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Closed on Sunday

In states where Republican majorities could easily enact blue laws, they should.

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In 1961, Chief Justice Earl Warren wrote in the majority opinion of McGowan v. Maryland that “Sunday is a day apart from all others. The cause is irrelevant; the fact exists.”

While the cause was likely more relevant than Warren was willing to admit, he correctly observed that the practice of Sunday living in the early 1960s set the day apart from all the rest. The justice and his colleagues on the Court were considering a case in which seven employees at a large, highway department store in Anne Arundel County, Maryland, sold a three-ring loose-leaf binder, a can of floor wax, a stapler, staples, and a toy submarine on a Sunday. After the employees were charged with the crime, the dispute eventually made its way to the Supreme Court, which ruled 8–1 that Maryland’s blue laws did not violate the Free Exercise and Religious Establishment Clauses of the First Amendment. 

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Three other cases before the Court during that session (Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., Braunfeld v. Brown, and Two Guys from Harrison-Allentown, Inc. v. McGinley) all communicated the same thing: States have the authority to set and enforce blue laws in their respective jurisdictions. 

Warren’s common law justification for these Sunday closing laws was found in the English jurist William Blackstone, whom he quoted at length: 

The keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.

In other words, blue laws are for the working class. While the rich and those in the upper middle class can excuse themselves from work with varied flexibility, those in the working class are confronted with the sort of downward-facing market pressure that does not afford the same alleviation barring explicit legal relief. 

Justice Stephen J. Field said as much as in his unanimous opinion of the 1885 case Soon Hing v. Crowley: “Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops, and in the heated rooms of our cities, and their validity has been sustained by the highest courts of the states.”

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Field had been a voice crying in the wilderness in support of blue laws while he sat on the supreme court of a state always ahead of the tradition-defying curve. In the court’s 1858 case Ex Parte Newman, Field was the lone dissent in a ruling that found the state’s law setting the norms for Sunday closing laws unconstitutional. In that dissent, he wrote of these laws with his typical zeal: “There is no nation, possessing any degree of civilization, where the rule is not observed, either from the sanctions of the law, or the sanctions of religion.”

Field’s tenure on the nation’s court gave him a reputation for promoting a strong federal government, cf. his impassioned dissent in the 1873 Slaughter-House Cases. The length of his service was only surpassed by that of William O. Douglas, who still holds the record for longest-serving justice at almost 37 years. 

But where the two aligned in longevity, they differed in ideology. Douglas, who later went on to put the nail in the coffin of any distinction between liberty and license in his Griswold v. Connecticut majority opinion, penned the lone dissent in McGowan. In it, he refuses to indulge the liberal tendency to promote religion as a means to political or even cultural cohesion. 

“The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish—whether the result is…to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind,” he says, “government must be neutral.”

Under William Douglas’s jurisprudence, God’s adoring angels have definitely not heard of the First Amendment.

Later in the dissent, Douglas offers a scenario that throws the floodgates wide open: “Suppose Moslems grew in political strength here and got a law through a state legislature making it a crime to keep a shop open on Fridays. Would the rest of us have to submit under the fear of criminal sanctions?”

The justices share their draft opinions with their colleagues before they go to press, so it’s worth considering whether any justices changed their position based on Douglas’s rhetorical question. After all, it wouldn’t have taken a neurotic to tremble at William Douglas’s vision of America: an Afghan-born governor-elect of Iowa, stepping up for his inauguration speech next to one of his burka-clad wives.

But Douglas also cites a reasonable critique in his dissent. Quoting the liberal Catholic John Cogley, he acknowledges that each of America’s religions (Protestantism, Catholicism, and Judaism) are “characteristically ‘American,’ some think flavorlessly so.” He goes on, “For religion in America is almost uniformly ‘respectable,’ bourgeois, and prosperous.”

He certainly has a point there. Any nation that translates a matter of divine law into a debatable issue must be too respectable for its own good. Whether Cogley wished his analysis to impel his fellow countrymen to a more radical expression of faith is a question of its own. But for Douglas’s part, Cogley’s observations were sufficient evidence for the irrelevance of religious laws for an irreligious people. 

Douglas’s vision of the nation drags her norms down to the lowest common denominator, taking a page from Mill’s harm principle: “The religious regime of every group must be respected—unless it crosses the line of criminal conduct.” Every religion must be respected, except for the religion of the majority. Though he was the lone voice on the bench in 1961, Douglas’s voice eventually won out. These days, the only news pieces published about blue laws are those documenting repeals of “archaic” statutes in states across political majorities. The laws that remain are typically limited to the sale of alcohol or vehicles. 

In April 2020, Indiana Gov. Eric Holcomb signed a bill that allowed the sale of alcohol on Sundays at grocery, convenience, drug, and liquor stores. At the signing ceremony, he said, “The prohibition of Sunday sales in the state of Indiana is over. This is just yet another example, in a long list of examples, where the state of Indiana has sought to and indeed modernized our laws to meet consumer expectation. I think we’ve not just met it, but we’ve exceeded it.”

Then, in July 2021, the state of New York repealed a criminal law that made it a misdemeanor for barbers to work on Sundays. In a tweet, Gov. Andrew Cuomo said, “It’s not splitting hairs to say that barbers should be able to work any day they want.” 

And two months earlier in May 2021, Texas Gov. Greg Abbott signed a bill that allowed restaurants to sell alcohol to-go on Sundays. Two days after the bill was signed, fellows at the libertarian R Street Institute published an op-ed in the Dallas Morning News, saying, “Now it’s time to scrap blue laws.” The authors used the momentum of the time to accelerate a principle of legal realism: “Originally based on the desire to limit what items were sold on the Sabbath, these laws no longer make much sense in our complex 21st century marketplace.”

It’s possible that doing away with blue laws would maximize efficiency, unleashing the market to consistently respond to the demands of the consumer. Perhaps their repeal would strengthen the position of the American economy in the global marketplace and modernize American culture past the ritualism that many of its people don't seem to care about. The repeal of blue laws would be politically expedient: The generation that remembers their common practice is dying, and a politics of the future will shun this sort of anachronistic nostalgia. 

These arguments may be compelling for the shrewd legislator used to taking safe positions on safe issues, but for those with the slightest political imagination, they are as unexciting as they are impotent. 

As legislatures and executives in Republican-majority states start to show their muscle in response to issues of the day (abortion pills, gender surgeries for children, critical race theory, central bank digital currency), those with imagination are in the position to offer something more to their voters than coddling their expectations for cheap t-shirts and television sets. As President Trump’s trade ambassador Robert Lighthizer made clear in TAC’s interview with him last summer, it is the role of policymakers and legislators to prioritize what he calls “production and community values” over “price optimization and consumption.”

What has driven this push away from Sunday closing laws: production and community values, or price optimization and consumption? In New York, one-man barber shops that used to close their doors on Sundays now face imbalanced competition from franchised shops facing pressure from their franchisors to keep up with demand and maintain the company brand. In Texas, the move to permit consumers to purchase alcohol to-go any day of the week was later used as leverage for a sweeping shift toward more liberal consumption. 

The class that has been overlooked in this vision of law as an elastic guardrail around consumption is the producers. If the nation is meant to last, if she, in the words of Justice Field, is to possess any degree of civilization, then perhaps these archaic statutes could find a place in states wise enough to enact them: It is wholly within the authority of states such as Wyoming, North Dakota, West Virginia, Oklahoma, and the rest to enact these laws for the sake of their working classes. 

Again, the purpose of these laws, according to Justice Warren, is not merely to put a one-day stop to otherwise perpetual work. In addition to this goal, 

the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility -- a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.

Warren is not calling for an endless sabbath, but a temporary one, when citizens are offered the time and space to live as they ought. This is the talk of a nation marching toward prosperity. But under our current regime, we say that the sabbath was not made for man, but man for endless work. This is the talk of a nation marching toward decline.