9: The LANDMARK Cases

Dave Terry found the other reason why Sunday laws violated personal liberties in America. David S. Terry, a California State Supreme Court justice back in the late 1850s, heard a case of a Jewish merchant who was selling goods on Sunday. Arrested, the man was sentenced to prison for 35 days. When the case finally reached the State Supreme Court, Justice Terry led out in a ruling that Sunday laws were illegal because they favored religion. And he also ruled that they were unconstitutional for another reason.

Judge Terry recognized that time itself is one of man’s most valuable assets. It is an opportunity to do business and acquire property. Since this right was inalienable by Constitutional declaration, no legislature had a right to tamper with it by enacting a Sunday law.

But another hundred years would bring an ominous change.

In the 1950s, the Crown Kosher Supermarket was a Jewish owned corporation in Massachusetts. Specializing in kosher foods, the market catered primarily to Orthodox Jews who kept the Bible Sabbath (Saturday). So the market was closed from sunset Friday to sunset Saturday, and open on the other days of the week—including Sunday. Protestants, Catholics, and secularists had little or nothing to do with the store; only Jews patronized it. There could be no issue of unfair competition, for it only competed with other Jewish stores; also it was open on Sunday and closed on Saturday. After the manager of Crown Kosher was arrested for Sunday law violation, the case gradually wound through the courts and ended up in a Massachusetts federal district court. The ruling, handed down in 1959, was a clear one: Reviewing the Massachusetts Sunday laws, which go back hundreds of years to colonial times, and noting their hodgepodge—always religious—nature, the court decreed that Sunday laws were Constitutionally illegal. In conclusion, the ruling also mentioned that the landmark 1896 Supreme Court Hennington ruling was obsolete because its decision was given "before the modern development of limitations upon the powers of the states implicit in the fourteen amendment."

If that had been the end of the matter, all faithful Christians in America could have breathed easier, safe from the intolerance that religious laws always bring in their wake. But the case then went to the Supreme Court.

The year 1961 became a landmark in Sunday-law history. For, on May 29, four different cases were decided in favor of Sunday laws! And the reason given for them was the "police power" and "criminal law" sanctions thinking of the Supreme Court in the 1890s in regard to such laws! In 1961, the highest court resurrected the "police power" and the "civil regulation" concepts that Justice Stephen Field had pioneered and refined in 1896.

These four Sunday law cases were: McGowan vs. Maryland, 366 U.S. 420 (1961); Gallagher vs. Crown Kosher Supermarket, 366 U.S. 617 (1961); Braunfeld vs. Brown, 366 U.S. 599 (1961); Two Guys from Harrison vs. McGinley, 366 U.S. 582 (1961).

When the present writer was a boy growing up in California, Earl Warren, a Roman Catholic, was elected governor of the state. Later, he was appointed Supreme Court chief justice. Under his leadership, a number of unusual decisions were made by the high court. But these May 1961 decisions were among the most unusual of them all.

Potter Stewart, newest and youngest member of the court, wrote a brief dissent in the Braunfield case, which also involved a Jewish merchant who sold goods on Sunday while his competitors sold theirs on Saturday. Justice Stewart said this:

"Pennsylvania has passed the law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice which I think no state can Constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their Constitutional right to the free exercise of their religion."—Steward Dissent, Braunfeld vs. Brown, 366 U.S. 616 (1961).

Justice William O. Douglas voted against the majority decision in every one of the four 1961 Sunday-law cases. In a lengthy dissenting opinion, he showed the religious nature of Sunday-law legislation and enforcement. He believed that the blue laws before the court were in violation of both the "establishment clause" and the "free-exercise clause" of the first amendment.

Most of Justice Douglas’ powerful dissent is available from this publisher in a tract entitled, The Case Against Sunday Laws [BS-16]. Here are a few of his statements:

"I do not see how a state can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors . . The ‘establishment’ clause [of the first amendment] protects citizens also against any law which selects any religious custom, practice, or ritual, or otherwise penalizes a person for not observing it . . Every Sunday school student knows the fourth commandment: [Douglas then quotes Exodus 20:8-11.] This religious mandate for observance of the seventh day became, under Emperor Constantine, a mandate for observance of the first day . . The fact that the Christian voluntarily keeps the first day of the week does not authorize the legislature to make that observance compulsory. The legislature cannot compel the citizen to do that which the Constitution leaves him free to do or omit."—William O. Douglas, United States Supreme Court, in McGowan vs. Maryland, U.S. Supreme Court, October Term, 1960 (May 29, 1961), 366 U.S. 420, 561-581.

Forget not, for a moment, that it is the first amendment that is one of your best guarantees of freedom in our land. For a moment, read it again for yourself:

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peacefully to assemble and to petition the government for a redress of grievances."—First Amendment, U.S. Constitution.

It is clear that some of our—yours and mine—most basic civil and religious freedoms are to be found within the first amendment to the United States Constitution. And it is equally clear that the enactment and enforcement of Sunday laws are antagonistic to those freedoms.

"The ‘establishment of religion’ clause of the first amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another . . No person can be punished for entertaining or professing religious beliefs or disbeliefs . . Neither a state not the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a ‘wall of separation between church and state.’ "—United States Supreme Court, Everson vs. Board of Education, 330, US. 1, 15-16 (February 10, 1947).

In spite of legislative and judicial advances in many lines in the mid-twentieth century, there were forces at work to introduce religious laws and court decisions. The 1961 Supreme Court decisions represented a high point in their successes. Others have followed. What are these organizations and what are their stated objectives?