The Law: Blue Sunday

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In pre-Revolutionary times, any person who dared to: 1) do business, or 2) have fun on the Lord's Day could be fined, whipped or locked up in the stocks. Each of the original 13 Colonies had laws limiting Sunday activities in one way or another. Even today, every state except Alaska has its "blue laws"—so called because New England Puritans, who started it all, adopted the color blue in opposition to the red emblem of British royalty.

What has grown up is a legal crazy quilt. In New York, for example, saloons may uncork their Sunday bottles at 1 p.m., but Sunday baseball games may not begin until an hour later. In Pennsylvania, merchants may sell books on Sunday, but not records. In North Dakota, shoeshine boys may work on Sunday, but no one may buy shoe polish.

It is hardly surprising that the blue laws are controversial. What is surprising is that only last week did the U.S. Supreme Court get around to ruling on their constitutionality. In two key tests, the court upheld the laws and turned down the argument that they violate the principle of separation of church and state.

"For Late Sleeping." The first test was brought by two Sunday-selling discount houses. They contended that, since the statutes traced back to pre-Revolutionary days, they were plainly designed so that a state could aid and enforce a religion—something that was later outlawed by the First Amendment. The court rebuffed the challenge, 8 to 1.

Chief Justice Earl Warren admitted that the laws grew out of religious soil, but added that they are now intended to promote national comfort more than a national church. Said he: "People of all religions and people with no religion regard Sunday as a time for family activity, for late sleeping, for passive and active entertainments, for dining out and the like."

"Cruel Choice." In the second test, separate groups of orthodox Jews contended that the blue laws discriminated against them. The reason: their religion requires that they refrain from working or buying on the Jewish Sabbath, which runs from Friday sundown to Saturday sundown. Thus they cannot do business on either Saturday or Sunday.

The court ruled against them in separate decisions, 6 to 3 and 5 to 4. Warren, again writing for the majority, held that the Sunday closing does not prohibit the free exercise of religion, although he did say that the law "operates so as to make the practice of [orthodox Jews'] religious beliefs more expensive." But the dissents were sharp. "The law," wrote Justice Potter Stewart, "compels an orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no state can constitutionally demand."

All of which hands right back to the states the responsibility for bringing reason to blue-law confusion.