The Rest of the Story
Edwin C. Cook March/April 2011
Sunday laws have a long history in America. Originally imported from England during the Colonial era by the Puritans, their observance was strictly enforced among the Colonies. Sunday labor was prohibited, and worship at church was required. Civil penalties, varying from fines to whiplashings; and ultimately to death for habitual transgressors, were inflicted. In that era religion played a much more vibrant role in the ordering of society as compared to contemporary America.
With the passing of the centuries from then until now, Sunday laws no longer are based on religious arguments. Noting this shift from a religiously based society to a more secular one, the Supreme Court in 1961 ruled in McGowan v. Maryland that Sunday-closing laws were not a violation of the establishment clause because of the secular-based motivation behind their enforcement in the modern American context. Relying upon the “argument from history,” that is to say, in order to find Sunday laws constitutional or unconstitutional, the Court based its findings on the history of the practice.1
Sunday law proponents nowadays, both in the American and European context, argue on sociological grounds that the nation and its citizens needed a day of rest from labor without appealing to any religious rationale. They argue that one day per week without labor is foundational to building healthy family relations, developing a more vibrant workforce, and promoting the overall well-being of society.
Philosophical Considerations
Judith Shulevitz, author of The Sabbath World: Glimpses of a Different Order of Time, appeals to history, religion, philosophy, and her own personal experiences to argue for a sabbath of time wholly devoid of religious connotations. Shulevitz correctly relates the historic record of sabbath (Sunday)-rest days legislated during the Colonial era in America and how they were based primarily on religious principles. However, she afterward argues that Sabbath observance lost its sacredness through the influence of Isaac Newton and economists. “Once Isaac Newton convinced us,” writes Shulevitz, “that time was a mathematical quantity, wholly measurable, infinitely divisible, and expressible in numbers, and economists showed us that time could be a commodity, exchangeable for money, we were bound to find implausible the notion that certain times were holy while others weren't."2 From this perspective, Shulevitz argues that "holy time, then, is time that we ourselves make holy—time that we sanctify by means of our selves. We have to commit ourselves to holy time before it will oblige us by turning holy."3 The danger of this view is that, once the sacredness of the Sabbath declared by God has been removed, human beings feel at liberty to disregard the day God has indicated as holy, or, worse yet, to construct any other day as a day of rest through civil legislation.
The Sabbath memorializes the attributes of God as Creator of time and Creator of life: "Remember the Sabbath day, to keep it holy. . . . For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the Lord blessed the sabbath day, and hallowed it."4 The attempt by any government, or any religious organization, to duplicate this work of God—i.e., the creation of a day of rest—through legislation, whether philosophically or religiously based, is the highest form of blasphemy. Thus, to argue that on purely philosophical grounds one may avoid any religious connotations regarding a day of rest from labor is dangerously misleading.
Economic Considerations
Historically, economic considerations weighed heavily in the debates concerning Sunday-closing legislation. Sunday-rest advocates desired society to observe Sunday without the occurrence of any business negotiations, a practice grounded in the biblical injunctions regarding the proper observance of the Sabbath (actually Saturday in biblical reality). The prophet Nehemiah inveighed unrelentingly against those Israelites and non-Hebrews who desecrated the Sabbath day by selling and buying food and other commodities on that day: "Then I contended with the nobles of Judah, and said unto them, What evil thing is this that ye do, and profane the sabbath day? Did not your fathers thus, and did not our God bring all this evil upon us, and upon this city? Yet ye bring more wrath upon Israel by profaning the Sabbath. . . . So the merchants and sellers of all kind of ware lodged without Jerusalem once or twice. Then I testified against them, and said unto them, Why lodge ye about the wall? if ye do so again, I will lay hands on you. From that time forth came they no more on the sabbath."5
In attempts to sanctify Sunday as the day of rest and worship for Christians, the Catholic Church claims to have transferred the sacredness of the biblical Sabbath from Saturday to Sunday, going so far as to impose the aforementioned biblical injunctions regarding proper Sabbath (Saturday) observance upon society through Sunday legislation. As early as A.D. 538, it was decided at the Third Council of Orleans: "Whereas the people are persuaded that they ought not to travel on the Lord's day with the horses, or oxen and carriages, or to prepare anything for food, or to do anything conducive to the cleanliness of houses or men, things which belong to the Jewish rather than Christian observances; we have ordained that on the Lord's day what was before lawful to be done may still be done. But from rural work, i.e., plowing, cultivating vines, reaping, mowing, thrashing, clearing away thorns or hedging, we judge it better to abstain, that the people may the more readily come to the churches and have leisure for prayers. If anyone be found doing the works forbidden above, let him be punished, not as the civil authorities may direct, but as the ecclesiastical powers may determine."6
Not only were such practices followed so many centuries ago, but Protestants, most notably the Puritans, followed suit in the New World. Among the original 13 colonies, three of them enforced Sunday legislation so harshly that it included such severe penalties as death for continuous dissenters.7 Although such draconian measures were softened by the 1700s, the practice of inflicting civil penalties upon Sunday violators continued unabated. By the 1790s the Constitution and the Bill of Rights, as founding documents of American nationhood, had been ratified. However, in spite of the formulation of the First Amendment forbidding Congress from making any law "respecting an establishment of religion," Sunday laws continued to remain as statutory prohibitions, although not as strictly enforced as in previous decades.
Nearly a century later, during the 1880s, attempts were made to legislate a national Sunday-closing law.8 Known as the Blair Bill, so called because of the senator who introduced it, the bill had been developed by the National Reform Association (NRA). At the beginning of their campaign to promote Sunday sacredness, the NRA argued almost exclusively upon sociological grounds, much like Sunday-sacredness proponents in Europe and America are doing currently. The NRA argued that cessation from labor on Sunday would elevate societal moral values because families would have time to spend together. When the bill was introduced, Alonzo T. Jones, a Seventh-day Adventist minister and editor of the Sentinel, the precursor magazine to Liberty, argued persuasively against it, thus preventing it from becoming law.
In the following century Sunday-law debates revived. By the 1960s newly in-vogue department stores began to compete with small downtown businesses. The owners of the latter group desired to observe Sunday as traditionally done, but, facing severe economic challenges that potentially could force them out of business, they were faced with one of two options: that of opening on Sundays to compete with the department stores, or observing Sunday as a day for rest and religion, thereby losing business.
One case study highlights the complexity of interrelated factors when used to justify Sunday-closing laws for economic reasons. In Texas small downtown merchants complained about the Sunday opening of department stores. They appealed to their state senator, Jack Hightower, basing their arguments primarily on social concerns (i.e., overworked employees). In a letter dated February 4, 1965, Senator Hightower wrote to one of his constituents: "I have had quite a bit of correspondence in opposition to the Sunday closing law from individuals and various groups. I think the Seventh Day Adventists are the most concerned, but people of other denominations also expressed opposition to the matter as infringement on religious liberty. I am aware that a vast majority of responsible retailers are gravely concerned with the growth of retail establishments who seem to have little or no regard for the length of time they work their employees, or providing them with much-needed time off during the week."9 By the following month Senator Hightower was persuaded more by the economic concerns of his constituents, rather than the religious ones. He reasoned in this fashion: "It is often necessary for our lawmaking bodies to make laws for the good of society that have no bearing on religion, although they may be in harmony with religious teachings of some philosophies. The proponents of this legislation argue that it is an economical, rather than a religious matter. If this is true, then I think the Legislature is acting within its responsibility in passing such a proposal."10
In order to make a final decision regarding how to vote on the issue, Senator Hightower considered the social factor as of more importance than the concerns he had regarding infringement of religious liberty. When responding to Mr. Lynn Rieves on March 10, 1965, he stated: "Regarding Senate Bill No. 56 [Sunday-closing bill], there is much opposition to this proposal from certain religious groups, claiming it is an infringement of religious liberty. This causes me some concern. However, I think there is a social problem involved which has nothing to do with religious liberty and my present plans are to support the measure."11
From this correspondence between Senator Hightower and his constituents, it becomes obvious that the variety of factors related to Sunday-closing laws make it difficult for politicians to clearly discern the true intent behind such legislation. However, from a practical perspective each legislator should consider the results of Sunday-closing laws before deciding to support them. William Harper closely analyzed the Sunday-closing law debate in Texas and published his findings in The Texas Blue Laws.12 He summarized the outcome of this debate, noting the following primary results: (1) increasing the number of cases that filled the dockets in an overburdened legal system, (2) producing an undue burden upon law-enforcement personnel, (3) engendering arbitrary application of the law because of political favors at the local level, (4) disregarding the hidden religious motives of some groups who masked such intents behind economic considerations, and (5) sufficient vagueness in portions of the Sunday-closing law as to warrant its possible repeal.
Political Considerations
Giving further consideration to the social factor, one may certainly argue that it is within the realm of public order to facilitate a time for the populace to rest. The way in which society is conceptualized, however, makes a significant impact upon the way in which it is structured. The structure of society in turn defines how to address the complex issue of a day of rest. Sunday-rest legislation pits two societal theories against one another: the organic model and the societal vision of Madison and Jefferson, which was founded upon Lockean natural rights.13
The organic model forms the basis of Roman Catholic social and political philosophy. Based on it, society is viewed as a natural result of humanity's social nature.14 Heinrich Rommen explains: "Because the state is thus both a natural and a morally necessary consequence of man's social nature and in concrete individual existence a free creation of man's free will led by his intellectual reasoning about the necessity of political life, Catholic political philosophy likes to call the state a moral organism to signify the teleological predisposition to it in man's nature."15 Stated otherwise, humans are predisposed by nature to be in the society of other humans, and collectively this may be termed the state. Catholic political philosophy argues that the state, by nature, has a moral dimension to it, which should aim at directing the moral development of its individual members: "The end of political life is the perfection of man not only as an individual in an abstract sense but as a person living in community and only thus reaching his personal end. Thus the end of political life is a wholeness with a teleological independence, which is more than all the individual ends summed up together."16 Because human beings can develop more fully when in the society of others, this theory argues that the moral posture of the whole group (state) outweighs specific considerations of the individual in some areas.
Up to this point, one may concede that such a political philosophy harmonizes with most modern views of the state as a moral guide having the responsibility of directing its citizenry to an elevated morality. However, Roman Catholic political philosophy also argues that humanity's ultimate end is God and that it is the responsibility of the state to so direct "the common good" (citizenry): "The state as a moral person has duties to religion, to God. The state is not wholly an arbitrarily created institution of free individuals but is, considered from the point of view of the teaching on the end of man and on man's social nature, a necessary community. Inasmuch as the state is the result of this nature, it is of mediately divine origin."17 Based on this philosophy, the church defends its right to receive state support in those countries of predominantly Catholic populations, known as "confessional states."
In states with a populace of mixed religious groups, the church recognizes the state's need for a more neutral stance in religion, not by principle, but by expediency—that is to say, for the sake of avoiding political instability.18 Nonetheless, even in such states, the church seeks concordatory rights by which it desires cooperation with the state in those areas of civil life that also overlap with the ecclesiastical sphere.19 Whether or not the church receives concordatory rights, it nevertheless reserves unto itself "an indirect power in matters temporal" in all states. Because the state is of divine origin, and the church the expression of the divine will, the Church therefore has the prerogative of directing the state according to natural law and positive divine law: "This indirect power originates in the qualitative superiority of the church's end and consequently of the ecclesiastical authority. It is the power of teaching and of judging. It means that the church has the right and the duty to teach the state in matters of polity in so far as they concern the ultimate end of man, the salvation of souls, and the glory of God. It means that to the church belongs the power to judge the sins of the political power and to proclaim what is morally right or wrong in politics upon the basis of natural law or positive divine law."20
How does such indirect power reserved by the church relate to Sunday-closing laws? Since the church bases its exercise of indirect power upon violations of natural or divine law, it must be shown that the lack of cessation of labor on Sundays is in violation of either, or both, of these laws before the church would intervene in the political sphere to address this issue. In the church's opinion, it is precisely the result of a violation of both laws that has prompted the church to vocalize the need for Sunday-closing laws. From natural law the church argues that man's social nature needs a day off for the sake of spending time with his family, as well as for his physical recuperation.21 From divine law the church contends that Sunday should be sacredly observed as the day of worship, a tradition that has been followed for centuries during its existence in Europe.22 Thus, those countries in Europe (or states in America) that adopt and enforce Sunday-closing laws, or those that activate dormant laws already on statute books, are acquiescing to the political structuring of society based on a Roman Catholic social and political philosophy.
In contrast to the organic model, the political philosophy of Thomas Jefferson and James Madison envisioned a society structured upon the Lockean concepts of natural rights balanced with classical republicanism. Prior to the American Revolution and while crafting the Declaration of Independence, Jefferson relied primarily upon Lockean principles of natural rights to underscore how King George had exercised poor government over the Colonial subjects. From this foundation Jefferson could argue for the overthrow of English rule.23 After the Revolution and during the phase of building a new republic, Jefferson relied upon classical republicanism to develop his concept of man as a social being, thus emphasizing the need for community. It is essential to balance both concepts when analyzing Jefferson's political thought.24 Humanity's need for community does not negate foundational Lockean natural rights, especially those that are inalienable, such as rights of conscience in matters religious.
Echoing Jefferson's emphasis upon Lockean natural rights, James Madison also crafted his political philosophy with emphasis upon the minority groups and the individual. Such ones would be protected from the majority in power, whether that majority should be grouped along political or religious lines. Madison wrote: "All civilized societies are divided into different interests and factions, as . . . members of different religious sects—followers of different political leaders. . . . In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?"25 Applying this line of reasoning to the topic of Sunday laws, it would not be incorrect to hypothetically state that the majority of Christian denominations in America consider Sunday as a sacred day of worship (their "common passion," in Madison's language), whereas a minority consider Saturday (or, another day). What would keep such a majority of Sundaykeeping Christians from passing legislation that would infringe upon the Sabbath-observance practices of the minority?
In Madison's line of reasoning, the answer is through the mechanisms of government that foster a multiplicity of sects (religious groups): "Is a bill of rights a security for religion? . . . If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest."26 The mechanisms of government to which Madison alludes require that government remain neutral toward religion, neither aiding one particular group, nor supporting all groups. He wrote: "The great desidératum of Government is such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions, to controul one part of the Society from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the whole Society."27 When this principle is applied to the topic of this article—the validity of Sunday-closing laws—it becomes evident that legislatures enacting such proposals are aiding a particular type of religion. To promote Sunday as a day of societal rest inadvertently supports Sunday-observing religious groups and indirectly harms Sabbath (Saturday)-keeping religious groups (or those groups observing any day other than Sunday).
Thus, while politicians may not clearly see the religious intent behind Sunday-closing laws because of constituents' demands, close scrutiny of the political philosophy behind such legislation indicates that they are a violation of the First Amendment religion clauses because they "respect an establishment of religion" derived from Roman Catholic political and social philosophy. It may be argued that Sunday-rest laws, in order to achieve their intended purpose, should be observed by all citizens. While such laws do not currently include required worship, they are nonetheless a step in that direction because of their deep religious roots. Additionally, since they are all-inclusive in nature—requiring all to rest on a stated day, rather than making exemptions, or allowing for a variety of days for rest to be chosen by the citizenry—they imply a construct of society that reflects the organic societal model inherent to Roman Catholic political philosophy, rather than natural rights of individuals inherent to them.
Sunday laws make up a large part of American religious and legal history. In the secularized environment of a highly pluralistic society, Sunday-rest advocates may appeal to a more general argument of societal well-being divorced from religious connotations to support Sunday legislation. However, if Sunday laws should ever be enforced in America, either at the state or national level, sufficient evidence exists that reveals the implicit religious foundations upon which such arguments are grounded.
No matter how persuasively its advocates present their case, the centuries-long, religiously interwoven history of Sunday-rest laws shows their true character. By virtue of the immense difficulty of distinguishing between a day of rest for worship (religious motivation) and a day of rest for recuperation (sociological/physiological motivation), it is indeed evident that religious groups can argue the latter in order to achieve the former. This reason alone is sufficient grounds to argue against Sunday-rest laws from a historical perspective.
Economic considerations, likewise, have in the past served as a pretext for religious motivations behind such legislation. Analysis of the results of Sunday-closing laws reveals that they do not provide the societal benefit as often imagined. While there may be some minimal benefits, such as reduced crime in certain areas, the overall results weigh heavily against implementing them in society. Especially from an economic consideration, Sunday-closing laws demonstrate that any differences between states enacting Sunday-laws as opposed to those that do not, are negligible.
Finally, consideration of political philosophy reveals that Sunday-rest laws are founded upon Roman Catholic political and social philosophy, contrary to the Lockean concepts of natural rights espoused by Thomas Jefferson and James Madison. If the time should ever arrive when American society would support a national Sunday law, this would imply that the societal construct had mutated from the foundational principles originated by John Locke and that were integral to the founding era of our nation. It would indicate a reconfiguration of society based on Roman Catholic political philosophy, rather than the inalienable rights of the individual with respect to his or her religious convictions.
1 Robert T. Miller and Ronald B. Flowers, Toward Benevolent Neutrality: Church, State, and the Supreme Court, 5th ed. (Waco, Tex.: Baylor University Press, 1996), vol. 1, p. 82.
2 Judith Shulevitz, The Sabbath World: Glimpses of a Different Order of Time (New York: Random House, 2010), p. 61.
3 Ibid., p. 62.
4 Exodus 20:8-11.
5 Nehemiah 13:17-21.
6 A. H. Lewis, A Critical History of Sunday Legislation: From 321 to 1888 A.D. (New York: D. Appleton and Co., 1888), p. 64, as cited by David N. Laband and Deborah Hendry Heinbuch, Blue Laws: The History, Economics, and Politics of Sunday-Closing Laws (Lexington, Mass.: D.C. Heath and Co., 1987), pp. 12, 13.
7 Laband and Heinbuch, p. 30. William Addison Blakely, American State Papers Bearing on Sunday Legislation (Washington, D.C.: Religious Liberty Association, 1911), Virginia, p. 33; Massachusetts, p. 36; Connecticut, p. 42.
8 Eric B. Syme, A History of SDA Church-State Relations in the United States (Mountain View, Calif.: Pacific Press, 1973).
9 Senator Jack Hightower to Ikard Smith, February 4, 1965, Jack Hightower Materials, Section 3: Texas Government, Box 40, File 5, W. R. Poage Legislative Library, Baylor University.
10 Senator Jack Hightower to Mrs. C. W. Stephenson, March 8, 1965, Jack Hightower Materials, Section 3: Texas Government, Box 40, File 5, W. R. Poage Political Materials Library, Baylor University.
11 Senator Jack Hightower, to Mr. Lynn Rieves, March 10, 1965, Jack Hightower Materials, Section 3: Texas Government, Box 40, File 5, W. R. Poage Legislative Library, Baylor University.
12 William G. Harper, The Texas Blue Laws (Hicksville, N.Y.: Exposition Press, 1974).
13 In Spain, a semi-confessional state, the organic model governs society. Catholic political theorists acknowledge the tension between this model and that of the natural rights model. They attempt to reconcile the two by the following formulation found in the Spanish Constitution: "The 'necessary rest' [clause] requires public powers to guarantee rest from labor. This constitutional principle regarding necessary rest has a social character. Contrary to what happens regarding individual liberties, that have as their 'end' the person who is subject to rights, the social principles are directed to public powers that really are those which should make them effective." ("El 'descanso necesario' insta a los poderes publicos a garantizar el descanso laboral. Este principio constitucional al descanso necesario tiene caracter social. Al contrario de lo que sucede con las libertades individuales, que tienen como destinatorio a la persona como sujeto de derechos, los principios sociales estan dirigidos a los poderes publicos que realmente son los que deben hacerlos efectivos.") Jose Eduardo Lopez Ahuamada, Evolucion Normativa de los descansos laborales: Primer centenario de la promulgacion de la Ley de Descanso Dominical de 1904 (Madrid: Ministerio de Trabajo y Asuntos Sociales Subdireccion General de Informacion Administritiva y Publicaciones), p. 96. In essence, social principles given for all of society outweigh individual liberties, especially with respect to a day of rest from labor.
14 Heinrich A. Rommen, The State in Catholic Thought (St. Louis, Mo.: B. Herder Book Co., 1945), p. 132.
15 Ibid., p. 137.
16 Ibid., pp. 137, 138.
17 Ibid., p. 366.
18 To be fair to a Roman Catholic posture regarding religious liberty since Vatican II, it is necessary to recognize that there are some geographical areas in which this view of expediency is implemented, but that in other areas religious liberty is actually considered as a civil, or political, right worthy of constitutional protection.
19 Rommen, pp. 586-592.
20 Ibid., pp. 580, 581.
21 Comisi?n de los Episcopado de la Comunidad Europea (Episcopal Commission for the European Community), aka., COMECE. Accessed on 5/11/2010 from www.aciprensa.com/noticia.php?n=24334.
22 See previous article in this series, "Dies Domini: Labor or Liturgical?" published in Liberty, January/February 2011.
23 Garrett Ward Sheldon, The Political Philosophy of Thomas Jefferson (Baltimore, Md.: Johns Hopkins University Press, 1991), pp. 41-52.
24 Ibid., pp. 55-60.
25 James Madison, "The Nature of Political Society," extracted from Observations, April 1787, and appearing in Saul K. Padover, The Complete Madison: His Basic Writings (New York: Harper and Brothers, 1953), p. 27.
26 James Madison, "Variety of Sects Secures Freedom for All," in Virginia Convention, June 12, 1788, and appearing in Padover, The Complete Madison, p. 306.
27 James Madison, "The Nature of Political Society," extracted from Observations, April 1787, and appearing in Padover, The Complete Madison, p., 29.
Article Author: Edwin C. Cook
Edwin Cook has a doctorate in church-state studies from Baylor University, Waco, Texas. He writes from Waco.