. 824 Bros. 62 Misc. v. Specht (Pa. 1817); Wolf, & R. 48 v. 1909); 3 S. Commonwealth v. City Benjamin, 2 (1848); Strob. Commonwealth, Council v. 8 Pa. Richardson, 52, Xepapas 149 C. 146 S. E. (S. 1848); S. L. 508 C. v. Bergfeldt, 41 83 P. 177 (1929), semble; State Wash. v. barbering). (prohibiting (1905), dism’d, S. 438 writ of error 210 U. Judge, 132, 141, Ann. 1 So. 39 La. And see State ex rel. Walker App. (1888). Sundstrom, 25 Tex. (1887); parte Ex cf. if aim argued that, First it is from, the ban. peace repose, secure a of the statutes by their exceptions, and Maryland, laws of Massachusetts by its enumera- Pennsylvania, sales act of and the retail forbidden, operate so tion of the articles whose sale is so little imperfectly in the service of this aim—show they rational relation to it—that must be accounted arbitrary process. violative of due and therefore range extensive of recreational and commercial activity permitted deprive these States is said to statutes of basis. The distinctions drawn reasonably may the laws between what sold be or done may what it is are reason. not, claimed, unsupported *85 Second, argue these claimants that the same discrimina- tions may may sold, between items which not be in persons may some cases between the who and those who may not deprive sell identical items, equal them of the protection of the laws.

Although these contentions require the Court to separately examine particularity and with provisions of each of the three attacked, States’ statutes which are general govern considerations which these cases are the same. It is clear in fashioning rem legislative edies fine distinctions to fit specific range “The needs, of the State’s discretion is large.” Bain Peanut Co. v. Pinson, 282 S. 499, U. 501. This is especially so where, by the nature of subject, regulation its must take account of traditional and prevailing local customs. See Kotch v. Board Comm’rs, River Port Pilot S. 552. U. “The Constitution does not require things which are dif ferent in fact or opinion be treated law as though they were the same.” Tigner Texas, v. 141, 147. S. U. “Evils in the same may field be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. ... Or the may reform take step one at a time, addressing itself the phase of the legislative to the acute most seems problem of one phase may select one legislature mind. . . . the others.” neglecting remedy a there, apply field and Inc., 483, 489. S. Lee U. Optical, v. Williamson Protection Equal nor the Due Process Neither Theatre Metropolis tidiness. logical demands Clause exact finicky or Chicago, S. 61. No City 228 U. Co. v. legisla required is to abstract correlation conformity re if a legislature is satisfied tion. The Constitution it deals. facts with which living sponds practical to the many competing in a field precise points what Through its suitably have drawn might most pressures legislature It judicial re-examination. question lines is not a drawing them satisfy the Constitution enough See disregarded. reason has not been principle degree of And what Cleary, S. 464. Goesaert U. course, is, of a statute uniformity reason demands the statute of the needs which complexity function of the seeks to accommodate. com- Sunday legislation, an extreme

In the case of one of so, first, because plexity of needs is This is evident/ preservation is the prime objectives legislation prod- itself the of an atmosphere desideratum, subtle —a changing uct of a set of local circumstances peculiar and achievement addition, and local traditions. But *86 compromises numerous formulated, of that however end, activity Sunday. must all can halt on be made. Not very operations doings Some of the whose most contribute go throughout to the rush clamor the week must and depends upon that as because life well, them, whether them is stopping restarting because the cost of simply too or because to be without their services great, them disruptive peace would be more than to have Many a aspect: pro- continue. activities have double they viding entertainment or recreation for some persons, entail labor workday tedium for others.121 Cogent expression problems of the intricate which these various countervalent pressures pose given was Mr. in Lloyd the course of the in debate Commons on the English Sunday closing act of 1936:

“. . . should all We like to see shopkeepers and their staffs as far possible in position to observe in a normal way like most people. other On. the other hand, we know that there are certain rea- public sonable needs of the require to be met even on a I Sunday, and think agree we should also all that the fewest possible number of people should give up have to their , order to cater for those public needs. I think we probably should reach a large general agreement measure of on the principle that only shops those should remain open which are essential requirements to meet the public only to the extent that they are essen- tial .... Therefore, the problem is to strike just balance between the reasonable needs of the 121Consider Mr. Loftus’ proposed Shops comments on the (Sunday Trading Restriction) Bill before the House of Commons 1936: “During years great last 20 there very change has been a in the people change habits of our for the better. Vast masses of our —a people, fact, literally millions, go countryside out into on fine Sunday afternoons in the Summer, good health; and that is for their good it is for the body they mind as well as the should do so. Going country they into the . . . have been accustomed to certain way obtaining facilities refreshment, fruit, fresh flowers and vegetables bring home, and it regretted, particularly by would be working classes, if by legislation there was interference stop would tendency those facilities go or check the people of our country into the advantage and to take of the amenities of the countryside. . . . “. . principle . The first exemptions is to frame such as will not unduly ordinary interfere with the peo- health and habits of our ple. (5th 1935-1936). . . .” 308 H. C. Deb. 2159 ser. *87 great desire of reasonable equally

public and trades- to in the distributive engaged those bulk of and recreation. Sunday rest share of enjoy their the crux at once it follows accepted, “If that is and the scope kind lies this Bill of principle general to the exemptions nature of Sunday. . . .”122 closing in the activity activity to from the variation Moreover, entails, and operation Sunday disturbance which degree of flout the to temptation degrees the similar variation various ignore and ability to absorb degrees law, devising of exceedingly make difficult legal penalties, sanctions. fair, schemes of comprehensively effective, yet developed there history of the laws Early in the general pro- adapt to their wide which served mechanisms evolving exigencies and to the practical hibitions both it was found public. desires of the Where concerns and with particular in certain activities tended persons those activities were engage violations, frequency other punishment.123 harsher On the singled out for popular necessary found or convenient hand, practices excepted from the ban.124 Under specifically habits were II, 29 Charles c. English statute, the basic Necessity exception obtained for “Works of general wide 122Id., at 2200-2201. worldly II, 7, punished labor of one’s The statute 29 Charles c. traveling by

ordinary calling by shillings, punished a forfeiture of five twenty shillings, punished a forfeiture of drovers butchers goods. for sale forfeiture of the the exhibition of merchandise legislation similarly provided greater Early fines American colonial g., Sunday activity. See, engaging in than in other e. Dela some Jersey, 1740; 1692; Hampshire, 1700; ware, Massachusetts, New New excep II, The statute 29 Charles c. itself contained several supra. subsequent 16, 18, tions, statutes added others. See notes exempted original Sunday of Constantine in 321 A. D. had edict farm labor.

and Charity”; ^[125] this provision found its way *88 into the all of into and has descended colonial American laws,126 of The effect currently their successors force.127 discre range of been to the courts wide phrase give has can But men determining reasonable exceptions. tion and do differ as to what is “necessity.” ^[128] In every juris- 125 “necessary Henry 5, excepted VI, 27 c. had victual” statute markets; VI, 5 6 Edw. prohibition its of at fairs and & from sales or at 3, exception for labor at harvest e. had contained broad year necessity required. other time in the when 126 supra. g., 68, e. See, quoted in at note Jefferson’s bill text Pennsylvania specific exceptions well: the statute laws made as Other only necessity example, 1705, exempted not works of of landing cookshops, charity dressing watermen but of victuals selling sell slaughtering or fishermen passengers, butchers meat morning summer, before 9 a. m. ing fish in the sale of milk p. m. and after 5 127 places keeping open of business as well statutes ban the Where only frequently apply to the laboring, exception as is worded Dextra, (1886). Commonwealth v. 143 Mass. 28 latter. See 128 State, (1928) (sale Williams 160, 144 745 167 S. E. See v. Ga. Clark, 484, 112 369 Jacobs v. gasoline necessity); is Vt. 28 A. 2d Commonwealth Louisville & Nash (same (1942) necessity); is not v. necessity); Co., Ky.

ville R. (1882) (operating is 80 291 railroad Philadelphia, Lehman, W. & (1881); B. R. Co. v. Md. 209 56 cf. Co., (same Sparhawk Passenger R. (1867) is Union 54 Pa. 401 v. Needham, (1931) State necessity); 155, 134 Kan. 4 P. 2d 464 not v. Mat (distribution necessity); Commonwealth v. newspapers is (same necessity); thews, 152 166, (1893) is not Pa. 25 A. 548 Augusta Renz, (1875) & S. R. Co. (operating 126 streetcar 55 Ga. v. Commonwealth, necessity); (1853) (operat 22 Johnston v. 102 is Pa. State, (1879) (cutting Turner v. ing necessity); 67 Ind. 595 bus is not Goff, (same (1859) is State v. ripe necessity); 20 Ark. 289 wheat is State, (hauling ripe (1877) Wilkinson v. necessity); 59 Ind. 416 not White, 578, Mass. Commonwealth necessity); is v. 190 watermelons Rich necessity); (1906) (picking ripe 77 E. 636 cranberries is not N. Commonwealth, (1956) (where 445, 2d evi 198 94 S. E. 549 v. Va. jury groceries rebutted, can widespread not dence of retail sale James, State v. groceries necessity); 81 is not not find that sale necessity); (1908) (sale 214 of ice and meat is not S. C. 62 S. E. fitter deeming themselves legislatures, presumably diction than acted courts, this sort were decisions of tribunals for or in various against, of, favor question to resolve de- expressly pursuits were activities. Some particular specially or were banned.129 necessity, not clared works Corologos, (sale (1928) A. of con State 101 Vt. v. law, although necessity jury could so fectionery matter of is not Wertz, ex rel. 622, 114 E. 242 cf. State Smith v. find); 91 W. Va. S. Thompson City Atlanta, 281, 172 E. (1922); S. Ga. *89 (1917) State, (1934), and Rosenbaum 251, 131 S. W. 388 199 v. Ark. Williams v. necessity); is not (operation picture of motion theater (1942) (con Commonwealth, 493, 741, 750, S. E. 496 179 20 2d Va. picture necessity); curring (operation motion theater is opinion) of Wason, (1855) (loading ship navi 566 with McGatrick v. 4 St. Ohio Commonwealth v. necessity); gation-closing impending weather is Sampson, (1867) (gathering seaweed which tide 97 Mass. 407 State, necessity); away v. 25 to float is not threatens Hennersdorf (manufacturing necessity); (1888) App. 597, 8 S. W. ice Tex. 926 McBee, 257, (1902) (pumping E. 121 oil is State v. 52 43 S. W. Va. State although find); necessity law, jury matter could so v. not as Ohmer, (1889) (retail sale is not App. of tobacco neces 34 Mo. 115 Commonwealth, sity) Francisco v. ; 371, E. 2d 234 180 Va. 23 S. may necessity). (1942) (jury of beer find retail sale 129 Minnesota, In Petit v. 164, 177 U. S. this Court sustained express arbitrary in against a classification statute which claim .necessity exception works should not provided that terms its barbering. jurisdictions In result was reached include other same Linsig, “necessity” State interpretation v. by judicial of the clause. Kennedy, parte Ex (1916); 42 484, N. Tex. Iowa 159 995 178 W. Sopher, State v. 318, (1900); 71 148, S. W. 25 Utah Cr. R. 58 129 Dextra, (1903). Cf. Commonwealth 28, v. N. 143 Mass. 8 E. P. 482 (1909). Backus, Stark (1886); 557, v. 140 123 N. W. 98 Wis. 756 barbering Sunday in a number prohibiting were enacted Statutes parte Jentzsch, Ex discriminatory These were as of States. voided People, (1896); Eden 296, v. 161 Ill. 43 468, 44 P. 112 Cal. 803 Armstrong State, 188, (1896); v. 84 N. E. 170 Ind. 3 N. E. 1108 Granneman, 326, (1896); (1908); State v. Mo. 784 132 33 S. W. State, Ragio v. 272, (1888), but have been 6 S. W. 401 86 Tenn. cf. City Denver, 36 Colo. 486, sustained. McClelland generally v. Murray, 51, State v. (1906); 104 175 N. W. 666 126 Neb. 86 P.

529 exceptions, giv- series permitted: expressly were Others change, of cultural the course resiliency laws ing the opinion, II this Today, Appendix proliferated.130 half over pattern shows, general post, p. 551, general pro- Broad is similar. England131 States (1894); People Bellet, 151, N. 1094 (1919); People Mich. 57 W. v. 99 dism’d, (1896), writ of Havnor, 195, 541 Y. 43 N. E. v. 149 N. error 360, 141 P. 2d 599 parte Johnson, 408; 77 Okla. Cr. S. Ex 170 U. Breyer (1902); 489, v. parte Northrup, 69 P. 445 (1943); Ex 41 Ore. Bergfeldt, (1899); 41 State v. State, 103, 769 102 Tenn. 50 S. W. Krech, City overruling Tacoma v. (1905), 234, 83 P. 177 Wash. (1896). 296, 46 P. 255 15 Wash. 130 evolving of life may exceptions the habits trace in these One Hogreiver, 652, E. 152 Ind. 53 N. people. Compare State v. prohibiting base (1899), sustaining specifically a statute sustaining (1911), State, 241, N. E. ball, 175 Ind. with Carr general prohibition. excepting statute baseball from excepts VI, from Shops Act, c. Geo. liquor, shop to sell meals general Sunday keeping open of a ban the consumption premises, (whether or not for or refreshments shop), chip excluding chips at a fish and fried fish and sold but waters, chocolates, tripe, newly provisions table and cooked cooked vege flowers, confectionery cream, fruit and sweets, sugar and ice tinned), (other (other tinned), than than milk and cream tables *90 (by registered surgical appliances certain medicines and medical and accessories, cycle supplies tobacco and shops), aircraft, or motor or magazines, books newspapers, periodicals and requisites, smokers’ books, aerodromes, guide stationery bus terminals and at rail and and plates films and and sou photographs, reproductions, photographic galleries, museums, etc., pass specially approved public or venirs at premises games sports photos, requisites or sold on port for horses, mules, etc. Post office sport played, is fodder for where the Schedule.) Fifth Local permitted. (§ is 47 & and funeral business m. for the authority may opening shops before 10 a. permit the grocer’s fish, groceries flour, confectionery, sale of bread and authority may Schedule.) prohibit Local products. (§48 & Sixth premises consumption off the for of meals and refreshments sales Schedule) shops (exempted by in the case of classes the Fifth consumption not a on-the-premises do constitute which sales for (§49.) Where the area part business carried on. substantial of the exemptions, precise by numerous qualified are hibitions State, a within variation for local with provision often more provisions by special bolstered frequently and are regulations The named activities. heavily penalizing are not Pennsylvania Massachusetts Maryland, undoubtedly they are although regard, in this atypical statutory patterns. complex of the the more among many in so provisions of these degree explicitness The adjust- intricacy of the demonstrates jurisdictions How delicate they designed are to make. ments which illustrated, once strikingly can adjustments those be closing of the British by sponsor a remark of the again, modern extensively the most documented bill of per- an amendment which Supporting statute. during authority opening, local to authorize the mitted holiday during authority frequented is a district as a resort local authority may provide year, of the the local order certain seasons designates may open specified shops it of such classes as bathing Sundays (not eighteen per year) to exceed for the sale of fancy fishing toys, articles, photographic requisites, souvenirs and postcards, goods, books, stationery, photographs, reproductions and Schedule.) Special provisions applicable (§ 51 and food. & Seventh opening permit area to authorize the to the London local councils (in regions) shops or some p.2 m. of where street markets before customarily Sunday prior of the shops opened on to the date were case, original act, 1936, where, the councils find that latter “having regard population in the to the character and habits district,” Sunday closing hardship; but if such would cause undue weekday closing day fix exempting made, order is it must some an 54.) may shops. (§ shops, these differ for different classes of for orders, provision for exempting is made In the case of these local 2.) (1), par. plebiscite among shopkeepers (§§52, 54 affected. delivery stores or necessaries excepts further the sale and act goods private arriving departing ships and aircraft and of brought cooking p. m. of food purposes, the before 1:30 clubs for club consumption day, and attendance be customers to cooked *91 upon hotels or clubs therein. upon residents of as a barber invalids 56.) summary digest scarcely suggest complexity (§ can This of the text. frequented in areas shops year, of of the

a portion said: Mr. Loftus resorts, seaside have elastic must this one such as In a Bill

“. . . from demand a unanimous had ... We ity. all the trade representing Fryers, Fish Association be should shops fish-frying asking England, over out them and took agreed and we Sundays, closed selling shops exempts First Schedule [which from heard then we But meals or refreshments]. suppose, I year by, every is visited which Blackpool, others, operatives cotton poor people, millions of fish on of fried cheap meals get who like to there feel and we Sunday evenings, afternoons grant Bill to allow in the provision be some must is difficulty The a case. such exemptions abuse and open to is in a which putting Clause avoid provide provisions two I that there are submit authority must local first that the safeguard. second and the exemptions, granting approve the unless two- authority approve cannot is that the local are locality shops its particular those thirds of no desire that hard Having exemption. favour I would people class poor inflicted on ships should be accept Clause.” ask the House to policy demand relevant considerations Certainly, when must accord to fine, courts so decisions distinctions classify and to power to range of legislature a wide virtually unan unlike their that, It is true delineate. state freedom, issue of imous attitude on the Sunday legislation always have not sustained courts discrimination. charge of unconstitutional against down as arbit have been struck Statutes and ordinances prohibitions constitutional rary or as violative of state 1935-1936). (5th ser. 311 H. C. Deb. 465 State, (1926) (banning enu Elliott 389, 242 P. 340 29 Ariz. general closing distinguishes statute with businesses; court merated

532 greater courts, A far number of special legislation.134

of legislation.135 cases, similar classes of have sustained judicial opinion as to what is rea- very diversity But the of Lawndale, 720, Bocci & Sons Co. v. Town of exeeptions); 208 Cal. Justesen’s businesses); (1930) (exceptions P. for classes of 284 654 City Tulare, (1938) Stores, Inc., 324, 84 Food 12 Cal. 2d P. 2d 140 v. of Deese v. businesses); (closing stores; exceptions food for classes of City Lodi, (1937) 631, (exceptions App. 21 2d 69 P. 2d 1005 Cal. of City Springs, Allen v. Colorado businesses); 101 Colo. for classes of of (1937) 498, (exceptions 75 P. for of businesses and com 2d 141 classes 1952) modities) Antonacci, (Fla. (exceptions Henderson ; 62 2d 5 v. So. Kelly Blackburn, commodities); for classes of businesses and v. 95 So. cinema); City 1957) (Fla. (exceptions newspapers 2d 260 for of Julian, (1938) (exceptions Mt. Vernon v. 447, 369 Ill. 17 N. E. 2d 52 Supply Mayor Wood Auto-Rite Co. v. businesses); for classes of of bridge, (1956), Super. 303, 41 124 A. 612 aff’d on other N. J. 2d grounds, (1957) (banning 188, 25 N. J. 135 A. 2d 515 sale of enumer Sing Astoria, Chan commodities); 411, 155 ated classes of v. 79 Ore. (1916) (closing shops selling P. 378 enumerated classes of commodi Gibson, ties) ; (1943) (excep Broadbent v. 53, 140 105 Utah P. 2d 939 businesses, specified tions for classes of some restricted to sale of City, Lake commodities); Gronlund v. Salt 284, 194 P. 2d 113 Utah (1948) (sales commodities; exceptions with for of 464 ban classes distinguishes statutory banning court scheme all labor and sales with Trahan, exceptions). 100, Cf. State v. 214 36 2d 652 La. So. Arrigo City Lincoln, (1948), 537, 154 Neb. 48 N. 2d v. W. of (1951) holding (exceptions businesses), 643 un for classes of applications particular deemed constitutional statutes discriminatory. 134 City Bach, Denver (1899) (closing 530, P. v. 26 Colo. 58 1089 City Springfield Smith, 1129, businesses); classes of v. 322 Mo. 19 parte Ex (1929) entertainments); (banning 1 S. W. 2d enumerated Ferguson, 145, (1937) (banning 62 Okla. Cr. 70 P. 2d 1094 sale of Hodges, parte Ex commodities) (alternative holding); enumerated (1938) 69, (exceptions 65 of busi Okla. Cr. 83 P. 2d 201 classes McKaig City, Kansas nesses) (alternative holding). Mo. Cf. v. 363 City (automobile 1033, (1953) sales), disapproving 256 S. 2d 815 W. DeLassus, (1907), St. Louis v. 578, 12 205 Mo. 104 S. W. City Louis, (1926). Komen 9, St. 316 Mo. 289 S. v. W. McFadyen, (1953) (banning Lane v. 259 Ala. 66 So. 2d 83 Taylor businesses); merchandising exceptions with for classes conflicting what classification —like the views on sonable “necessity” justify Sunday operations as will is such —tes- question regard tifies that inclusion with rationally and hence judgments differ, bans is one where City (1956) (ordinance Pine Bluff, Ark. 2d 679 S. W. *93 Williams, Hickinbotham v. only business); applied single of class (1956) (banning busi 126, enumerated S. W. 227 Ark. 296 2d 897 parte Koser, Ex nesses); (1882) (exceptions 60 Cal. for classes 177 Sumida, In (1918) (excep re businesses); 388, P. 177 Cal. 170 823 of Hurliman, businesses); 502, State v. Conn. tions for classes of 143 (1956) services, (exceptions A. of activities 123 2d 767 for classes commodities, by persons them on latter to be sold who sell Shuster, (1958) 554, A. State weekdays); 145 145 196 Conn. 2d v. McDavid, (1894) (same); Theisen 440, (except 34 16 So. 321 v. Fla. Dolan, 693, commodities); State v. ing 13 92 sales of classes Idaho of commodities); (1907) (exceptions P. for classes of services and 995 Cranston, (1938) 561, (exceptions for State v. 85 P. 2d 682 59 Idaho commodities); Humphrey Chevro businesses, of classes services City Evanston, let, Inc., (1955) 7 402, Ill. 131 N. E. 70 v. 2d 2d of Supervisors Elec Ness v. (exceptions commodities); for classes of of DeRose, tions, (1932) (unspecified); People 529, 162 Md. A. v. 160 8 (1925) 180, (banning businesses Mich. N. 95 classes of 230 203 W. commodities); People Krotkiewicz, 286 Mich. and sales of classes of v. commodities); (banning 282 N. W. 852

644, (1938) of classes of sales City People’s Inc., Flint, 34, Appliance, W. 2d 358 Mich. 99 N. v. of State commodities); (1959) selling (banning businesses of 522 classes Justus, (1904) (excep ex rel. 447, Minn. 325 v. 91 98 N. W. Hoffman State, 464, Liberman v. commodities); 42 for of 26 Neb. tions classes (1889) (exceptions 419 for classes of businesses and commodi N. W. Caldwell, re ties) (1908) (“common” In ; 544, Neb. N. W. 133 82 118 Somberg, 761, (1925) banned); N. State Neb. 204 W 788 labor 113 v. commodities); (banning of classes of businesses sales of classes Avenue, Inc., 187, City Super. Elizabeth 31 N. J. v. Windsor-Fifth of commodities); (1954) (banning selling of classes 106 A. 2d 9 businesses Mayor Masters-Jersey, Inc., Paramus, 296, N. J. A. 2d 32 160 v. Board commodities); Richman v. (exceptions (1960) 841 for classes Comm’rs, (1939) (banning 180, 4 A. businesses 122 L. 2d 501 N. J. People Friedman, N. Y. commodities, semble); 302 selling a v. class app. 75, (1950), for want a substantial 96 N. E. 2d dism’d 184 businesses, question, (exceptions 907 for classes of federal 341 U. S. Medlin, 682, State activities); 86 commodities, 170 N. C. other v. 534 fair given every must be

where State’s determinations in fact. The re- presumption support of a reasonable regulatory of state scope stricted of this Court’s review long Protection Clause is of legislation Equal under (1915) business, to sale (exception E. class of restricted S. 597 for a Trantham, State v. commodities); N. C. specified 230 classes of 641, (1949) (exceptions 55 E. 2d for classes of commodities S. 198 McGee, businesses); 633, State v. 237 C. 75 be sold classes of N. (1953), app. federal E. 2d dism’d for want of a substantial S. 783 businesses, question, (exceptions for classes of com 346 U. S. 802 Towery, State v. modities, activities); 274, N. C. 79 S. E. other 239 question, (1954), app. substantial federal 2d 513 dism’d for want of a (exceptions businesses, some restricted to 347 U. S. 925 classes of Diamond, State v. specified commodities); sales of classes of (1928) (exceptions for classes of N. D. 219 N. W. 831 Haase, State v. commodities); App. 116 N. E. 2d Ohio State activities); (1953) (exceptions for classes of recreational Kidd, (1958), app. 521, 150 E. 2d dism’d for want 167 Ohio St. N. question, (exceptions for substantial federal S. 132 U. *94 Bauder, Commonwealth activities); 188 Pa. classes of recreational v. 424, 145 (1958) (exceptions Super. A. 2d 915 for classes of recreational City, (1927) Bothwell v. York activities); 363, A. 291 Pa. 140 130 Mayor Nashville v. (banning activities); of classes recreational of Linck, (1883) (exceptions of 80 Tenn. 499 for sales classes com Olgiati, businesses); Kirk 1, 203 Tenn. 308 modities classes of v. parte Ex Sund (1957) businesses); (banning S. W. 2d 471 classes of strom, App. 133, (1888) (exceptions 25 Tex. 8 S. 207 for classes W. Searcy State, commodities); 460, Tex. 51 S. W. 1119 v. 40 Cr. R. Sayeg State, (1899) (exceptions commodities); 114 for classes of v. (1930) (exceptions 153, 25 for classes of com Tex. Cr. R. S. W. 2d 865 modities) City Gervasi, 429, Seattle v. ; 144 P. Wash. 258 328 Grabinski, State v. (1927) commodities); (exceptions for classes (1949) 603, (exceptions for classes of 33 Wash. 2d 206 P. 2d 1022 City County Denver, Rosenbaum & commodities). 102 See also v. Mosko (1938) (banning trading); 530, Colo. 81 P. 2d 760 automobile Dunbar, (1957) (banning 172, P. automobile v. 135 Colo. 309 2d 581 trading); Gillooley Vaughan, (1926) (ban 943, 92 Fla. 110 So. 653 v. City Omaha, amusements); Stewart Motor Co. v. ning classes of trading); (1931) (banning 776, Neb. 235 N. 332 automobile 120 W. 1959) Liquidators, Inc., City, (Mo. ABC v. Kansas 2d 322 S. W. 876 Loomis, (1925) auctions); 88, 344 State v. (banning 75 Mont. 242 P.

535 Co., Lindsley Gas 220 standing. v. Natural Carbonic that a principles are 61, applicable S. 78-79. U. may not be struck down offensive state statute unless it is protection its schemes of classification equal in the case of a that, except obviously arbitrary, without patently statute whose discriminations are so of fact could be found reason that no conceivable situation the statute challenges claimant who justify them, bears the burden of affirmative demonstration operation, of facts which surround its its actual state rationality. lack classifications Mary- applied, first, these standards are to the

When challenged case, appel- land statute the McGowan Equal lants’ claims Process and Protec- under the Due clearly tion Clauses show themselves untenable. Counsel contend that Md. Code prohibition, sales Ann., 1957, Art. its 521, arbitrary § rendered 27, exception drinks, of retail sales of tobacco items and soft g., Motors, Inc., e. (banning, Gundaker Central halls); classes of dance Gassert, 71, (1956), app. v. 23 N. J. 127 A. 2d 566 dism’d for want of (banning question, a substantial federal 354 S. automobile U. 933 parte Johnson, Ex trading); (1921) (ban 66, 20 Okla. Cr. 201 P. 533 Enterprises, Inc., State, ning Consolidated theaters); cinema and v. ). 148, (1924) (banning 150 Tenn. 263 74 S. W. cinema and theaters Statutory provisions punish whose effect was to some activi severely ties more than been State v. others have sustained. Hogreiver, Tinder v. Clarke Auto 652, (1899); 152 Ind. 53 N. E. 921 Co., Murray, State (1958); 238 Ind. 149 N. E. 2d v. Grochowiak, (1919); Commonwealth v. Neb. 175 N. 666W. Super. 522, (1957), app. Pa. A. of a 2d 145 dism’d for want 47; Breyer State, question, substantial Tenn. federal 358 U. S. *95 Mayor Paterson, Sherman v. 103, (1899). 50 S. 769 W. Cf. 82 (1912). sustaining 345, N. J. L. A. state statutes 82 889 For cases People Havnor, applicable some, all, localities, but not see v. 149 State, Bohl (1896); App. 195, N. Y. 43 N. E. 541 3 Tex. v. Township Union, Sarner v. 55 N. J. (1878); compare Super. and Guys Harrison, Inc., Two 523, (1959), 151 A. 2d 208 with from Furman, (1960). 32 N. J. 160 A. 2d 265 fruit, gaso- ice and ice cream, confectionery, milk, bread, products, newspapers periodicals, drugs line and and of by apothecaries and medical supplies the further — exemption County, Anne Arundel under of cer- § tain recreational activities and sales incidental to them— permissibility and under regu- other state and local public lations of various amusements and entertainments Sunday, Sunday liquor beer and and sales, pinball bingo. machines and The short answer is that commodity these kinds of exceptions, and most of these exceptions for amusements can be entertainments, comprehensive found England, statutes of Rico, Puerto a dozen American States, many other countries having uniform-day-of-rest legislation.136 Surely unreason cannot widespread. be so The notion that, with these matters excepted, Maryland statute lacks all rational foundation is baseless. The exceptions products relate to and services which a legislature could reasonably find necessary physical to the and mental health people or to their recreation and relaxation repose. on a activity Other sales and, under Art. all 27, 492, § other labor, are forbidden. That more or fewer activities than fall within the exceptions could with equal rationality have been gen- excluded from the eral ban does not make irrational the selection which has actually been made. presented There is in this record not a trace of evidence as to the habits and customs of population of Maryland or of County, Anne Arundel nothing suggests pattern that the legislation representatives their have devised is not reasonably related to local circumstances determining ways their 131, supra; Appendix See note post, 551; II opinion, p. to this Weekly Offices, Rest in Report (1), Commerce and VII International Conference, Sess., Labour Geneva, 39th (1955), 27-52; Weekly Rest Offices, Report A, in Commerce International Labour Conference, Sess., Geneva, (1939), 26th 82-127. *96 Appellants wholly

life. have failed to meet their burden proof. Counsel for urge McGowan that the allowance, limited to Anne Arundel County, of retail sales of merchandise customarily sold at bathing beaches, bathhouses, amuse- ment parks and dancing violates equal pro- saloons, tection of by the laws both discriminating between Anne Arundel retailers and those other counties, dis- criminating among persons classes of within Anne Arun- County del compete who in sales of the same articles.137 Clearly appellants, who were convicted for within selling the county, would not ordinarily have standing to raise possible issue of against discrimination out-of-county merchants; in any event, on this it record, is dubious that the contention was adequately raised below. Suffice to say, purposes for of the due process issue which appellants did raise, that provision of different Sunday regula- tions for different regions of a State is not ipso arbi- facto trary. Salsburg See v. Maryland, 346 S. 545; U. Missouri Lewis, 31.138 U. S.

As for the asserted discrimination in favor of those who sell at the beach or the park articles permitted not 137It is exception unclear whether the permits here assailed sale of to, merchandise customarily essential at, bathing or sold beaches, bathhouses, etc., only places at those enumerated all county. retailers within the Maryland Since the Appeals Court of question left this open below, construction interpre I assume the tation most appellants’ favorable to claim. 138Many jurisdictions provide have laws some option form of procedure local exceptions. the creation of This only recognize the obvious fact that geo conditions of limited graphical range may be striking determinative in the balance of for permissible bidden Sunday activity pop which best with accords ular habits Maryland and desires. Legislature In the State itself does job adapting general state-wide law to local circumstances. This scarcely difference method can entail different federal consti consequences. tutional such be that must between elsewhere, the answer

be sold mer- general suburban enterprisers and beach-side *97 are there employed at which chandising appellants store of demarcation. The reason is a reasonable line The logic scope. the its exemption dictates human seeking it that legislature persons has desirable found Sunday the conven- recreation on have certain forms of enjoy- items add purchasing day on that ience of could not which, perhaps, to the recreation and ment prior a vacationer to the provided would for or not be policy other the Sunday outing. hand, of his On the distribu- securing number of possible to the maximum might reasonably pre- their off employees tive county in the every retail establishment allowing clude resolution, A open to this convenience. tenable to serve particular only is these sales the surely, permit to items be needed and used. The premises where the will arise permitting which could from problem enforcement open for the sale of these merchandising outlets to general of other for sale of thousands items but not the alone, in itself shelves, might at adjacent items counters exception group justify the limitation to likely less to stock on-the-premises who are merchants amuse- articles extraneous to use of enumerated ment facilities. Gallagher attacked in Massachusetts statute range exceptions again,

case none contains wider but, that this and there- patently record shows be baseless constitutionally impermissible. fore The court below was provisions believed that reason offended such allow, digging those which for but not apparently, clams dredging permit professional or which certain oysters, sports during p. the hours from 1:30 to 6:30 m. while restricting counterparts amateur to 2 their or which make (as statute) Sunday lawful the court below read the pushcart vending by conscientious Sabbatarians, but not Sunday vending within a building. below, But the record on the basis which a federal court has been asked to enjoin statute, enforcement of state contains no concerning clam-digging evidence or oyster-dredging, nothing to indicate these any- two have activities thing more requiring similar treatment— common — than each there is pursuit involved of mollusca. There nothing the record concerning professional or amateur athletic events, certainly nothing sup- port the conclusion that problem regu- pushcarts lation of is so similar problem to the of Sun- day regulation of indoor require markets as to uniform treatment for both.139 These differently various treated may situations be different in fact, they may not. *98 A is statute not to be supposition. struck down on

It is as true, appellees there claim, that Crown Kosher Super may Market sell Sunday not on products which other retail establishments may sell on that day: bread (which may be sold during certain by hours innkeepers, common victuallers, confectioners and fruiterers, and, along bakery with other by bakers), confection- products, ery, frozen desserts and mix, dessert and soda water (which may by be sold innkeepers, common victuallers, confec- fruiterers, tioners and and druggists), (which tobacco may be sold innkeepers, common victuallers, druggists, and regular newsdealers), (The etc. drugs sale of and news- papers is permitted generally.) But although Crown Kosher undoubtedly an suffers element competi- tive disadvantage from these provisions, provisions themselves are not irrational. Their purpose, apparently, permit is to dealers specializing certain products whose distribution on Sunday is regarded as necessary, to sell products those and also such other among the same group ing the sale of Eldorado Ice 139See Shops (Sunday Trading ice cream from a box Cream Co. Restriction) Clark, tricycle Act. ^[1938] without 1 K. B. prohibition hold together with as sold generally are found

of necessaries fostering they thus specialize, products with permitted products of the dissemination maximum required to employees minimum of retail number Shops newsdealers, them. such work to disseminate inmay tend, Massachusetts and confectioners druggists, widely dis- more know, smaller, noisy, all be less for we areas that to them from residential tributed so access other stores. than is case with traveling, entails less may pre- employees. They They may tend to hire fewer products whose sale is specialize sent, they because general problem less of than would permitted, policing Again selling many products.140 other markets these conclusion nothing support is in the record to there has failed to to the Crown that Massachusetts afford equivalent Super Kosher Market treatment which rationally all retailers of a class not enjoyed other prohibition of the distinguishable from Crown. “The goes Protection no further than the invid- Equal Clause say point cannot that that has ious discrimination. We Inc., v. Lee Optical, been reached here.” Williamson U. S.

Nor, McGinley case, on the can other record Pennsylvania be as to the 1959 conclusion reached act. Appellants argue retail sales this case a fine sale—or punish by up per to one hundred dollars *99 per year two hundred dollars sale within one after first selling twenty offense—the of some retail enumerated categories commodities, all punishing broad while other activity by four-dollars-per-Sunday and laboring sales 140 suggested by Consider alternative the ordinance sustained Sumida, requiring (1918), re 170 P. in In 177 Cal. 823 permitted housing prohibited where an establishment both busi former, open nesses remains for transaction of the five- separate foot-high permanent partition or screen must be erected the two business areas. arbitrary day statute,141

fine fixed the earlier Lord’s equal and violative of But the court below protection. his- found, supported by legislative this it is tory of the 1959 act,142 providing the enactment penalties respon- severer sales for these classes of was only sive appearance to the the Commonwealth, shortly large- before the passage, act’s of a new kind of scale diffi- enterprise which, absorbing mercantile without culty a profitable fine, four-dollar-a-week made a business of persistent violation earlier statute. These new enterprises may a disturbing have attracted volume of Sunday traffic; they have may employed more retail sales- under men, and different than other kinds of conditions, in the businesses State; legislators, apparently, some so danger may believed.143 The been apprehended have only that not would these long-standing violations of State legislation continue, but that competition would force open enterprises other years which had for Sun- closed on day. Under this threat the 1959 designed. statute was It applies only not new merchandisers —if that quite so, obviously, were different constitutional prob- lems would arise. it out singles Rather the area where a danger has been made most and within that evident, area treats all enterprises business in so equally. That doing may it have drawn the line between the sale cover, punished by sofa a hundred-dollar fine, an sale of punished automobile seat cover, by a four dollar fine, is not legislation. sufficient to void the “[A] may classify State with pre- reference to evil to be and ... if vented, the class discriminated is or against reasonably might be considered to define from those whom the evil mainly is to be it may feared, properly be

141See Commonwealth, Friedeborn (1886). Pa. A. 160 Pennsylvania Legislative Journal, Assembly See 36 143d General (1959), 1139. id., 1142-1143, See at

542 not matter. picked symmetry A lack of abstract does out. dependent upon experi- a one question practical The is specific symmetry ignores ence. The demand for the to shown to experience supposed is have difference that to the law enough mark It is not invalidate the class. go thing unpunished, do the may others same is danger as a the if, fact, matter of is found it Holmes, the class named.” Mr. Justice characteristic of Pennsylvania, 138, 232 144. Patsone U. S. v. the legislature required to hew Even be less should statutory distinction line of exactness where logical subject merely apart one is which sets offenses challenged differing severity, not one which penalties degrees “Judgment divides from on the lawful the unlawful. armory weapons of the deterrent effect various judg- lay the law little claim to basis. Such can scientific meager .yet largely prophecy ment is based uninterpreted experience. . . . . Moreover, problem

“. . of deterrence whole temper affecting related to still wider considerations community operates. of the in which The traditions law law, of a habits of the effective society, the obedience all mat law-enforcing agencies, peculiarly ness of the are thus within place. They ters of time and are matters Texas, v. legislative competence.” Tigner U. S. appellants in the McGinley, like Appellants 149. had Gallagher have appellees McGowan and cases, opportunity full to demonstrate arbitrariness they this have they challenge. statute On record carry. entirely satisfy they burden which failed York, 907; v. North Friedman v. New U. S. McGee Carolina, Carolina, 802; Towery v. 346 U. S. North Missouri, Cade, S. K. & T. R. Co. U. S. U. 925. Cf. case, comes here in a different however, Braunfeld plaintiffs in their posture. Appellants, below, allege *101 complaint Pennsylvania Sunday amended the 1959 retail sales arbitrary. act irrational and The three- judge complaint court dismissed the amended for failure to state a claim. Speaking myself alone and not for on this I think point, that this was Mr. Justice Harlan summary disposition. too However difficult it may appellants prove be for what they allege, they must be given an if opportunity they to do so choose to avail themselves of it, view the Court’s decisions this series of I cases. remand would No. 67 to the District Court. APPENDIX I

, TO OPINION OF MR. JUSTICE

FRANKFURTER. Principal Colonial Statutes and Their

Continuation Until End of the

Eighteenth Century.

Connecticut:

New Haven Colony: Prophanation

1656: of the Lord’s Day, New Haven’s Settling New England. And Some Laws for Govern- ment (1656), reprinted in Hinman, The Blue Laws (1838), 132,

See also An Prince, Examination of Peters’ “Blue Laws,” H. R. Doc. No. 295, 55th 3d Cong., 95, 109, Sess. 113-114, 123-125.

Connecticut Colony:

1668: Public Records of the Colony Connecticut, (1852), 1665-1678 playing). (traveling, Prophanation 1672: of the Sabbath, Laws of Connecti- cut, 1673 (Brinley reprint 1865), 58.

1676: Public Records of the Colony Connecticut, 1665-1678 (1852), 280. keeping the due Observation, An Act for

See Punish- Preventing, and for Day; Lord’s Sabbath, Acts and same, Prophaneness ing Disorders, Colony of Connecticut Majesty’s English Laws of His An Act for the due Observa- 139; New-England (1750), Acts and Laws of Lord’s-Day, the Sabbath or tion of An Act for the due 213; (1784), State of Connecticut and Laws Lord’s-Day, Acts the Sabbath or Observation of (1796), 368. of Connecticut State *102 Delaware : Day Lord’s An the Breach of the prevent

1740: Act to of commonly Sunday, called Laws of Government (1741), Upon Delaware New-Castle, Kent and Sussex 121. profana- effectually prevent An

1795: Act more 2 Laws commonly Sunday, called day, the Lord’s tion of 1209. (1797), Delaware, 1700-1797 Georgia: punishing Vice, Pro- preventing

1762: An Act For the Lord’s keeping holy and for Immorality, faneness, by the Acts Passed Gen- commonly Sunday, called Day, 1763), 10. (ca. Georgia, 1761-1762 Assembly eral Crawford, Digest of Laws Marbury and See 410. (1802), 1755-1800 Georgia, Maryland : Mary- 1 Archives of Religion, concerning An Act

1649: Assembly), Acts of General (Proceedings and land 244. (1883), 1637/8-1664 id,., at 343. Day, Concerning the Sabboth

1654: Prophaning of the Sabbath against An Act 1674: and Acts of Maryland (Proceedings 2 Archives day, the General Assembly), 1666-1676 (1884), (inn- keepers). An

1692: for Act the Service of Almighty God and the Establishment Religion Protestant within this Province, 13 Maryland Archives of (Proceedings and Acts of the General Assembly), 1684-1692 (1894), An

1696: Act Sanctifying keeping holy & the Lord’s Day Comonly called Sunday, 19 Archives Maryland (Proceedings and Acts of the General Assembly), 1693- 1697 (1899), 418.

1723: An punish Act to Blasphemers, Swearers, Drunk- ards, . Sabbath-Breakers . . , Bacon, Mary- Laws of land (1765), Sf2.

1See Dorsey, General Statutory Mary- Public Law of land, 1692-1839 (1840), 65. :

Massachusetts

Plymouth Colony:

1650: Prophanacon Day, the Lord’s Compact with the Charter and Colony Laws Plymouth (1836), New *103 92. Id., 113

1658: at (traveling). 1671: General Laws of New Plimouth, Ill, c. 109,§§ in (1672), id., at 247. Bay Colony:

Massachusetts 1653: Sabbath, Colonial (re- Laws of Massachusetts printed from the edition of 1672 supplements with the through 1686) (1887), (traveling, sporting, drinking).

1668: For the better Prevention the Breach of the Sabbath, id., at 134. An

1692: Act for the better Keeping Observation and the Lord’s Acts His Day, Majesty’s and Laws of Province New-England, in in Charter Massachusetts-Bay

of the Massachusetjts-Bay New-Eng- in Province of the the [sic]), 13. (1759 land several Laws now An for the Repealing Act

1761: Lord’s-Day, of the Observation relate Force which for due effectual Provision making more and for id., at 392. thereof, Observation Provision for Making An for More Effectual Act 1782: Day . . . Acts and , the Lord’s Observation of the Due (reprinted 63. Massachusetts, 1890), Laws of for Observation providing An Act the due 1792: (1801), Massachusetts, 1780-1800 Day, 2 Laws of Lord’s 536. Blakely, set forth in American also act of 1629

See (4th 1949), ed. Religion Freedom rev. Papers State at 29-30. Hampshire:

New Keeping An Act for the better Observation 1700: Acts and Laws Passed General Day, the Lords New-Hampshire Majesties of His Province of Court 1886), 7. New-England, (reprinted Inspecting, Supressing An Act for the 1715: id., Houses, (innkeepers). at 57 Disorders Licensed An and Keeping 1785: Act the Better Observation Hampshire (First New Consti- Day, the Lords Laws of Period), tutional 1784-1792 (1916), An Act for better 1789: Observation of Lord’s . , id., . . at 372. An Act for better 1799: observation of Lords *104 (Second , Hampshire . . . 6 Laws New Constitu- Period), (1917), 592. tional 1792-1801 Jersey: New Learning

1675: Concessions and Spicer, Grants, Original New-Jersey Constitutions of the Province of with Acts during Proprietary Passed Governments (ca. 1752), 98. id., Against

1683: Lord’s at 245. prophaning Day, 1693: An Act for preventing Profanation the Lords id., Day, at 519.

1704: An for Suppressing Immorality, Act 1 Nevill, Acts of the Assembly General of the Province New- Jersey, 1703-1752 3. (1752),

1790: An Act to promote the Interest of Religion and and for Morality, suppressing of . . , Vice . Acts of the Assembly Fourteenth General State of Jersey, New c. 311 (1790), 619.

1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800), 329.

New York:

1685: A Bill against Sabbath breaking, Colonial Laws of York, New 1664-1775 (1894), An against

1695: Act profanation Day, of the Lords id., called Sunday, at 356.

1788: An Act suppressing immorality, Laws Newof York, 1785-1788 (1886), 679.

North Carolina:

1741: An Act for the better observation keeping the Lord’s day, commonly Sunday; called and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142.

548

Pennsylvania: Laws, of Charter Body Law or The Great

1682: Pennsylvania, 1682-1700 of the Province and Laws of 1676-1682) Laws, Book of of Yorke’s Duke (with the 107. (1879), (A Liberty of Conscience Concerning The Law

1690: id., at 192. Law), First Right, Petition of 2 Liberty Conscience, of Concerning The Law 1700: 3. Pennsylvania (1896), Large of at Statutes Labor on the from People to Restrain An Act 1705: id., at 175. Day Week, First Im- Vice and Suppression Act 1779: An 333. Pennsylvania (1903), Large at morality, 9 Statutes Vice and Im- for the Prevention An Act 1786: Pennsylvania Large of 12 at morality ... Statutes , 313. (1906), and Im- of Vice the Prevention

1794: An Act for Pennsylvania Large 15 at morality . . Statutes , . (1911), Island:

Rhode Island and Colony of Rhode 2 Records of 1673: (alco- (1857), 1664-1677 Plantations, Providence beverages). holic Island and Colony of Rhode Records of

1679: 3 (employ- (1858), Plantations, 1678-1706 Providence servants). ing and Labours on Prohibiting Sports Act An

1679: Majesty’s His Week, Laws, Acts Day of the First and Providence-Plantations Colony Rhode-Island (1730), 27. Aug. Island Acts and Resolves,

1784: Rhode (1784), (excepting societies; members Sabbatarian exception but does not extend to opening shops, etc.). mechanical compact places, work An Act prohibiting Sports 1798: and Labour on the *106 Day Week, first Public Rhode-Island and Laws (1798), Providence Plantations 577.

South Carolina: An

1692: Act for the better Observance of the Lord’s commonly Day, called 2 Statutes at Sunday, Large of Carolina (1837), South 74. An Act for

1712: the better observation Lord’s commonly id., called at Day, Sunday, 396. Grimke,

See Public Laws of South-Carolina (1790), 19. Virginia:

1610: For the Colony Virginea Britannia, Lawes Divine, Morall and (1612), Martiall 3 Force, Tracts Relating to the Colonies America (1844), North. II, (gaming). 1 Hening,

1629: Statutes of Virginia (1823), 144. Id., 1642-1643: at 261 (traveling, shooting).

1657: The id., Sabboth to bee kept holy, (travel- at 434 ing, shooting, lading).

1661-1662: Sundays not to bee profaned, Hening, Virginia Statutes of (1823), 48.

1691: An act for the more effectual suppressing the severall sins and offences of swaring, profaineing cursing, holy name, Gods Sabbath abuseing, drunkenness; fforni- cation, and adultery, Hening, Virginia Statutes of (1823), 71. suppression vice, act An for the effectual

1705: punishment blasphemous, wicked, restraint and id,., at 358. persons, dissolute Religious An punishing act for disturbers 1786: Statutes of Worship breakers, Hening, Sabbath 336. Virginia (1823), Sunday laws were English

In some of the Colonies the g., Martin, also in e. Collection of the See, effect. Stat- England (1792), in Force in utes of North-Carolina *107 II TO OPINION APPENDIX OF MR. JUSTICE

FRANKFURTER. Important Analysis Sunday State Statutes Currently in Force. This Appendix sets forth the important legisla- state provisions currently tive force prohibiting or regulating private activity on Sunday. reducing In these often com- plex laws tabular form, certain has simplification been required. Provisions different States which are found in a single g., e. category, “Trade Beverages,” Alcoholic may differ “Racing,” considerably detail. This Appendix does not include references to: (1) provisions declaring Sunday holiday or non-business day; (2) pro- closing visions the courts on Sunday or prohibiting the service of judicial process day; on that (3) provisions giving government various Sunday employees off or excepting Sunday days from the of labor pris- for state oners; (4) penalty sections where parts laws are general regulatory e. codes, g., game fish and laws; jurisdictional (5) provisions or provisions authorizing arrest and on Sunday detention against offenders various laws, unless these of special are interest; (6) definition provisions, statutes limitation of and similar prosecution, ancillary provisions. *115 Douglas, dissenting.*

Mr. Justice question day The is not whether one out of seven can imposed by day question be a as a of rest. The State not whether can force of custom and habit be retained as a question of rest. is whether impose State can criminal who, sanctions on those unlike majority the Christian up society, makes our wor- ship on a different day or do not share the religious scruples of the majority.

If the “free exercise” of religion subject were to reason- able as regulations, it is under some constitutions, ifor all “.respecting laws religion” establishment of were not I proscribed, could understand how men, rational representing a predominantly Christian civilization, might think these Sunday laws did not unreasonably interfere with anyone's free exercise of religion and took step no toward burdensome establishment religion. But that is not the premise from which start, we there is agreement that the fact that a State, and not the Federal Government, has promulgated these laws does not change scope power asserted. For the classic view is that the First Amendment should applied be to the States with the same firmness as it is enforced against the Federal Government. See Lovell v. Griffin, 303 U. S. 444, 450; Minersville Gobitis, District v. 310 U. S. 586, 593; Murdock v. Pennsylvania, 319 S.U. 105, 108; Board Barnette, Education v. 624, U. S. 639; Staub v. City Baxley, 355 313, 321; Talley U. S. v. opinion applies This Guys also to No. Two From Har * [Note: rison-Allentown, Inc., McGinley, v. Attorney, Lehigh District County, Pennsylvania, al., et post, p. 582; No. al. et Braunfeld Brown, Commissioner Police Philadelphia, al., post, p. 599; et 11, Gallagher, No. Police Springfield, Massachusetts, Chief of et al. v. Super Crown Kosher Market, Inc., al., et post, p. 617.] statement explicit 60. The most

California, U. S. Barnette, supra, Education v. was in Board perhaps *116 impor- it is arguments parties “In of the weighing clause of process the due distinguish to between tant an for Fourteenth Amendment as instrument First Amendment transmitting principles of the its own sake. applied and those cases which it is for with the Four- legislation The test of which collides with the it also collides Amendment, teenth because definite than First, is much more principles of is involved. Much only the test when the Fourteenth vagueness process disappears of the of the due clause First its specific prohibitions when the of the become regulate, a right standard. The State may include, so far as example, public utility well all process concerned, power impose the due test is legislature may of the restrictions which a have adopting. speech 'rational basis’ for But freedoms of press, assembly, worship may and of and of not be infringed grounds. They on such are sus- slender ceptible only prevent grave of restriction danger may immediate to interests which the State lawfully protect. important It is to note that while it is directly the Fourteenth Amendment bears upon specific prin- the State it is the more limiting ciples of the First finally govern Amendment that this case.”

With that my starting I point do not see how a State can make protesting doing citizens refrain from innocent acts on Sunday because the doing of those acts offends sentiments neighbors. of their Christian

The institutions society of our are founded on the belief that authority there is an higher authority than the State; that there is a moral power- law which the State less to alter; that the individual possesses rights, con- Creator, ferred which government must respect. now familiar stated the Independence The Declaration theme: all self-evident, Truths to that

“We hold these be they equal, Men are created are endowed their with certain Rights, Creator unalienable Life, Liberty, these are and the Pursuit of among Happiness.” body

And Bill as well as the Constitution Rights enshrined those principles. shape

The Puritan helped influence our constitutional and our has law common law as Dean Pound said: The Puritan “put individual conscience and individual judg- ment first place.” Spirit Law Common (1921), p. For we these reasons stated Zorach *117 Clauson, 306, 313, religious 343 U. S. are a people “We Supreme whose institutions presuppose Being.” a But those who who fashioned the First Amendment decided that if and served, when God is be His to service will not by government. be motivated coercive measures of “Congress shall make no law an respecting establishment of religion, prohibiting or the free exercise thereof” —such is the of command the First Amendment applicable made by to the State reason of the Due Process Clause of the This I means, Fourteenth. as understand if that it, reli- gious leaven is to be worked into the affairs our people, of to by it is be done individuals and groups, not the Gov- ernment. This necessarily first, means, that the dogma, creed, or scruples, practices of religious no group or sect to preferred any are be over those second, of others; that no one shall government be interfered with by for prac- ticing third, of religion choice; his that may the State require anyone not practice religion to any or even reli- ; fourth, gion that the State cannot compel one toso conduct himself as not to offend religious scruples of another. as I idea, understand was to limit it, power government of act to religious (Board matters of Board Barnette, McCollum v. supra;

Education of freedom limit the not to Education, 203), S. 333 U. freedom restrict the nor to religiously act men to religious agnostics. or of atheists have to government commands Amendment

The First govern- it admonishes ritual; or theology no interest to freedom religious in allowing interested ment to be Jews, Catholics, produce is to the result flourish —whether path people toward or to turn Protestants, or nation, or Moslem in a predominantly to end Buddha, or mat- On agnostics. atheists or long in the run produce free- This must be neutral. government kind ters of this right with the religion includes freedom plainly dom from antireligious and advocate write, publish believe, speak, Barnette, supra, Education v. Board programs. require not exercise” clause does Certainly the “free of some some church or theology everyone embrace majority practices faith, or observe the its “estab- Amendment minority sect. The First by gov- the selection prevents, course, lishment” clause plainly the ban church. Yet ernment of an “official” in Everson v. Board said extends farther than that. We “estab- Education, it would be an 1, 16, S. U. if financed one religion lishment” of a the Government way to church or churches. For what better several than find the fund that “establish” institution an protects clause support will it? The “establishment” *118 any religious against any citizens also law which selects government custom, practice, ritual, puts or the force a it, imprisons, penalizes behind and or otherwise fines, person plainly for not it. The observing Government join religious group could not with one and decree forces a symbolic universal and circumcision. Nor could it require all tax baptized give exemptions children to be or only baptized. those whose children were require through-

Could it a fast from sunrise to sunset the I think not. out Moslem month of Ramadan? should doing of other criminal it make can then why Yet Christians that during eating, as innocent acts, revere? connotations with heavily overlaid is a word pur roots the Christian from deriving traditions

and This it. concerning judgments all that color civilization magic.” “word call philosophers is what human most for lawyers, most judges, most “For patterns of our value are as unconscious beings, we Cohen, that breathe.” oxygen we as we are p. 169. (1960), Legal Conscience inbe better therefore cases would of these The issue controlled legislature, a state imagined if we focus a Adventists, passed Seventh-Day Jews by orthodox Saturdays. open on keep shop a it a crime to making law be Presbyterian Methodist, or Baptist, Catholic, aWould fine? Or pay a go jail or obey that law compelled to got here strength grew political Moslems suppose keep crime to making it a legislature through a law a state rest of us have Fridays. Would shop open a fear criminal sanctions? submit under the up the dominance recently summed Cogley Dr. John in our affairs: three-religion influence seems, it the United future, “For the foreseeable At the three-religion nation. to be a going States characteristically ‘Amer- all three are present time University, Pluralism, Lectures, Miami Danforth The Problems of suggest is still (1960). writers America Oxford, Other Ohio nonlegal customary “Protestant establishment” subject to a Thus, only political issues. on certain to the surface which comes analyze “religious issue” of Hartzberg was able to Rabbi Arthur campaign in these terms: presidential the recent battleground, at seen, Amendment was the the First “As we have society century, major transition American of a end of 18th yield to the forced to Protestant establishment was in which the old Today American non-conformity. newer ethos of Protestant change important full witnessing perhaps as society, are we —the *119 religion For flavorlessly so. think ican,’ some bourgeois, uniformly ‘respectable/ is almost America the ‘church’ Protestant world In the and prosperous. more venturesome over the triumphed has mentality mysti- world, the In the Catholic ‘sect.’ spirit of the and organization booming cal is muted favor in the And good works. efficiently administered frequently is without prophet too Jewish world the emphasis focused synagogue while honor, exceptions are togetherness. There suburban communi- rules, course; each these and its its rebels up prophets, ties to cast continues Jeremiah, fears, posi- But a would be radicals. one present of the position to the tively embarrassing upsetting complacency a Francis of Assisi Jews; aas rudely would be dismissed American Catholics Kierkegaard, and a with an Amer- fanatic; speaking than accent, considerably ican less welcome would be pulpits.” Norman Vincent Peale most Protestant far, This religious influence has extended far back Every the First and Fourteenth Amendments. the Fourth School student knows Commandment: it day, keep holy. “Remember the sabbath do all work: days labour, thy “Six shalt thou day is “But the seventh the sabbath the LORD thy in it not nor any work, thou, thou shalt do God: thy thy thy daughter, thy manservant, nor nor son, entry immigrant post-bellum groups into the life. national Though raging again once seems to the First the battle be around analysis foregoing Amendment, appear would from the it separation state, symbolic true issue of church but the is not significance having for American and culture of a non-Protestant— life Jew, Catholic, whether he be a or an atheist —as President avowed Hartzberg, “The Protestant United States.” ‘Establishment/ (October 1960), Presidency,” Commentary Dogma, Catholic p. 285. *120 thy thy nor that is

maidservant, cattle, stranger nor thy gates: within in six days earth,

“For the LORD made heaven and in sea, the and all that them and rested the seventh is, day: wherefore the blessed day, LORD the sabbath and hallowed it.” Exodus 20:8-11.

This religious mandate for observance of the Seventh Day became, Emperor under a Constantine, mandate for “in Day conformity prac observance of the First with the ” tice of the Christian Church. See Richardson v. God dard, 23 How. religious This mandate has had a in history, general checkered but its enforced command, by now authorities, the ecclesiastical by now the civil authorities, by and now has held both, good through down the centuries.2 The general pattern of these laws United States was eighteenth set century and de most rives, from a directly, century seventeenth English statute. II, Charles c. 7. Judicial comment on the Commentaries, IV, Blackstone’s Bk. c. entitled “Of Offenses Against Religion,” says part: God and

“IX. day, vulgarly (but Profanation of the improperly) Lord’s Sabbath-breaking, against called religion, is a ninth offence God punished by municipal England. For, law of besides the noto- indecency permitting any rious and scandal of secular business to be publicly day, country transacted on that professing Christianity, in a corruption and the usually profanation, morals which follows it’s keeping holy, one in seven as a time of relaxation and refreshment public worship, as well as for is of admirable service to state, a merely considered by as a civil institution. It humanizes help society classes; conversation and the manners of the lower degenerate ferocity would otherwise savage into a sordid spirit:' selfishness of it pursue enables the industrious workman to occupation ensuing his in the week with health and cheerfulness: it imprints people on the duty God, minds of the of their sense necessary good so citizens; yet to make them but which would be by worn out and defaced an labour, unremitted continuance of without recalling worship stated times of them to the of their Maker.” Some always bag. judges been mixed

Sunday laws has aim, civil “purely” that the statutes have have asserted a common e., provision i. limitation of work time judges recognized But other have and universal leisure. laws Sunday and that significance of In that significance. maintenance of existed enforce the inter have continued to argument threads of general, both time Prior to the subject. the case law on the weave applicable First was held when the Amendment Four reason of the Due Process Clause of the States approved at obiter dictum State teenth, the Court least *121 Crowley, Hing v. Sunday laws on three occasions: Soon in 1885; Hennington Georgia, 113 v. 163 S. 703, U. S. U. Minnesota, in 299, 1896; 164, Petit v. 177 S. 1900. U. York, 907, Court, And Friedman 341 S. the v. New U. want a by vote, a divided dismissed3 “for substantial an from a New York decision question” appeal federal an attack upholding Sunday against of a law validity based on the First Amendment. Hing, Hennington, Petit all rested

The Soon cases police power right safeguard on the of the State — the by requiring the health of the the cessation of nor people mal day activities one out of seven. The Court Ring rejected Sunday Soon case the idea that laws rested power government legislate promo on the “to for the religious tion of observances.” 113 S.,U. at 710. The New York in the Friedman Appeals Court of case followed reasoning of the earlier cases,4 75, 302 N. Y. 96 80, E. 2d 184, N. 186.

3 Ohio, Ohio, also Ullner Kidd 132; 131; See v. 358 U. S. v. 358 U. S. Pennsyl Carolina, McGee North Grochowiak 802; v. 346 U. S. cf. v. vania, Motors, Inc., Gassert, Gundaker Cent. 47; 358 U. S. v. 354 Towery Carolina, North 933; S. S. 925. U. v. U. respects As the First Amendment the court said: religious up church, upon worship “It set does not a make attendance compulsory, impose upon expression religious belief, restrictions religion according upon the to the work a restriction exercise law in one of Sunday The Massachusetts involved appeals these was once characterized the Massachu a merely regulation providing setts court as civil Has, of rest.” Commonwealth v. period “fixed 122 Mass. 40, 42. was, according That decision to the District Court Gallagher “an ad hoc case, improvisation” made “because of the realization that the law would be more vulnerable to constitutional attack under the state Constitution if motivation of the statute explicitly were more avowed.” F. Supp.

Certainly prior to the Has case, the Massachusetts courts had indicated that aim of the Sunday law was reli Atwood, See Pearce v. gious. 13 Mass. 324, 345-346; Brooks, Bennett v. 91 Mass. 118, 121. After the Has case the Massachusetts court construed the law aas Somerville, Davis religious measure. In 128 Mass. 596, Am. Rep. 399, 400, it was said:

“Our Puritan ancestors intended that should be not merely day of rest from but also a labor, day devoted to public and private worship and to religious meditation and repose, undisturbed secu- lar cares or amusements. They fit saw to enforce the observance of day by penal legislation, and the *122 statute regulations they devised pur- for that pose have continued in force, without substantial modification, present to the time.” Dextra, Commonwealth v. And see 143 28, Mass. 8 N. E. White, Commonwealth v. 756. In 190 Mass. 578, 581, N. E. 636, 637, the court refused to liberalize its construc- tion of an in exception its Sunday law for works of “neces- sity.” That word, it said, originally “was inserted to se- cure the observance of day the Lord’s in accordance with conscience, dictates of provide compulsory one’s support, by taxation otherwise, institutions, any way nor in enforce or prohibit religion.” Y., 79, 2d, 302 N. at 96 N. E. at 186. the views of our ancestors, and it ever since has stood and still stands purpose.” for the same In Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N. E. 835, 836, court reiterated that the aim of the law was “to secure respect and reverence for day.” the Lord’s

The Pennsylvania Sunday laws before us Nos. 36 and 67 have received the same construction. “Rest and quiet, on the day, Sabbath right with the and privilige public and private worship, by any undisturbed mere wordly employment, exactly are what the statute was passed to protect.” Sparhawk Co., v. Union Passenger R. 54 Pa. 401, 423. And see Nesbit, Commonwealth v. 398, 405, 34 Pa. A pronouncement 406-408. recent Pennsylvania Supreme Court is found in Common- wealth Club, v. American Baseball 290 Pa. 136, 143, 138 A. 497, 499: “Christianity part of the common law of Pennsylvania . . . and its people are Christian people. Sunday is the holy day among Christians.” Maryland court, sustaining the challenged law 8,No. relied State, 78 Md. 510, 405, 28 A. Judefind Levering v. Park Commissioner,5 134 Md. A. In the former the court said:

“It is undoubtedly true that rest from secular em- ployment on Sunday does have a tendency to foster and encourage the religion Christian all sects —of and denominations observe that rest —as from work ordinary occupation many enables engage in public worship who probably would not otherwise do so. But it would scarcely be asked of Court, professes what to be a Christian land, to declare law unconstitutional because it requires rest from bodily labor on Sunday, (except works of necessity and charity,) thereby promotes the ion of Lord Bowman Cf. Secular v. *123 Sumner). Society, Ltd. ^[1917] A. C. (opin is, religion If the Christian Christianity.

cause fostered otherwise, benefited incidentally or there undoubtedly is, it rest, day having this that laws the enforcement reason for more all the A., 515-516, atMd., it.” 78 preserve help at 407. excerpt from the court relied Levering case the

In the 54-55, atMd., just quoted. decision the Judefind at 178. A., Sunday laws cases the four each of have then We here brought that were Exodus, source find their that today are Puritans, and that Virginians by the respect they justified because construed, and maintained, a provide religious groups our dominant views of rest. day of needed ago century accurately summarized history was of California Supreme Court Terry of the Justice

by Chief Newman, 509: in Ex Cal. parte disguised, may it be however much is, truth “The idea. De- purely is a day of rest this one ancient institutions from the Sabbatical rived creeds of all the adopted into has Hebrew, it been civilized throughout sects succeeding religious the Moham- Friday of whether it be the world; and Sunday of Israelite, or the Saturday of the medan, the its in the affections it is alike fixed the Christian, eradication, and power followers, beyond aid of Confederacy, of our most of the States given has been its observance the law to enforce police municipal, or civil, of a pretence under regulation.” under Sunday law validity of a

That case involved guaranteeing the California Constitution provision I,Art. Const., Calif. religion. the “free exercise” of why he concluded Burnett stated § 4. Justice *124 a against to be enforced Sunday law, sought there infringed California’s selling clothing Sunday, man constitution: Monday, Sunday, act made instead of

“Had the question day compulsory rest, the constitutional fact that the Chris- would have been the same. The voluntarily keeps holy week, tian the first Legislature does not authorize the to make that compulsory. Legislature The can not observance compel the citizen to do that which the Constitution him leaves free or at his election. The omit, to do act violates as much the freedom of Christian as of the Jew. Because the conscientious views of the Christian him as compel keep a Sabbath, right Legis- he has the object, when the lature religious worship, invades his freedom of assumes the him power compel to do that which he right has the to omit if he pleases. principle The is the same, whether the act of the Legislature compels us to do that which we do, wish to or not to do. . . .

“Under the Constitution State, Legisla- of this ture can pass any not act, legitimate effect of forcibly is any to establish merely religious truth, or any enforce merely religious observances. The Legislature has power no over subject. such a When, therefore, the citizen is sought to be com- pelled by Legislature to do affirmative reli- gious act, to refrain from doing anything, because it simply violates a religious principle or observance, the act is Id., unconstitutional.” at 513-515. picks Court and chooses language from various decisions to bolster its conclusion that these Sunday laws in the modern setting are “civil regulations.” No matter how much is written, no matter what said, the parentage of these laws is the Fourth Commandment; and they of our religious predispositions satisfy serve a State the labels all, After communities.6 Christian we are on us when binding are not on its laws places reach our decision. We constitutional confronted with practical character, effect, to the own conclusion determining its constitu- regulation operation Shaw, 367-368; S. tionality. Carpenter 280 U. *125 Laundry Steam Sims, Memphis Dyer v. 22, 29; 341 S. U. Savings v. Society Stone, 392; 389, 342 S. v. U. for Lightfoot, Bowers, Gomillion v. 143, 151; S.U. 341-342. 339, U. S. com- by that these laws the States plain to me

It seems work or to refrain from law, sanction of pel one, under majority’s religious Sunday because of the recreation on makes by law day. that The State views about from work Refraining respect or adherence. symbol a of religious feel- majority’s in deference to the or recreation By every person’s choice. Sunday is within ings about compel it? authority government can what immoral our acts that are where put Cases are religious of other by the standards standards but not regard free Today jealous for retreat from that we handy imple it was "a a statute because dom struck down which Board Education v. religious persecution.” disguised ment for of say, do to Barnette, supra, (concurring opinion). It does not The day apart all others. “Sunday is a from majority, as does the being Sunday’s a irrelevant; exists.” The cause the fact is cause swept aside determinative; not be day that cause should apart is experience. parochial a declaration one. upon make is a delicate Cqurt judgment called religious history society’s light it be avoided in the our cannot But nonreligious lawgiver find

by arguing hypothetical could that a that rest. The effect of fixing Sunday as a reasons because indeed, us. Sabbath is no less Sabbath history is, still with to be strictures, it has come or because its it is now less severe must nonreligious purposes. The Constitution expedient for some simple-minded modes” as guard against “sophisticated as well Wilson, Lane S. 307 U. violation. That until

groups category cases, are made criminal. a today, very polyg- has been restricted one confined to States, amy (Reynolds 145) v. United and other 98 U. S. example extreme situations. The latest is Prince v. Massachusetts, 321 upheld S. a statute U. it making criminal for a child under papers, twelve to sell periodicals, any public merchandise on street or place. spite It was sustained finding the child it thought religious duty perform was her act. holding But was narrow which turned on the effect which might street solicitation have on the child- solicitor : authority

“The state’s over children’s activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A society democratic rests, for its continuance, upon healthy, growth well-rounded young people maturity into full with citizens, implies. all that may It against imped- secure this *126 ing restraints and dangers within a broad range of selection. Among evils appropriate most for such action are the crippling effects of child employment, more especially public places, possible harms arising from other subject activities all diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state’s police power, whether against the parent’s claim to control of the child or one that religious scruples dictate contrary Id., action.” 168-169.

None of the acts involved here implicates minors. None of the actions made constitutionally today criminal in- volves the doing any act that society has deemed to be immoral.

The conduct held constitutionally criminal today em- braces the selling of pure, not impure, food; wholesome, Adults, minors, not articles. not are involved. noxious, acts, constitutionally The innocent now classified as crimi- nal, emphasize the drastic break we make with tradition. said, are sustained it is the First because,

These laws religious Amendment is concerned with convictions or a Bill opinion, strange not with conduct. But it is Rights possible religious that makes it for the dominant minority, group bring minority to heel because the doing intrinsically of acts which are wholesome and not does not defer to the reli- antisocial, majority’s gious scruples against eating religious beliefs. Some have they might pork. scruples, Those no matter how bizarre First some, seem to are within the ambit of the Amend- Ballard, 322 ment. See United States v. U. S. having possible majority legislature

Is it that a of a state religious scruples those could make it criminal for pork? religious scruples nonbeliever to sell Some have against slaughtering legislature, cattle. Could a state it criminal run an group, dominated make abattoir? people rest,

The Court balances the need of the for family visiting and the like recreation, sleeping, late against First Amendment command of the no one to the beliefs of There need bow another. I balancing. place this realm no room for see no A legislature it the constitutional scheme. of Chris- weekly tians can make minorities conform to their no more regime legislature Moslems, legislature than a or religious regime every group Hindus. The must be it criminal respected crosses the line of conduct. —unless it, can forced to come to halt before But no one be *127 that offend it. That doing things refrain from would the Establishment Clause and the my reading is Any reading I imports, fear, Free Exercise Clause. other foreign in but to us. an element common other societies 23 of her after Nigeria Constitution, Thus in Article “Nothing in this freedom, adds, religious guaranteeing reasonably justified that is any shall invalidate law section defence, public in interest of society in a democratic public health.” order, public morality, or safety, public may That And see Article 25 of the Indian Constitution. adds it to But when the Court provision. be a desirable sharp we make a Amendment, today, First as it does our as religious liberty ideal of the American break with in Amendment. enshrined the First day of rest a week: course, require one can, The State Quite a few every shop factory when or closed. one “day of rest” requirement.7 make that Then the States But the purely simply becomes health measure. operate differently. They laws force minorities obey religious feelings of what is due majority’s a coercive proper community; they provide for a Christian who are indif- spur brethren,” to the “weaker to those or through apathy ferent to the claims of a Sabbath scruple. any Christians, there be doubt now Can in aligned vigorously laws, favor of these would be if strongly opposed they prosecuted were under a Moslem activities engaging law forbade them from secular days scruples? that violated Moslem There is an “establishment” religion the constitu- if any practice tional sense religious group has the sanction of law behind it. There is an interference with if religion “free exercise” of what conscience one may merely fix Or State a maximum hours’ limitation other terms, particular employees, particular either for classes classes employment, straight the board. laws and across See decisions gathered Reporter, Laws, par. 44,500 in 1 & CCH Labor Law State seq. et argument, desirability On there was made over the much fixing single day rest, grounds either on of administrative con grounds light history venience or on of the need for In of the leisure. meaning Sunday, has shared leisure of this aim still Joseph Burstyn, Inc., Wilson, 495, 505. overtones. Cf. 343 U. S. *128 religious of the doing required because can do or omit is each I declare community. Hence would scruples of complain- applied to the unconstitutional as those laws members of a sect they or not are whether ing parties, Sunday. day other than its which observes as Sabbath they Jews, as are Orthodox applied these When laws their vice or to Sabbatarians No. and No. are constitutional, are If laws is accentuated. laws those five-day on a week. Thus markets are kosher Saturday on observe put penalty an those who economic economic For the rather than Sabbath. the fact that our minorities, created pressures on these there Sunday-minded, predominantly communities are uses its coercive When, the State however, no recourse. compel minorities the criminal law—to powers—here own, not their State under- Sabbath, a second observe another” —con- “prefer religion aid one over takes to command of the See Everson trary to the Constitution. Education, supra, 15. Board v. religious clause history large

In measure free of eco struggle was to be Amendment the First religion. Everson for adherence to one’s nomic sanctions tax was Education, A small supra, Board 11-14. J efferson Virginia religious education. imposed writing tax, Madison fight against Madison led the against that law. Memorial and Remonstrance his famous Id., was result, 12. As a the tax measure defeated Religious Liberty,” “Bill for Virginia’s instead famous Id., Act by Jefferson, was enacted. 12. That written provided: sup- or compelled frequent “That no man shall be ministry port any religious or what- worship, place, or enforced, molested, nor soever, restrained, shall be body burthened in his nor shall other- goods, or 8 Hening, (1823), p. Stat. Va. opinions his

wise suffer on account of . . . .” belief an is a

The reverse side of “establishment” burden *129 religion. Receipt the “free funds the exercise” from an directly; laying benefits the established church State extra tax on nonmembers benefits the established church indirectly. present Sunday the Certainly place laws Orthodox Jews and Sabbatarians under extra burdens religious opinions because of their or Requiring beliefs. them Sunday to abstain from their trade or business on reduces they their work-week to five days, unless violate their religious scruples. This at a places competi- them tive disadvantage penalizes adhering them for to their religious beliefs.

“The sanction imposed by day the state for observing a Sunday holy other than certainly time is more serious economically than imposition the of a license tax for preaching,” which we struck down Murdock Penn sylvania, McCormick, 319 U. S. and in Follett v. 573. special U. S. protection Sunday laws give the dominant religious groups pen the alty they place on day minorities holy Saturday whose is my constitute, view, state with interference the “free religion.10 exercise” of 9 Pfeifer, Church, State, and (1953), p. Freedom assuming “. . . that the idle is 'institution’ of Chris an tianity, does a statute which for requires that reason men idle to be Sunday give preference

on a particular religion? to one How can it be not, maintained that it every does a unless similar institution of religion recognition other be honored with like ? toAs the individual aspect case, of the if the is to Christianity making law assist idle compulsory thereby ness day, presumably its commending sacred reject to it, strengthening it those upon who devotees, its hold its 'preference’ given is there not religion, a to a the unless Hebrew and other recognition all faiths have a days like extended to their ? sacred And as aspect, assuming to the social advantage it is an have people kept other extraordinarily quiet pray, while we and to have against any criminal sanctions applying from I dissent implicates so since to do complainants of these constitutional contrary matters to the in States Pastor of Parker, Jr., Allan C. Reverend mandate.11 public we select for law on the especial ‘peace’ established an neighbor from right to our worship, prevent we and that have practice of his avoca- earning living time because the his at certain be religious exercises, must it not called interferes with our tion do benefit, and not to ‘preference’ for the Christian’s do all this Mahomet, Moses, or Con- it of the followers benefit Day Aspects First Ringgold, Legal of the or Buddha?” fucius (1891), pp. 68-69. Week at time acceptance laws argued that the wide It it adoption makes fair assume First Amendment Clause, they thought within the “establishment” were to come never large country time of numbers presence in the at that and that *130 thought run to those were not makes it clear that laws Orthodox Jews reasons would be com Clause. Those afoul of “free exercise” adoption, been had, time of its pelling Amendment at the if the First applicable only to the it applicable States. But since was then to the bearing Sunday laws Government, possible no on the it had Federal later, years Amendment, adopted The of the States. Fourteenth time. applicable to first the States made First Amendment unsettling many and on customs had effects That Amendment has precept “that laws and practices Jefferson’s process consistent with —a progress human go with the hand in hand institutions must (Memorial 1904), Writings ed. of Thomas Jefferson mind.” The p. 41. suggest popu- to that the Jewish

Moreover, there is solid evidence “Despite esti- the roseate our then minuscule. lation of Nation was say to there subject, it is safe of some Jewish writers on mates living among the three Jews were never more than one thousand Newport com- the colonies. million and more inhabitants of fifty one munity heyday most one hundred its totaled at many, seventy-five had as Perhaps New York hundred and Jews. certainly were Philadelphia, or more. Charleston and Savannah combining populations their when Jewish smaller communities. Even county, far an lonely we still are from groups with the in the back Rights in Goodman, impressive Jewish total.” American Overture: (1947), p. Colonial Times Presbyterian Washington, Church, Park

South Seattle, my has stated views: that, though forget Sunday-worshiping

“We majority country among Christians are this not religious people, right we do have the to force upon Only our practice minority. a Church which deems itself without and intolerant of error minority. error can justify its intolerance of the “A Jewish friend of mine a runs small business my establishment. Because friend is a Jew his busi- Saturday. ness is each He respects right closed my worship I respect right on his to wor- ship But Saturday. on there is a As difference. Jew he voluntarily closes his store so that he will be worship able to his God in his fashion. But, Fine! living a Jew inspired under Christian Sunday clos- ing laws, required he his to close store on so that I worship will be able my my God in fashion.

“Around the my corner from church there is small Seventh Day Baptist I disagree church. with the Day Seventh Baptists many points of doctrine. Among the tenets their faith I with which dis- agree is the day worship.’ 'seventh they But are good neighbors and fellow Christians, while we disagree respect we one good another. The people of my congregation set aside jobs their on the first *131 of the week and gather in God’s for worship. house Of is course, it easy them set aside jobs their Sunday since closing inspired by the Church— laws— keep them from their work. At the Day Seventh Baptist church the people aside their jobs on set. Saturday to worship God. This takes real sacrifice because Saturday a good day for business. But that is not they required are by law to set aside all— more orthodox Christians Sunday while jobs their worship. I aside that because have set I do not believe

"... all right I have the to force holy day as a Why my should also. men to set aside any other man’s by the State over faith be favored faith?”12 opinions today sup- of the filed deference, all none

With that question. laws has answered port 1, pp. 21-22. January-February No. Liberty,