420 Opinion of FRANKFURTER, J. tions of judges who, in the conscientious discharge of obligations as solemn as our own, have sustained the Sunday laws as not inspired by religious purpose. The Court did not ignore that opinion in Friedman v. New York, 341 U. S. 907; McGee v. North Carolina, 346 U. S. 802; Kidd v. Ohio, 358 U. S. 132; and Ullner v. Ohio, 358 U. S. 131, dismissing for want of a substantial federal question appeals from state decisions sustaining Sunday laws which were obnoxious to the same objections urged in the present cases. I cannot ignore that consensus of view now. The statutes of Maryland, Massachusetts and Pennsylvania which we here examine are not constitutionally forbidden fusions of church and state.101 100 wealth v. Cavalerro, 142 Legal Intelligencer 519 (Phila., Ap. 22, 1960) (Pa..Q. S. 1960). Another Pennsylvania court of first impression shortly thereafter reached the same conclusions. Bargain City U. S. A., Inc., v. Dilworth, 142 Legal Intelligencer 813 (Phila., June 22, 1960) (Pa. C. P. 1960). These appear to be the only two standing state-court decisions striking down Sunday laws, as, in part, violative of religious freedom, in a century and a half of litigation. In District of Columbia v. Robinson, 30 App. D. C. 283 (1908), the Court of Appeals, while recognizing the validity as civil regulations of modern Sunday closing statutes, held the 1723 Maryland Sunday law obsolete and inapplicable in the District of Columbia, largely on the ground that its purpose was religious. Compare O'Hanlon v. Myers, 10 Rich. L. 128 (S. C. 1856). In BrunswickBalke-Collander Co. v. Evans, 228 F. 991 (D. C. D. Ore. 1916), app. dism'd, 248 U. S. 587, a Federal District Court sustained Oregon's general closing law against contentions that it violated religious freedom. Cf. Swann v. Swann, 21 F. 299 (C. C. E. D. Ark. 1884); In re King, 46 F. 905 (C. C. W. D. Tenn. 1891). 100 Appeals in cases challenging Sunday laws as violative of the Due Process Clause, were also dismissed for want of a substantial federal question in Gundaker Central Motors, Inc., v. Gassert, 354 U. S. 933, and Grochowiak v. Pennsylvania, 358 U. S. 47. 101 This does not, of course, imply an opinion of the legitimacy of all the Sunday provisions of all the States, or of every application of the statutes now before this Court. It is true that the Massachu Opinion of FRANKFURTER, J. 366 U.S. V. Appellees in the Gallagher case and appellants in the Braunfeld case contend that, as applied to them, Orthodox Jewish retailers and their Orthodox Jewish customers, the Massachusetts Lord's day statute and the Pennsylvania Sunday retail sales act violate the Due Process Clause of the Fourteenth Amendment because, in effect, the statutes deter the exercise and observance of their religion. The argument runs that by compelling the Sunday closing of retail stores and thus making unavailable for business and shopping uses one-seventh part of the week, these statutes force them either to give up the Sabbath observance an essential part of their faith-or to forego advantages enjoyed by the non-Sabbatarian majority of the community. They point out, moreover, that because of the prevailing five-day working week of a large proportion of the population, Sunday is a day peculiarly profitable to retail sellers and peculiarly convenient to retail shoppers. The records in these cases support them in this. The claim which these litigants urge assumes a number of aspects. First, they argue that any one-common-daysetts courts have at times expressed an intention to apply the Massachusetts Lord's day statute in accordance with the temper in which its historical antecedents were enacted. Compare the language of Davis v. City of Somerville, 128 Mass. 594 (1880); Commonwealth v. Dextra, 143 Mass. 28, 8 N. E. 756 (1886); Commonwealth v. White, 190 Mass. 578, 77 N. E. 636 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 138 N. E. 835 (1923), with the Virginia cases, Francisco v. Commonwealth, 180 Va. 371, 23 S. E. 2d 234 (1942), and Rich v. Commonwealth, 198 Va. 445, 94 S. E. 2d 549 (1956). See Commonwealth v. Sampson, 97 Mass. 407 (1867). But see Stone v. Graves, 145 Mass. 353, 13 N. E. 906 (1887). It will be time enough to pass upon the constitutionality of such applications as do not reasonably come within the rationale of the present decision, and of Commonwealth v. Has, 122 Mass. 40, 42 (1877) if and when those cases arise. See Brattle Films, Inc., v. Commis sioner of Public Safety, 333 Mass. 58, 127 N. E. 2d 891 (1955). 420 Opinion of FRANKFURTER, J. of-closing regulation which selected a day other than their Sabbath would be ipso facto unconstitutional in its application to them because of its effect in preferring persons who observe no Sabbath, therefore creating economic pressures which urge Sabbatarians to give up their usage. The creation of this pressure by the Sunday statutes, it is said, is not so necessary a means to the achievement of the ends of day-of-rest legislation as to justify its employment when weighed against the injury to Sabbatarian religion which it entails. Six-day-week regulation, with the closing day left to individual choice, is urged as a more reasonable alternative. Second, they argue that even if legitimate state interests justify the enforcement against persons generally of a single common day of rest, the choice of Sunday as that day violates the rights of religious freedom of the Sabbatarian minority. By choosing a day upon which Sundayobserving Christians worship and abstain from labor, the statutes are said to discriminate between religions. The Sunday observer may practice his faith and yet work six days a week, while the observer of the Jewish Sabbath, his competitor, may work only during five days, to the latter's obvious disadvantage. Orthodox Jewish shoppers whose jobs occupy a five-day week have no week-end shopping day, while Sunday-observing Christians do. Leisure to attend Sunday services, and relative quiet throughout their duration, is assured by law, but no equivalent treatment is accorded to Friday evening and Saturday services. Sabbatarians feel that the power of the State is employed to coerce their observance of Sunday as a holy day; that the State accords a recognition to Sunday Christian doctrine which is withheld from Sabbatarian creeds. All of these prejudices could be avoided, it is argued, without impairing the effectiveness of common-day-of-rest regulation, either by fixing as the rest time some day which is held sacred by no sect, or by pro Opinion of FRANKFURTER, J. 366 U.S. viding for a Sunday work ban from which Sabbatarians are excepted, on condition of their abstaining from labor on Saturday. Failure to adopt these alternatives in lieu of Sunday statutes applicable to Sabbatarians is said to constitute an unconstitutional choice of means. Finally, it is urged that if, as means, these statutes are necessary to the goals which they seek to attain, nevertheless the goals themselves are not of sufficient value to society to justify the disadvantage which their attainment imposes upon the religious exercise of Sabbatarians. The first of these contentions has already been discussed. The history of Sunday legislation convincingly demonstrates that Sunday statutes may serve other purposes than the provision merely of one day of physical stoppage in seven. These purposes fully justify common-day-of-rest statutes which choose Sunday as the day. In urging that an exception in favor of those who observe some other day as sacred would not defeat the ends of Sunday legislation, and therefore that failure to provide such an exception is an unnecessary—hence an unconstitutional-burden on Sabbatarians, the Gallagher appellees and Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday.102 Actually, in less than half of these twenty-one States does the exemption extend to 102 Wisconsin, which does not have a general ban on Sunday. labor, but does have a statute prohibiting automobile trading on that day, also makes an exception in favor of those who conscientiously observe the Jewish Sabbath. West's Wis. Stat. Ann., 1961 Supp., § 218.01 (3) (a) 21. Other jurisdictions having statutes which cover only one or a few enumerated activities provide no Sabbatarian exception. Fla. Laws 1959, Special Acts, c. 59-1650, a local-option shop-closing statute applicable to Orange County, does contain such an exception, and in Michigan there are similar excepting clauses attached to barbering and auto-trading bans as well as to the general Sunday laws. Mich. Stat. Ann., 1957 Rev. Vol., §§ 18.122, 9.2702. 420 Opinion of FRANKFURTER, J. 103 sales activity as well as to labor." There are tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police 103 In Kansas, Massachusetts, Missouri, New Jersey, New York, North Dakota, Rhode Island, South Dakota, Texas, Washington, and probably in Connecticut and Maine, the exception does not cover the sale of goods. Kan. Gen. Stat. Ann., 1949, § 21-953, State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Mass. Gen. Laws Ann., 1958, c. 136, § 6, Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Starr, 144 Mass. 359, 11 N. E. 533 (1887); Commonwealth v. Kirshen, 194 Mass. 151, 80 N. E. 2 (1907); Vernon's Mo. Stat. Ann., 1953, § 563.700; N. J. Stat. Ann., 1953, § 2A:171-4; McKinney's N. Y. Laws, Pen. Law § 2144, People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U. S. 907; cf. People v. Adler, 174 App. Div. 301, 160 N. Y. S. 539 (1916) (manufacturing activities); N. D. Century Code, 1960, § 12-21-17; R. I. Gen. Laws, 1956, § 11-40-4 (shops, mechanical work in compact plates, etc.); S. D. Code, 1939, § 13.1710; Vernon's Tex. Stat., 1932, Pen. Code, Art. 284; Wash. Rev. Code, 1959, § 9.76.020, State v. Grabinski, 33 Wash. 2d 603, 206 P. 2d 1022 (1949); Conn. Gen. Stat. Rev., 1958, § 53-303; Me. Rev. Stat., 1954, c. 134, § 44. Cf. State v. Weiss, 97 Minn. 125, 105 N. W. 1127 (1906). The exemption in Indiana, Kentucky, Michigan, Nebraska, Ohio, Oklahoma, Virginia and West Virginia does extend to selling, but in the last two named States an exempted person may not employ other persons not of his belief on Sunday. Burns' Ind. Stat. Ann., 1956 Replacement Vol., § 10-4301; Ky. Rev. Stat., 1960, § 436.160, Cohen v. Webb, 175 Ky. 1, 192 S. W. 828 (1917); Mich. Stat. Ann., 1957 Rev. Vol., §§ 18.855, 18.856 (1), Builders Assn. v. City of Detroit. 295 Mich. 272, 294 N. W. 677 (1940), semble; Neb. Rev. Stat., 1956 Reissued Vol., § 28-940; Page's Ohio Rev. Code Ann., 1954, § 3773.24; Okla. Stat. Ann., 1958, Tit. 21, § 909, Krieger v. State, 12 Okla. Cr. 566, 160 P. 36 (1916); Va. Code, 1960 Replacement Vol., § 18.1-359; W. Va. Code Ann., 1955, c. 61, Art. 8, § 18 [6073]. The meaning of the provision in Illinois, Ill. Rev. Stat., 1959, c. 38, § 549, is not clear. |