The Blues
Clifford R. Goldstein May/June 2012
If you thought that Sunday “blue” laws were relics of the past, something that belongs in Norman Rockwell paintings of “the good old days,” then think again. A recently enacted North Dakota Sunday-closing law reads somewhat like the Jim Crow laws did in the old South in its somewhat archaic absolutism. The statute—“12.1-30 SUNDAY CLOSING LAW” makes it “a class B misdemeanor” for any person between the hours of 12:00 midnight and 12:00 noon on Sunday to do any of the following activities: “a. Engage in or conduct business or labor for profit in the usual manner and location. b. Operate a place of business open to the public. c. Authorize or direct that person’s employees or agents to take action prohibited under this section.”z
With some exceptions, it’s also a crime (a class B misdemeanor in North Dakota can mean up to $1,000 fine or up to 30 days in jail) during the stated hours to buy or to rent the following items: “1. Clothing other than work gloves and infant supplies. 2. Clothing accessories. 3. Wearing apparel other than that sold to a transient traveler under emergency conditions. 4. Footwear. 5. Headwear. 6. Home, business, office, or outdoor furniture. 7. Kitchenware. 8. Kitchen utensils. 9. China. 10. Home appliances. 11. Stoves. 12. Refrigerators. . . . ”
A total of 44 specific items are forbidden for sale or rent during that specified time, including radios, dryers, and “tools other than manually driven hand tools.” (Why only “manually driven hand tools” are allowed and others not, the law doesn’t say, but one must assume some rationale behind the distinction exists.)
Though “12.1-30 SUNDAY CLOSING LAW” had been on the books for years, it was recently dusted off and updated. Agitation about it brought the issue to the forefront last year in North Dakota when some folks wanted to expand the number of businesses not having to comply. Whatever the outcome of the present dispute, the question of Sunday blue laws does present an interesting example of how, even after a few centuries, church-state separation continues to be a challenge to the American experiment.
A Secular Day?
When the issue started, Christopher Dodson, executive director of the North Dakota Catholic Conference, said that the law was not religious but secular, and had nothing to do with enforcing a religious day of rest upon anyone.
“The purpose of North Dakota’s Sunday closing law,” Dodson wrote, “is not to impose times of worship. Nor is it to demand adherence to religious doctrine.” Rather, according to Dodson, the law was to “preserve the common good by ensuring that society is not overtaken by work and profit.”
Dodson went on to argue that “Sunday closing laws are not about honoring the Sabbath day. They are about honoring people and families.”
The argument itself is not new; it has been around for more than 100 years. The question remains, however—how valid is it? Though proponents of Sunday-closing laws often use that argument, and the U.S. Supreme Court has accepted it too—a closer look at the facts shows just how dubious the whole concept of a “secular Sunday law” really is.
Religious Laws
No one, of course, disputes that in the old days, both in Europe and America, Sunday laws were nothing but religious, and overtly so. The whole purpose was to help people keep the fourth commandment (Exodus 20:8), which said: “Remember the sabbath day, to keep it holy” (that the commandment specified that the seventh day, Saturday, not the first day, Sunday, should be kept holy is a sore point, part of a long debate that’s not our direct concern here).
Though laws varied from state to state and community to community, they were often strict, and unequivocal about their purpose.
A 1610 Virginia Sunday law read: “Every man and woman shall repair in the morning to the divine service and sermons preached upon the Sabbath day [Sunday], and in the afternoon to divine service, and catechizing, upon pain for the first fault to lose their provision and allowance for the whole week following; for the second, to lose the said allowance and also be whipt; and for the third to suffer death.”
Though, over the years, especially after the establishment of the nation itself, Sunday laws didn’t force people to attend church, they expressly did what they could to keep people from engaging in activities that seemed to violate the principles of Sabbathkeeping, pretty much what’s at the heart and soul of all Sunday blue laws, even today. For instance, this 1893 Delaware law reads: “If any person shall perform any worldly employment, labor or business on the Sabbath day [Sunday] (works of necessity and charity excepted), he shall be fined four dollars; and on failure to pay such fines and costs shall be imprisoned not exceeding twenty-four hours.”
Violation of Church-State Separation
Almost from the start, people were opposed to Sunday-closing laws, seeing them as a violation of the establishment clause, in that they were imposing religious dogma through the force of law. One pivotal example occurred in 1888, when New Hampshire senator H. W. Blair introduced Senate Bill 2983, which was “TO SECURE TO THE PEOPLE THE ENJOYMENT OF THE FIRST DAY OF THE WEEK, COMMONLY KNOWN AS THE LORD’S DAY, AS A DAY OF REST, AND TO PROMOTE ITS OBSERVANCE AS A DAY OF RELIGIOUS WORSHIP.”
The bill was designed, Blair said, simply to “make efficient the Sunday rest laws of the States, and nothing else.” In other words, it was written to protect state blue laws from being challenged on constitutional grounds.
The bill, however, never went anywhere for a number of reasons, not the least of which was its overtly religious nature. A bill seeking to promote Sunday’s “OBSERVANCE AS A DAY OF RELIGIOUS WORSHIP” is as about as over-the-top sectarian as one could get. Thus, even before Blair’s bill died on the vine, blue law aficionados had to find another way to keep their laws intact.
Certain Religious Vestiges
“Sunday- law proponents learned from these skirmishes,” says church-state specialist lawyer Warren Johns. “They learned that the stronger the religious rationale advanced for creating the establishment, the stronger were the constitutional arguments available to opponents. Consequently the reformers made an effort to cultivate the support of labor on the basis that a federal blue law would serve a public-welfare purpose and promote the interests of the laboring man.”
Thus, the term secular Sunday was hatched, and suddenly Sunday-closing laws were being rewritten or introduced in ways that sought to remove the religious language from the bills, however much the laws themselves, and what they prohibited, remained the same. Even worse, the United States Supreme Court, in 1961, had handed down four decisions (in one day) that firmly established the constitutional rationale for Sunday-closing laws.
How? Because, according to the High Court, they were secular, not religious, in nature, and as such do not violate the establishment clause.
In one of the cases the High Court said that “granted the Sunday laws were first enacted for religious ends; they were continued in force for reasons wholly secular, namely, to promote a universal day of rest and to ensure the health and tranquillity of the community. . . . Even if Sunday laws retain certain religious vestiges, they are enforced today for essentially secular objectives which cannot be effectively achieved in modern society except by designating Sunday as the universal day of rest.”
Thus, the secular Sunday now had the support of the highest court in the land, which helps explain how—50 years later—Christopher Dodson, of the North Dakota Catholic Conference, could argue as so vigorously and confidently that “the purpose of North Dakota’s Sunday closing law is not to impose times of worship. Nor is it to demand adherence to religious doctrine. The purpose of the law is to preserve the common good by ensuring that society is not overtaken by work and profit.” Many have bought in to this logic. It is behind recent similar Sunday family rest day laws in Europe. It is the logic that Pope Benedict XVI advances in Caritas in Veritate, his solve-all analysis for what ails the world.
Faulty Argument
Despite having the imprimatur of the Supreme Court, Sunday-closing laws are still, no matter how the legislation is written, basically religious in nature, and thus should have been deemed unconstitutional.
For starters, the idea of one day of rest in seven is, essentially, a religious idea. It’s no coincidence, either, that Sunday—and not Tuesday, or Wednesday, or any other day—is commonly designated as the “Lord’s day” and is the day that folks seek to regulate, especially during the hours that most people go to church. In a dissent to one of the Supreme Court rulings, a justice wrote: “We have then in each of the four cases Sunday laws that find their source in Exodus, that were brought here by the Virginians and the Puritans, and that are today maintained, construed, and justified because they respect the views of our dominant religious groups and provide a needed day of rest.”
Wrapping the law in secular language does nothing to change boots-on-the-ground aspect of the law, which is to keep shops and businesses closed during the time many people go to church. Had Sunday-closing laws been Tuesday-closing laws, or Monday-closing laws, a secular argument could perhaps be made for their secular character (though, again, the whole idea of one day in seven has religious underpinnings in and of itself).
Also, what evidence suggests that Sunday laws bring about all these purported secular benefits to begin with? American society is radically different today than in times past, and a Sunday law might not have the anticipated moral effect. In inner cities, for example, where unemployment is high and the family often devastated, who wants gangs of bored teenagers—unlikely to be in church anyway—wandering the streets because all the shops are closed?
Family Rest Day
Despite some notable exceptions, such as the North Dakota statute, Sunday laws in the United States have, for the most part, gone the way of segregated toilets. Meanwhile, in Europe, the push for more and stricter Sunday laws has been given some recent impetus by the Vatican, which is actively promoting what is now called the Family Rest Day.
And, of the seven-day week, which day is the family to rest?
Guess.
Speaking in the context of the forces that threaten family life, Benedict XVI wrote that “it is necessary to promote reflection and efforts at reconciling the demands and the periods of work with those of the family and to recover the true meaning of the feast, especially on Sunday, the weekly Easter, the day of the Lord and the day of man, the day of the family, of the community, and of solidarity.”
It’s one thing for a church to seek to promote reverence and worship and church attendance; that’s, after all, part of what churches are all about. What becomes problematic, however, is churches seeking the secular state, which has the power of civil law behind it, to help promote those goals. In the end, whether called Family Rest Day or “12.1-30 SUNDAY CLOSING LAW,” Sunday laws are nothing but religious laws designed to promote the teaching of the dominant religion through the power of the secular state. Thus put, I think it is clear that they have no place in a nation that prides itself on religious freedom and the separation of church and state.
Article Author: Clifford R. Goldstein
Clifford Goldstein writes from Ooltewah, Tennessee. A previous editor of Liberty, he now edits Bible study lessons for the Seventh-day Adventist Church.