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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