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Sunday Closing Laws

§ 13.08
Key point 13-08. Local ordinances requiring some or all businesses to be closed on Sundays do not violate the First Amendment's Nonestablishment of Religion Clause.

The Supreme Court has upheld the validity of Sunday closing laws against the claim that they constitute the establishment of the Christian religion.[66] Braunfeld v. Brown, 366 U.S. 599 (1961); McGowan v. Maryland, 366 U.S. 420 (1961). The Court has observed:

[T]he "establishment" clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. … Sunday is a day apart from all others. The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord.[67 ] McGown v. Maryland, 366 U.S. 420, 442, 452 (1961).

Numerous state and lower federal court rulings have upheld the validity of Sunday closing laws against the contentions that such laws (1) are unconstitutionally vague and uncertain in describing the activities that are either forbidden or allowed,[68] See, e.g., Mack Paramus Co. v. Borough of Paramus, 549 A.2d 474 (N.J. Super. 1988); Hechinger Co. v. State's Attorney, 326 A.2d 742 (Md. 1974); Voronado, Inc. v. Hyland, 390 A.2d 606 (N.J. 1978), appeal dismissed, 439 U.S. 1123 (1978); Charles Stores Co. v. Tucker 140 S.E.2d 370 (N.C. 1965). (2) unconstitutionally discriminate against religions that do not observe a Sunday sabbath,[69] See, e.g., Mack Paramus Co. v. Borough of Paramus, 549 A.2d 474 (N.J. Super. 1988); Raleigh Mobile home Sales, Inc. v. Tomlinson, 174 S.E.2d 542 (N.C. 1970); State v. Giant of St. Albans, Inc., 268 A.2d 739 (Vt. 1970). (3) "establish" a religion,[70] See, e.g., Discount Records, Inc. v. City of North Little Rock, 671 F.2d 1220 (8th Cir. 1982); Epstein v. Maddox, 277 F. Supp. 613 (N.D. Ga. 1967), aff'd, 401 F.2d 777 (1967); Mandel v. Hodges, 127 Cal. Rptr. 244 (Cal. 1976); People v. Acme Markets, Inc., 372 N.Y.S.2d 590 (1975). (4) constitute an impermissible exercise of the police power,[71] See, e.g., Lockwood v. State, 462 S.W.2d 465 (Ark.1971); State v. Underwood, 195 S.E. 2d 489 (N.C. 1973). (5) arbitrarily discriminate between those commodities that may be sold and those that may not,[72] See, e.g., Zayre v. City of Atlanta, 276 F. Supp. 892 (N.D. Ga. 1967); Genesco, Inc. v. J. C. Penney Co., Inc., 313 So.2d 20 (Miss. 1975); State v. K Mart, 359 A.2d 492 (N.J. 1976). (6) deny the equal protection of the laws,[73] See, e.g., Hames Mobile Homes, Inc. v. Sellers, 343 F. Supp. 12 (N.D. Iowa 1972); Southway Discount Center, Inc. v. Moore, 315 F. Supp. 617 (N.D. Ala. 1970); Supermarkets General Corp. v. State, 409 A.2d 250 (Md. 1979). (7) violate merchants' constitutional right of "commercial speech,"[74] See, e.g., Mack Paramus Co. v. Borough of Paramus, 549 A.2d 474 (N.J. Super. 1988). and (8) are invalid due to lax and inconsistent enforcement.[75] Id.

The Virginia Supreme Court ruled that a state Sunday closing law violated the Virginia Constitution's prohibition against "special laws."[76] Benderson Development Co. v. Sciortino, 372 S.E.2d 751 (Va. 1988). Virginia enacted its first Sunday closing law in 1610. During the colonial period, this law had a religious purpose, requiring every person "to repair in the morning to the divine service." During the Revolutionary War, in 1779, a Sunday closing law was substituted that had an entirely "secular" purpose —to "prevent the physical and moral debasement which comes from uninterrupted labor." The 1779 law survived until 1960, when the state legislature enacted a new law. In 1974, the legislature completely rewrote the Sunday closing law. The 1974 law generally prohibited commercial establishments to do business on Sunday, but exempted more than 60 "industries and businesses" from the prohibition, and permitted cities and counties to exempt themselves entirely from the law by a referendum vote. These exemptions left only about 20 percent of the Virginia workers subject to the law.

Under these facts, the state supreme court concluded that the 1974 law violated a provision in the Virginia Constitution prohibiting "special laws" exempting private companies from the reach of any general law unless the exemption bore "a reasonable and substantial relation to the object sought to be accomplished by the legislation." The court noted that the purpose of the law was to provide the people of Virginia with a common day of rest, and concluded that the exemption of 80 percent of the businesses and employees in the state from the reach of the Sunday closing law clearly indicated that the many exemptions did not bear a reasonable relationship to the object sought to be accomplished by the law. Accordingly, the law violated the ban on special legislation.

The court further held that the Virginia law did not violate the United States Constitution's guaranty of the "equal protection of the laws," since such a standard was more easily satisfied than the state constitution's "special laws" provision. Accordingly, other states will not be able to rely on the Virginia court's decision unless their state constitutions contain a similar ban on special legislation.

In a related matter, one court has held that the Establishment Clause was violated by an order of the governor of California granting state employees paid time off on Good Friday,[77] Mandel v. Hodges, 127 Cal. Rptr. 244 (1976). although the same court a year later approved the validity of a Good Friday holiday for public school employees.[78] California School Employees Association v. Sequoia Union High School District, 136 Cal. Rptr. 594 (1977). Another court, in upholding the constitutionality of a Hawaii law declaring Good Friday to be a legal holiday, observed:

[T]he primary purpose of the statute which establishes Good Friday as a legal holiday was to increase the number and frequency of legal holidays. This purpose is clearly secular. The court also finds that the primary effect of the statute is secular. The Good Friday holiday allows the people of Hawaii to play or pray as they see fit. Even the plaintiffs concede that many more people can be found in Hawaii's parks and shopping malls on Good Friday than can be found in its churches. Moreover, this court's finding that Good Friday is similar in nature to Thanksgiving and Christmas provides additional ground for insulating the Good Friday holiday from a successful constitutional challenge. Just as Christmas and Thanksgiving are permissible because of their partially secular observations and because they provide a uniform day of rest and relaxation for Americans, Good Friday has attained a secular position in this nation's traditional fabric and provides citizens of Hawaii with a uniform day of rest.[79] Cammack v. Waihee, 673 F. Supp. 1524, 1539-40 (D. Hawaii 1987).

One court struck down a state law prohibiting the sale of alcoholic liquor on Good Friday on the ground that the law constituted an impermissible establishment of a religion.[80] Griswold Inn, Inc. v. State, 441 A.2d 16 (Conn. 1981).

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