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 Chapter 21

Judicial Confusion and Inconsistencies Regarding Sunday Laws


DURING the nineteenth century, both legislation and judicial findings vacillated between the concepts arising out of the understanding of common law predicated upon the Holy Scriptures on the one hand, and the First Amendment to the American Constitution on the other hand. Thus, legislators and courts enacted laws and handed down decisions that were frequently inconsistent with each other. Some legislators were greatly influenced by mainline churches, who fought fervently for "Christian laws" to be passed in legislatures and upheld in courts. At other times, secularists and minority religions succeeded in their efforts to encourage the legislatures and courts to uphold the intent of the First Amendment. Many legislators and jurists failed to differentiate between the theocratic government of Israel and Judah on the one hand, and the secular government of the United States of America on the other. A judgment by the Supreme Court of the State of Ohio, December 1849, offers some insights into this judicial confusion.

The case involved a transaction that had taken place between Preston Sellers and George Dugan on a Sunday. The plaintiff had not been paid for his sale of four hundred bushels of corn. But because the sale was made on a Sunday, the majority opinion held that no damages could be assessed in favor of the plaintiff. However, in a very well-reasoned dissenting opinion, Justice Caldwell saw the deeper implications in terms of the First Amendment to the American Constitution. Justice Caldwell wrote,

If an act, such as making a single contract on Sunday, that in its nature is not calculated to disturb the peace and quiet of the day, can be made the subject of legal supervision and penal enactment, it can only be on the ground that it is absurdly wrong, immoral. If the legislature can punish one act of this kind, they can another, and the power to persecute, to punish for whatever they may consider abstractly wrong, is unlimited. It is the glory of our country that the right of belief in any particular religious tenet without molestation on account thereof, is granted to every one; but this principle can only be preserved by extending it equally to the unbeliever. It is the same great indivisible principle that alike protects humanity, the birth-right of the whole, which each with equal reason may claim, should he believe any religious creed whatsoever; or should he disbelieve the whole. William Blakely, American State Papers Bearing on Sunday Legislation, 1890

Though in the minority in his opinion, Caldwell has well stated the case against any form of religious legislation or any punishment for peaceable acts that might be transacted on the day that the majority may hold as its sacred day of worship. The whole intent of the Bill of Rights was to protect the minorities in their religious practices and beliefs. Thus any act that in no way infringes the freedom of fellow citizens is protected under the Bill of Rights of the United States.

It is an alarming discovery to recognize that the First Amendment has been frequently violated during the history of the United States. It should also be of great concern to the citizens of this nation who are committed to the preservation of religious freedom, that many of these Sunday laws are still on the legislative books of states or counties. It is true that in most instances they are not being actively enforced. However, should it not be the determined effort of every citizen who avows the First Amendment to the Constitution, to work diligently to have such laws revoked? Only then can citizens be assured that such legislation will not be reactivated to punish otherwise peaceable and law abiding citizens. Of course, that these laws were revoked would not guarantee that in the future such Sunday laws would not be reenacted. It is essential that every succeeding generation be educated in the true freedom that the Constitution of the United States (or any other nation) provides, and the obligation that every citizen has to make sure that, in not the slightest way, that freedom be infringed.

In January 1850, the Supreme Court of Arkansas also upheld Sunday laws. This case involved a grocery store owner who kept his grocery open on the Sabbath [Sunday] day. Ignoring the full intent of the First Amendment of the Constitution, the justices again sought recourse in the arguments of common law.

The Christian religion is recognized as constituting part of the common law; its institutions are entitled to profound respect, and may well be protected by law.

The Sabbath [Sunday], properly called the Lord’s Day, is amongst the first and most sacred institutions of Christianity, and the act for the punishment for Sabbath-breaking [Sunday-breaking] is not in derogation of the liberty of conscience secured to the citizens by the third section of the Declaration of Rights. . . .

Keeping a grocery door open on the Sabbath is a temptation to vice, and therefore criminal. Blakely, p. 146

What is amazing in the opinion rendered by Chief Justice Johnson, is his argument that the court was not violating the First Amendment of the Constitution. Here is a portion of the Justice’s reasoning—

If the act is unauthorized by the Constitution, it must arise from the fact that it interferes with the rights of conscience which are secured by all the Declaration of Rights. A portion of those rights consists in a freedom to worship Almighty God according to the dictates of every one’s conscience, and in not being compellable to attend, erect, or support, any place of worship, or to maintain any ministry against their consent. The acting question cannot, with any degree of propriety, be said to trench upon any one of the rights thus secured. By reserving to every individual the sacred and indefeasible rights of conscience, the convention most certainly did not intend to leave it in his power to do such acts as are civil in themselves and necessarily calculated to bring into contempt the most venerable and sacred institutions of the country. Sunday, or the Sabbath, is properly and emphatically called the Lord’s Day, and is one amongst the first and most sacred institutions of the Christian religion. This system of religion is recognized as constituting a part and parcel of the common law, and as such all the institutions growing out of it, or in any way connected with it, in case they shall not be found to interfere with the rights of conscience, are entitled to the most profound respect, and can rightfully claim the protection of the law making power of the state. Quoted in Blakely, p. 147, 148

In this judgment can clearly be discerned the deep tension between the so-called common law and the First Amendment of the American Constitution. Surely few discerning citizens today would be satisfied with the Chief Justice’s superficial reasoning in respect of the First Amendment. Indeed, all such Sunday laws are a direct infringement of the establishment clause of the First Amendment, for surely Sunday laws, when enacted, do indeed establish one religion at the expense of other forms of religion.

Of course, Arkansas was not alone in offering such reasoning in favor of Sunday laws. In the celebrated New York Supreme Court decision on Sunday laws in the nineteenth century, Mr. Justice Allen claimed,

In most states the [Sunday] legislation has been upheld by the courts and sustained by well-reasoned and able opinion. Quoted in ibid., p. 146

Mr. Justice Allen too based his opinion concerning the constitutionality of Sunday laws upon the alleged fact that Christianity is a part of the common law. (See chapter 15 entitled "Common Law and Religious Freedom," which shows the fallacy of this argument.) Many other opinions rendered in the nineteenth century also depended upon the argument of common law for the basis of their decision to limit religious freedom.

By contrast with many other states, in April 1858, the Supreme Court of California held that Sunday laws were unconstitutional. The case involved a man by the name of Newman who had been convicted before a justice of the peace of the city of Sacramento for a violation of an act to provide for the better observance of the Sabbath. He was sentenced to pay a fine of fifty dollars and the cost of the prosecution—a further twenty dollars. In default he was to be imprisoned for thirty-five days. Failing to pay the fine, he was imprisoned. Newman, who was a Jew, was convicted of the sale of goods on Sunday. Upon his imprisonment he petitioned the court for a writ of Habeas corpus and asked to be discharged from imprisonment on the basis of the unconstitutionality of the law. Chief Justice Terry, rendering the majority opinion, ruled that the act of April 1858,

for the better observance of the Sabbath [Sunday], is in conflict with the first and fourth sections of article first of the Constitution of the State and is therefore void.

Terry argued,

The Constitution, when it forbids discriminational preference in religion, does not mean merely to guarantee toleration, but religious liberty in its largest sense, and a perfect equality without distinction between religious sects. The enforced observance of a day held sacred by one of these sects, is a discrimination in favor of that sect, and a violation of the religious freedom of the others. Quoted in Blakely, p. 166

Justice Terry emphatically emphasized that,

The governmental power only extends to restraining each one in the freedom of his conduct so as to secure perfect protection to all others from every species of danger to person, health, and property; that each individual shall be required so to use his own as not to inflict injury upon his neighbor; and these seem to be all the immunities which can be justly claimed by one portion of society from another, under a government of constitutional limitation. Quoted in ibid.

Justice Terry offered further reasoning for his judgment.

The act in question is in intention and effect a discrimination in favor of one religious profession over all others, and as such is a violation of the Constitution. Quoted in ibid.

Further reasoning by concurring Justice Burnett argued,

Our constitutional theory regards all religion, as such, as equally entitled to protection, and as equally unentitled to preference. When there is no ground of necessity upon which a principle can rest but a religious one, then the Constitution steps in and says that it shall not be enforced by authority of law. The Sunday law violates this provision of the Constitution, because it established as compulsory religious observance. It violates as much the religious freedom of the Christian as of the Jew. The principle is the same, whether the act compels us to do what we wish to do or what we wish not to do. If the legislature had the power to establish a day of compulsory rest, it has the right to select the particular day. The protection of the Constitution extends to every individual or to none. It is the individual that is intended to be protected. Every citizen has the right to vote and worship as he pleases, without having his motives impeached in any tribunal of the state. When the citizen is sought to be compelled by the legislature to do any affirmative religious act, or to refrain from doing anything because it violates simply a religious principle of observance, the act is unconstitutional. The constitutional question is a naked question of legislative power, and the inquiry as to the reasons which operate on the minds of members in voting for the measure, is wholly immaterial. If section first of article first of the Constitution asserts a principle not susceptible of practical application then it may admit of a question whether any principle asserted in the Declaration of Rights can be the subject of judicial enforcement. And if such a position be true, that the right of property cannot be enforced by the court against an act of the legislator, a power is then conceded which renders the provisions of the other sections wholly inoperative. Quoted in Blakely, p. 166, 167

The authors heartily endorse the majority opinion in this California case and the validity of the reasons for this opinion. Such reasoning effectuates a complete withdrawal from the domination of common law principles and firmly instates the freedom principles of the First Amendment of the Bill of Rights. We urge the citizens of all nations to support and peacably agitate this position by voice, pen, and vote.


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