U.S. Supreme Court McGowan v. Maryland, 366
U.S. 420 (1961) McGowan v. Maryland No. 8 Argued December 8,
1960 Decided May 29, 1961 366
U.S. 420 APPEAL FROM THE COURT OF APPEALS OF
MARYLAND Syllabus Appellants, employees of a large department store on a highway
in Anne Arundel County, Md., were convicted and fined in a Maryland
State Court for selling on Sunday a loose-leaf binder, a can of
floor wax, a stapler, staples and a toy, in violation of
Md.Ann.Code, Art. 27, § 521, which generally prohibits the sale on
Sunday of all merchandise except the retail sale of tobacco
products, confectioneries, milk, bread, fruit, gasoline, oils,
greases, drugs, medicines, newspapers and periodicals. Recent
amendments now except from the prohibition the retail sale in Anne
Arundel County of all foodstuffs, automobile and boating
accessories, flowers, toilet goods, hospital supplies and
souvenirs, and exempt entirely any retail establishment in that
County which employs not more than one person other than the owner.
There are many other Maryland laws which prohibit specific
activities on Sundays or limit them to certain hours, places or
conditions. Held: Art. 27, § 521 does not violate the Equal
Protection or Due Process Clause of the Fourteenth Amendment or
constitute a law respecting an establishment of religion, within
the meaning of the First Amendment, which is made applicable to the
States by the Fourteenth Amendment. Pp. 366 U. S.
422 -453.

															1. Art. 27, § 521 does not violate the Equal Protection Clause
of the Fourteenth Amendment. Pp. 366 U. S.
425 -428.

															(a) On the record in this case, it cannot be said that the
classifications made by the statute are without rational and
substantial relation to the objects of the legislation, so as to
exceed the wide discretion permitted the States in enacting laws
which affect some groups of citizens differently from others. Pp. 366 U. S.
425 -427.

															(b) Provisions of the statute which permit only certain Anne
Arundel County retailers to sell merchandise essential to, or
customarily sold at, or incidental to, the operation of bathing
beaches, amusement parks, etc., do not discriminate invidiously
against retailers in other Maryland counties. P. 366 U. S.
427 .

															(c) The Equal Protection Clause is not violated by Art . 27, §
509, which permits only certain merchants in Anne Arundel County
(operators of bathing beaches, amusement parks, etc.) Page 366 U. S. 421 to sell merchandise customarily sold at such places while
forbidding its sale by other vendors, such as appellants' employer.
Pp. 366 U. S.
427 -428.

															2. Art. 27, § 509, which exempts retail sales of "merchandise
essential to, or customarily sold at, or incidental to, the
operation of" bathing beaches, amusement parks, etc., is not so
vague as to violate the Due Process Clause of the Fourteenth
Amendment. Pp. 366 U. S.
428 -429.

															3. Art. 27, § 521 is not a law respecting an establishment of
religion, within the meaning of the First Amendment. Pp. 366 U. S.
429 -453.

															(a) Since appellants allege only economic injury to themselves,
and do not allege any infringement of their own religious freedoms,
they have no standing to raise the question whether the statute
prohibits the free exercise of religion, contrary to the First
Amendment. Pp. 366 U. S.
429 -430.

															(b) Since appellants have suffered direct economic injury,
allegedly due to the imposition on them of the tenets of the
Christian religion, they have standing to complain that the statute
is a law respecting an establishment of religion. Pp. 366 U. S.
430 -431.

															(c) In the light of the evolution of our Sunday Closing Laws
through the centuries, and of their more or less recent emphasis
upon secular considerations, it is concluded that, as presently
written and administered, most of them, at least, are of a secular,
rather than of a religious, character, and that presently they bear
no relationship to establishment of religion, as those words are
used in the Constitution of the United States. Pp. 366 U. S.
431 -444.

															(d) The present purpose and effect of most of our Sunday Closing
Laws is to provide a uniform day of rest for all citizens, and the
fact that this day is Sunday, a day of particular significance for
the dominant Christian sects, does not bar the State from achieving
its secular goals. Pp. 366 U. S.
444 -445.

															(e) After engaging in the close scrutiny demanded of it when
First Amendment liberties are at issue, this Court accepts the
determination of the State Supreme Court that the present purpose
and effect of the statute here involved is not to aid religion, but
to set aside a day of rest and recreation. Pp. 366 U. S.
445 -449.

															(f) This Court rejects appellants' contention that the State has
other means at its disposal to accomplish its secular purpose that
would not even remotely or incidentally give state aid to religion.
Pp. 366 U. S.
449 -453.

															220 Md. 117, 151 A.2d 156, affirmed. Page 366 U. S. 422 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

															The issues in this case concern the constitutional validity of
Maryland criminal statutes, [ Footnote 1 ] commonly known as Sunday Closing Laws or
Sunday Blue Laws. These statutes, with exceptions to be noted
hereafter, generally proscribe all labor, business and other
commercial activities on Sunday. The questions presented are
whether the classifications within the statutes bring about a
denial of equal protection of the law, whether the laws are so
vague as to fail to give reasonable notice of the forbidden conduct
and therefore violate due process, and whether the statutes are
laws respecting an establishment of religion or prohibiting the
free exercise thereof.

															Appellants are seven employees of a large discount department
store located on a highway in Anne Arundel County, Maryland. They
were indicted for the Sunday sale of a three-ring loose-leaf
binder, a can of floor wax, a stapler and staples, and a toy
submarine in violation of Md.Ann.Code, Art. 27, § 521. Generally,
this section prohibited, throughout the State, the Sunday sale of
all merchandise except the retail sale of tobacco products,
confectioneries, milk, bread, fruits, gasoline, oils, greases, Page 366 U. S. 423 drugs and medicines, and newspapers and periodicals. Recently
amended, this section also now excepts from the general prohibition
the retail sale in Anne Arundel County of all foodstuffs,
automobile and boating accessories, flowers, toilet goods, hospital
supplies and souvenirs. It now further provides that any retail
establishment in Anne Arundel County which does not employ more
than one person other than the owner may operate on Sunday.

															Although appellants were indicted only under § 521, in order
properly to consider several of the broad constitutional
contentions, we must examine the whole body of Maryland Sunday
laws. Several sections of the Maryland statutes are particularly
relevant to evaluation of the issues presented. Section 492 of
Md.Ann.Code, Art. 27, forbids all persons from doing any work or
bodily labor on Sunday and forbids permitting children or servants
to work on that day or to engage in fishing, hunting and unlawful
pastimes or recreations. The section excepts all works of necessity
and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the
opening or use of any dancing saloon, opera house, bowling alley or
barber shop on Sunday. However, in addition to the exceptions noted
above, Md.Ann.Code, Art. 27, § 509, exempts, for Anne Arundel
County, the Sunday operation of any bathing beach, bathhouse,
dancing saloon and amusement park, and activities incident thereto
and retail sales of merchandise customarily sold at, or incidental
to, the operation of the aforesaid occupations and businesses.
Section 90 of Md.Ann.Code, Art. 2B, makes generally unlawful the
sale of alcoholic beverages on Sunday. However, this section, and
immediately succeeding ones, provide various immunities for the
Sunday sale of different kinds of alcoholic beverages, at different
hours during the day, by vendors holding different types of
licenses, in different political divisions of the State --
particularly Page 366 U. S. 424 in Anne Arundel County. See Md.Ann.Code, Art. 2B, §
28(a).

															The remaining statutory sections concern a myriad of exceptions
for various counties, districts of counties, cities and towns
throughout the State. Among the activities allowed in certain areas
on Sunday are such sports as football, baseball, golf, tennis,
bowling, croquet, basketball, lacrosse, soccer, hockey, swimming,
softball, boating, fishing, skating, horseback riding, stock car
racing and pool or billiards. Other immunized activities permitted
in some regions of the State include group singing or playing of
musical instruments; the exhibition of motion pictures; dancing;
the operation of recreation centers, picnic grounds, swimming
pools, skating rinks and miniature golf courses. The taking of
oysters and the hunting or killing of game is generally forbidden,
but shooting conducted by organized rod and gun clubs is permitted
in one county. In some of the subdivisions within the State, the
exempted Sunday activities are sanctioned throughout the day; in
others, they may not commence until early afternoon or evening; in
many, the activities may only be conducted during the afternoon and
late in the evening. Certain localities do not permit the allowed
Sunday activity to be carried on within one hundred yards of any
church where religious services are being held. Local ordinances
and regulations concerning certain limited activities supplement
the State's statutory scheme. In Anne Arundel County, for example,
slot machines, pinball machines and bingo may be played on
Sunday.

															Among other things, appellants contended at the trial that the
Maryland statutes under which they were charged were contrary to
the Fourteenth Amendment for the reasons stated at the outset of
this opinion. Appellants were convicted, and each was fined five
dollars and costs. The Maryland Court of Appeals affirmed, 220 Page 366 U. S. 425 Md. 117, 151 A.2d 156; on appeal brought under 28 U.S.C. §
1257(2), we noted probable jurisdiction. 362 U.S. 959. I Appellants argue that the Maryland statutes violate the "Equal
Protection" Clause of the Fourteenth Amendment on several counts.
First, they contend that the classifications contained in the
statutes concerning which commodities may or may not be sold on
Sunday are without rational and substantial relation to the object
of the legislation. [ Footnote
2 ] Specifically, appellants allege that the statutory
exemptions for the Sunday sale of the merchandise mentioned above
render arbitrary the statute under which they were convicted.
Appellants further allege that § 521 is capricious because of the
exemptions for the operation of the various amusements that have
been listed and because slot machines, pin-ball machines, and bingo
are legalized and are freely played on Sunday.

															The standards under which this proposition is to be evaluated
have been set forth many times by this Court. Although no precise
formula has been developed, the Court has held that the Fourteenth
Amendment permits the States a wide scope of discretion in enacting
laws which affect some groups of citizens differently than others.
The constitutional safeguard is offended only if the classification
rests on grounds wholly irrelevant to the achievement of the
State's objective. State legislatures are presumed to have acted
within their constitutional power despite the fact that, in
practice, their laws Page 366 U. S. 426 result in some inequality. A statutory discrimination will not
be set aside if any state of facts reasonably may be conceived to
justify it. See Koch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 ; Metropolitan Casualty Ins. Co. v. Brownell, 294 U.
S. 580 ; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 ; Atchison, T. & S.F. R. Co. v. Matthews, 174 U. S.
96 . [ Footnote 3 ]

															It would seem that a legislature could reasonably find that the
Sunday sale of the exempted commodities was necessary either for
the health of the populace or for the enhancement of the
recreational atmosphere of the day -- that a family which takes a
Sunday ride into the country will need gasoline for the automobile,
and may find pleasant a soft drink or fresh fruit; that those who
go to the beach may wish ice cream or some other item normally sold
there; that some people will prefer alcoholic beverages or games of
chance to add to their relaxation; that newspapers and drug
products should always be available to the public.

															The record is barren of any indication that this apparently
reasonable basis does not exist, that the statutory distinctions
are invidious, that local tradition and custom might not rationally
call for this legislative treatment. See Salsburg v.
Maryland, 346 U. S. 545 , 346 U. S.
552 -553; Kotch Page 366 U. S. 427 v. Board of River Port Pilot Comm'rs, supra. Likewise,
the fact that these exemptions exist and deny some vendors and
operators the day of rest and recreation contemplated by the
legislature does not render the statutes violative of equal
protection, since there would appear to be many valid reasons for
these exemptions, as stated above, and no evidence to dispel
them.

															Secondly, appellants contend that the statutory arrangement
which permits only certain Anne Arundel County retailers to sell
merchandise essential to, or customarily sold at, or incidental to,
the operation of bathing beaches, amusement parks et cetera is
contrary to the "Equal Protection" Clause because it discriminates
unreasonably against retailers in other Maryland counties. But we
have held that the Equal Protection Clause relates to equality
between persons as such, rather than between areas, and that
territorial uniformity is not a constitutional prerequisite. With
particular reference to the State of Maryland, we have noted that
the prescription of different substantive offenses in different
counties is generally a matter for legislative discretion. We find
no invidious discrimination here. See Salsburg v. Maryland,
supra. Thirdly, appellants contend that this same statutory provision,
Art. 27, § 509, violates the "Equal Protection" Clause because it
permits only certain merchants within Anne Arundel County
(operators of bathing beaches and amusement parks et cetera) to
sell merchandise customarily sold at these places while forbidding
its sale by other vendors of this merchandise, such as appellants'
employer. [ Footnote 4 ] Here
again, it would seem that a legislature Page 366 U. S. 428 could reasonably find that these commodities, necessary for the
health and recreation of its citizens, should only be sold on
Sunday by those vendors at the locations where the commodities are
most likely to be immediately put to use. Such a determination
would seem to serve the consuming public and, at the same time,
secure Sunday rest for those employees, like appellants, of all
other retail establishments. In addition, the enforcement problems
which would accrue if large retail establishments, like appellants'
employer, were permitted to remain open on Sunday but were
restricted to the sale of the merchandise in question would be far
greater than the problems accruing if only beach and amusement park
vendors were exempted. Here again, there has been no indication of
the unreasonableness of this differentiation. On the record before
us, we cannot say that these statutes do not provide equal
protection of the laws. II Another question presented by appellants is whether Art. 27, §
509, which exempts the Sunday retail sale of "merchandise essential
to, or customarily sold at, or incidental to, the operation of"
bathing beaches, amusement parks et cetera in Anne Arundel County,
is unconstitutionally vague. We believe that business people of
ordinary intelligence in the position of appellants' employer would
be able to know what exceptions are encompassed by the statute
either as a matter of ordinary commercial knowledge or by simply
making a reasonable investigation at a nearby bathing beach or
amusement park within the county. See United States v.
Harriss, 347 U. S. 612 , 347 U. S.
617 -618. Under these circumstances, there is no
necessity to guess at the statute's meaning in order to determine
what conduct it makes criminal. Connally v. General
Construction Co., 269 U. S. 385 , 269 U. S. 391 .
Questions concerning proof that the items appellants sold were
customarily Page 366 U. S. 429 sold at, or incidental to the operation of, a bathing beach or
amusement park were not raised in the Maryland Court of Appeals,
nor are they raised here. Thus, we cannot consider the matter. Whitney v. California, 274 U. S. 357 , 274 U. S.
362 -363. III The final questions for decision are whether the Maryland Sunday
Closing Laws conflict with the Federal Constitution's provisions
for religious liberty. First, appellants contend here that the
statutes applicable to Anne Arundel County violate the
constitutional guarantee of freedom of religion in that the
statutes' effect is to prohibit the free exercise of religion in
contravention of the First Amendment, made applicable to the States
by the Fourteenth Amendment. [ Footnote 5 ] But appellants allege only economic injury to
themselves; they do not allege any infringement of their own
religious freedoms due to Sunday closing. In fact, the record is
silent as to what appellants' religious beliefs are. Since the
general rule is that "a litigant may only assert his own
constitutional rights or immunities," United States v.
Raines, 362 U. S. 17 , 362 U. S. 22 , we
hold that appellants have no standing to raise this contention.
[ Footnote 6 ] Tileston v.
Ullman, 318 U. S. 44 , 318 U. S. 46 .
Furthermore, since appellants do not specifically allege that the
statutes infringe upon the religious beliefs of the department
store's present or prospective patrons, we Page 366 U. S. 430 have no occasion here to consider the standing question of Pierce v. Society of Sisters, 268 U.
S. 510 , 268 U. S.
535 -536. Those persons whose religious rights are
allegedly impaired by the statutes are not without effective ways
to assert these rights. Cf. NAACP v. Alabama, 357 U.
S. 449 , 357 U. S.
459 -460; Barrows v. Jackson, 346 U.
S. 249 , 346 U. S. 257 .
Appellants present no weighty countervailing policies here to cause
an exception to our general principles. See United States v.
Raines, supra. Secondly, appellants contend that the statutes violate the
guarantee of separation of church and state in that the statutes
are laws respecting an establishment of religion contrary to the
First Amendment, made applicable to the States by the Fourteenth
Amendment. If the purpose of the "establishment" clause was only to
insure protection for the "free exercise" of religion, then what we
have said above concerning appellants' standing to raise the "free
exercise" contention would appear to be true here. However, the
writings of Madison, who was the First Amendment's architect,
demonstrate that the establishment of a religion was equally feared
because of its tendencies to political tyranny and subversion of
civil authority. [ Footnote 7 ]
Thus, in Everson v. Board of Education, supra, the Court
permitted a district taxpayer to challenge, on "establishment"
grounds, a state statute which authorized district boards of
education to reimburse parents for fares paid for the
transportation of their children to both public and Catholic
schools. Appellants here concededly have suffered direct economic
injury, allegedly due to the imposition on them of the tenets of
the Christian religion. [ Footnote
8 ] We find that, in these circumstances, Page 366 U. S. 431 these appellants have standing to complain that the statutes are
laws respecting an establishment of religion.

															The essence of appellants' "establishment" argument is that
Sunday is the Sabbath day of the predominant Christian sects; that
the purpose of the enforced stoppage of labor on that day is to
facilitate and encourage church attendance; that the purpose of
setting Sunday as a day of universal rest is to induce people with
no religion or people with marginal religious beliefs to join the
predominant Christian sects; that the purpose of the atmosphere of
tranquility created by Sunday closing is to aid the conduct of
church services and religious observance of the sacred day. In
substantiating their "establishment" argument, appellants rely on
the wording of the present Maryland statutes, on earlier versions
of the current Sunday laws, and on prior judicial characterizations
of these laws by the Maryland Court of Appeals. Although only the
constitutionality of § 521, the section under which appellants have
been convicted, is immediately before us in this litigation,
inquiry into the history of Sunday Closing Laws in our country, in
addition to an examination of the Maryland Sunday closing statutes
in their entirety and of their history, is relevant to the decision
of whether the Maryland Sunday law in question is one respecting an
establishment of religion. There is no dispute that the original
laws which dealt with Sunday labor were motivated by religious
forces. But what we must decide is whether present Sunday
legislation, having undergone extensive changes from the earliest
forms, still retains its religious character.

															Sunday Closing Laws go far back into American history, having
been brought to the colonies with a background of English
legislation dating to the thirteenth century. In 1237, Henry III
forbade the frequenting of markets on Page 366 U. S. 432 Sunday; the Sunday showing of wools at the staple was banned by
Edward III in 1354; in 1409, Henry IV prohibited the playing of
unlawful games on Sunday; Henry VI proscribed Sunday fairs in
churchyards in 1444 and, four years later, made unlawful all fairs
and markets and all showings of any goods or merchandise; Edward VI
disallowed Sunday bodily labor by several injunctions in the
mid-sixteenth century; various Sunday sports and amusements were
restricted in 1625 by Charles I. Lewis, A Critical History of
Sunday Legislation, 82-108; Johnson and Yost, Separation of Church
and State, 221. The law of the colonies to the time of the
Revolution and the basis of the Sunday laws in the States was 29
Charles II, c. 7 (1677). It provided, in part:

															"For the better observation and keeping holy the Lord's day,
commonly called Sunday: be it enacted . . . that all the laws
enacted and in force concerning the observation of the day, and
repairing to the church thereon, be carefully put in
execution, and that all and every person and persons whatsoever
shall upon every Lord's day apply themselves to the observation of
the same, by exercising themselves thereon in the duties of piety
and true religion, publicly and privately, and that no tradesman,
artificer, workman, laborer, or other person whatsoever, shall
do or exercise any worldly labor or business or work of their
ordinary callings upon the Lord's day, or any part thereof (works
of necessity and charity only excepted); . . . and that no person
or persons whatsoever shall publicly cry, show forth, or expose for
sale any wares, merchandise, fruit, herbs, goods, or chattels,
whatsoever, upon the Lord's day, or any part thereof. . . ."

															(Emphasis added.) [ Footnote
9 ] Page 366 U. S. 433 Observation of the above language, and of that of the prior
mandates, reveals clearly that the English Sunday legislation was
in aid of the established church.

															The American colonial Sunday restrictions arose soon after
settlement. Starting in 1650, the Plymouth Colony proscribed
servile work, unnecessary traveling, sports, and the sale of
alcoholic beverages on the Lord's day, and enacted laws concerning
church attendance. The Massachusetts Bay Colony and the Connecticut
and New Haven Colonies enacted similar prohibitions, some even
earlier in the seventeenth century. The religious orientation of
the colonial statutes was equally apparent. For example, a 1629
Massachusetts Bay instruction began, "And to the end the Sabbath
may be celebrated in a religious manner. . . ." A 1653 enactment
spoke of Sunday activities

															"which things tend much to the dishonor of God, the reproach of
religion, and the profanation of his holy Sabbath, the
sanctification whereof is sometimes put for all duties immediately
respecting the service of God. . . ."

															Lewis, op. cit. supra, at pp. 160-195, particularly at
167, 169. [ Footnote 10 ]
These laws persevered after the Revolution and, at about the time
of the First Amendment's adoption, each of the colonies had laws of
some sort restricting Sunday labor. See note, 73
Harv.L.Rev. 729-730, 739-740; Johnson and Yost, op. cit.
supra, at pp. 222-223.

															But, despite the strongly religious origin of these laws,
beginning before the eighteenth century, nonreligious Page 366 U. S. 434 arguments for Sunday closing began to be heard more distinctly,
and the statutes began to lose some of their totally religious
flavor. In the middle 1700's, Blackstone wrote,

															"[T]he 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."

															4 Bl.Comm. 63. A 1788 English statute dealing with chimney
sweeps, 28 Geo. III, c. 48, in addition to providing for their
Sunday religious affairs, also regulated their hours of work. The
preamble to a 1679 Rhode Island enactment stated that the reason
for the ban on Sunday employment was that "persons being eville
minded, have presumed to employ in servile labor, more than
necessity requireth, their servants. . . ." 3 Records of the Colony
of Rhode Island and Providence Plantations 31. The New York law of
1788 omitted the term "Lord's day" and substituted "the first day
of the week commonly called Sunday." 2 Laws of N.Y. 1785-1788, 680.
Similar changes marked the Maryland statutes, discussed below. With
the advent of the First Amendment, the colonial provisions
requiring church attendance were soon repealed. Note, 73
Harv.L.Rev. supra at pp. 729-730.

															More recently, further secular justifications have been advanced
for making Sunday a day of rest, a day when people may recover from
the labors of the week just passed and may physically and mentally
prepare for the week's work to come. In England, during the First
World War, a committee investigating the health conditions of
munitions workers reported that

															"if the maximum output is to be secured and maintained for any
length of Page 366 U. S. 435 time, a weekly period of rest must be allowed. . . . On economic
and social grounds alike, this weekly period of rest is best
provided on Sunday. [ Footnote
11 ]"

															The proponents of Sunday closing legislation are no longer
exclusively representatives of religious interests. Recent New
Jersey Sunday legislation was supported by labor groups and trade
associations, Note, 73 Harv.L.Rev. 730-731; modern English Sunday
legislation was promoted by the National Federation of Grocers and
supported by the National Chamber of Trade, the Drapers' Chamber of
Trade, and the National Union of Shop Assistants. 308 Parliamentary
Debates, Commons 2158-2159.

															Throughout the years, state legislatures have modified, deleted
from and added to their Sunday statutes. As evidenced by the New
Jersey laws mentioned above, current changes are commonplace.
Almost every State in our country presently has some type of Sunday
regulation, and over forty possess a relatively comprehensive
system. Note, 73 Harv.L.Rev. 732-733; Note, 12 Rutgers L.Rev. 506.
Some of our States now enforce their Sunday legislation through
Departments of Labor, e.g., 6 S.C.Code Ann. (1952), § 64
5. Thus have Sunday laws evolved from the wholly religious
sanctions that originally were enacted.

															Moreover, litigation over Sunday closing laws is not novel.
Scores of cases may be found in the state appellate courts relating
to sundry phases of Sunday enactments. [ Footnote 12 ] Religious objections have been raised
there on numerous occasions, but sustained only once, in Ex
parte Newman, 9 Cal. 502 (1858), and that decision was
overruled three years later, in Ex parte Andrews, 18 Cal.
678. A substantial number of cases in varying postures bearing Page 366 U. S. 436 on state Sunday legislation have reached this Court. [ Footnote 13 ] Although none raising
the issues now presented has gained plenary hearing, language used
in some of these cases further evidences the evolution of Sunday
laws as temporal statutes. Mr. Justice Field wrote in Soon Hing
v. Crowley, 113 U. S. 703 , at
p. 113 U. S.
710 :

															"Laws setting aside Sunday as a day of rest are upheld not from
any right of the government to legislate for the promotion of
religious observances, but from its right to protect all persons
from the physical and moral debasement which comes from
uninterrupted labor. 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."

															While a member of the California Supreme Court, Mr. Justice
Field dissented in Ex parte Newman, supra, at pp. 519-520,
528, saying:

															"Its requirement is a cessation from labor. In its enactment,
the Legislature has given the sanction of law to a rule of conduct
which the entire civilized world recognizes as essential to the
physical and moral wellbeing of society. Upon no subject is there
such a concurrence of opinion among philosophers, moralists and
statesmen of all nations as on the necessity of periodical
cessations from labor. One Page 366 U. S. 437 day in seven is the rule, founded in experience, and sustained
by science. . . . The prohibition of secular business on Sunday is
advocated on the ground that, by it, the general welfare is
advanced, labor protected, and the moral and physical wellbeing of
society promoted."

															This was quoted with approval by Mr. Justice Harlan in Hennington v. Georgia, supra, who also stated:

															"It is none the less a civil regulation because the day on which
the running of freight trains is prohibited is kept by many under a
sense of religious duty. The legislature having, as will not be
disputed, power to enact laws to promote the order and to secure
the comfort, happiness and health of the people, it was within its
discretion to fix the day when all labor, within the limits of the
State, works of necessity and charity excepted, should cease." Id. at 163 U. S. 304 .
And Mr. Chief Justice Fuller cited both of these passages in Petit v. Minnesota, supra. Before turning to the Maryland legislation now here under
attack, an investigation of what historical position Sunday Closing
Laws have occupied with reference to the First Amendment should be
undertaken, Everson v. Board of Education, supra, at p. 330 U. S. 14 .

															This Court has considered the happenings surrounding the
Virginia General Assembly's enactment of "An act for establishing
religious freedom," 12 Hening's Statutes of Virginia 84, written by
Thomas Jefferson and sponsored by James Madison, as best reflecting
the long and intensive struggle for religious freedom in America,
as particularly relevant in the search for the First Amendment's
meaning. See the opinions in Everson v. Board of
Education, supra. I n 1776, nine years before the bill's Page 366 U. S. 438 passage, Madison co-authored Virginia's Declaration of Rights,
which provided, inter alia, that "all men are equally
entitled to the free exercise of religion, according to the
dictates of conscience. . . ." 9 Hening's Statutes of Virginia 109,
111-112. Virginia had had Sunday legislation since early in the
seventeenth century; in 1776, the laws penalizing "maintaining any
opinions in matters of religion, forbearing to repair to
church, or the exercising any mode of worship whatsoever"
(emphasis added), were repealed, and all dissenters were freed from
the taxes levied for the support of the established church. Id. at 164. The Sunday labor prohibitions remained;
apparently, they were not believed to be inconsistent with the
newly enacted Declaration of Rights. Madison had sought also to
have the Declaration expressly condemn the existing Virginia
establishment. [ Footnote 14 ]
This hope was finally realized when "A Bill for Establishing
Religious Freedom" was passed in 1785. In this same year, Madison
presented to Virginia legislators "A Bill for Punishing . . .
Sabbath Breakers," which provided in part:

															"If any person on Sunday shall himself be found labouring at his
own or any other trade or calling, or shall employ his apprentices,
servants or slaves in labour, or other business, except it be in
the ordinary household offices of daily necessity, or other work of
necessity or charity, he shall forfeit the sum of ten shillings for
every such offence, deeming every apprentice, servant, or slave so
employed, and every day he shall be so employed as constituting a
distinct offence. [ Footnote
15 ]"

															This became law the following year, and remained during the time
that Madison fought for the First Amendment in the Congress. It was
the law of Virginia, and similar Page 366 U. S. 439 laws were in force in other States, when Madison stated at the
Virginia ratification convention:

															"Happily for the states, they enjoy the utmost freedom of
religion. . . . Fortunately for this commonwealth, a majority of
the people are decidedly against any exclusive establishment. I
believe it to be so in the other states. . . . I can appeal to my
uniform conduct on this subject, that I have warmly supported
religious freedom. [ Footnote
16 ]"

															In 1799, Virginia pronounced "An act for establishing religious
freedom" as "a true exposition of the principles of the bill of
rights and constitution," and repealed all subsequently enacted
legislation deemed inconsistent with it. 2 Shepherd, Statutes at
Large of Virginia, 149. Virginia's statute banning Sunday labor
stood. [ Footnote 17 ]

															In Reynolds v. United States, 98 U. S.
145 , the Court relied heavily on the history of the
Virginia bill. That case concerned a Mormon's attack on a statute
making bigamy a crime. The Court said:

															"In connection with the case we are now considering, it is a
significant fact that, on the 8th of December, 1788, after the
passage of the act establishing religious freedom, and after the
convention of Virginia had recommended as an amendment to the
Constitution of the United States the declaration in a bill of
rights that 'all men have an equal, natural, and unalienable right
to the free exercise of religion, according to the dictates of
conscience,' the legislature Page 366 U. S. 440 of that State substantially enacted the statute of James I.,
death penalty included, because, as recited in the preamble, 'it
hath been doubted whether bigamy or poligamy be punishable by the
laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to
this, we think it may safely be said there never has been a time in
any State of the Union when polygamy has not been an offence
against society, cognizable by the civil courts and punishable with
more or less severity. In the face of all of this evidence, it is
impossible to believe that the constitutional guaranty of religious
freedom was intended to prohibit legislation in respect to this
most important feature of social life." Id. at 98 U. S. 165 .
In the case at bar, we find the place of Sunday Closing Laws in the
First Amendment's history both enlightening and persuasive.

															But in order to dispose of the case before us, we must consider
the standards by which the Maryland statutes are to be measured.
Here, a brief review of the First Amendment's background proves
helpful. The First Amendment states that "Congress shall make no
law respecting an establishment of religion. . . ." U.S.Const.,
Amend. I. The Amendment was proposed by James Madison on June 8,
1789, in the House of Representatives. It then read, in part:

															"The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience
be in any manner, or on any pretext, infringed."

															(Emphasis added.) Annals of Congress 434. We are told that
Madison added the word "national" to meet the scruples of States
which then had an established church. 1 Stokes, Church and State in
the United Page 366 U. S. 441 States, 541. After being referred to committee, it was
considered by the House, on August 15, 1789, acting as a Committee
of the Whole. Some assistance in determining the scope of the
Amendment's proscription of establishment may be found in that
debate.

															In its report to the House, the committee, to which the subject
of amendments to the Constitution had been submitted, recommended
the insertion of the language, "no religion shall be established by
law." I Annals of Congress 729. Mr. Gerry "said it would read
better if it was that no religious doctrine shall be established by
law." Id. at 730. Mr. Madison

															"said, he apprehended the meaning of the words to be that
Congress should not establish a religion and enforce the legal
observation of it by law, nor compel men to worship God in any
manner contrary to their conscience. . . . He believed that the
people feared one sect might obtain a preeminence, or two combine
together, and establish a religion to which they would compel
others to conform." Id. at 730-731.

															The Amendment, as it passed the House of Representatives nine
days later, read, in part:

															"Congress shall make no law establishing religion. . . ."

															Records of the United States Senate, 1A-C2 (U.S.Nat.Archives).
It passed the Senate on September 9, 1789, reading, in part:

															"Congress shall make no law establishing articles of faith or a
mode of worship. . . ." Ibid. An early commentator opined that the

															"real object of the amendment was . . . to prevent any national
ecclesiastical establishment, which should give to an hierarchy the
exclusive patronage of the national government."

															3 Story, Commentaries on the Constitution of the United States,
728. But the First Amendment, in its final form, Page 366 U. S. 442 did not simply bar a congressional enactment establishing a
church; it forbade all laws respecting an establishment of
religion. Thus, this Court has given the Amendment a "broad
interpretation . . . in the light of its history and the evils it
was designed forever to suppress. . . ." Everson v. Board of
Education, supra, at pp. 330 U. S. 14 -15.
It has found that the First and Fourteenth Amendments afford
protection against religious establishment far more extensive than
merely to forbid a national or state church. Thus, in McCollum
v. Board of Education, 333 U. S. 203 , the
Court held that the action of a board of education permitting
religious instruction during school hours in public school
buildings and requiring those children who chose not to attend to
remain in their classrooms to be contrary to the "Establishment"
Clause.

															However, it is equally true that the "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. In many instances, the Congress or state
legislatures conclude that the general welfare of society, wholly
apart from any religious considerations, demands such regulation.
Thus, for temporal purposes, murder is illegal. And the fact that
this agrees with the dictates of the Judaeo-Christian religions
while it may disagree with others does not invalidate the
regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U. S. 333 ; Reynolds v. United States, supra. The same could be said
of theft, fraud, etc., because those offenses were also proscribed
in the Decalogue.

															Thus, these broad principles have been set forth by this Court.
Those cases dealing with the specific problems arising under the
"Establishment" Clause which have reached this Court are few in
number. The most extensive discussion of the "Establishment"
Clause's latitude Page 366 U. S. 443 is to be found in Everson v. Board of Education, supra, at pp. 330 U. S.
15 -16:

															"The 'establishment of religion' clause of the First Amendment
means at least this: neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance
or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly, participate in the affairs of
any religious organizations or groups, and vice versa. In the words
of Jefferson, the clause against establishment of religion by law
was intended to erect 'a wall of separation between church and
State.'"

															Under challenge was a statute authorizing repayment to parents
of their children's transportation expenses to public and Catholic
schools. The Court, speaking through MR. JUSTICE BLACK, recognized
that "it is undoubtedly true that children are helped to get to
church schools," and

															"[t]here is even a possibility that some of the children might
not be sent to the church schools if the parents were compelled to
pay their children's bus fares out of their own pockets when
transportation to a public school would have been paid for by the
State." Id. at 330 U. S. 17 . But
the Court found that the purpose and effect of the statute in
question was general "public welfare legislation," Page 366 U. S. 444 id. at 330 U. S. 16 ;
that it was to protect all school children from the "very real
hazards of traffic," id. at 330 U. S. 17 ;
that the expenditure of public funds for school transportation, to
religious schools or to any others, was like the expenditure of
public funds to provide policemen to safeguard these same children
or to provide "such general government services as ordinary police
and fire protection, connections for sewage disposal, public
highways and sidewalks," id. at 330 U. S. 17 -18.
[ Footnote 18 ]

															In light of the evolution of our Sunday Closing Laws through the
centuries, and of their more or less recent emphasis upon secular
considerations, it is not difficult to discern that, as presently
written and administered, most of them, at least, are of a secular,
rather than of a religious, character, and that presently they bear
no relationship to establishment of religion as those words are
used in the Constitution of the United States.

															Throughout this century and longer, both the federal and state
governments have oriented their activities very largely toward
improvement of the health, safety, recreation and general wellbeing
of our citizens. Numerous Page 366 U. S. 445 laws affecting public health, safety factors in industry, laws
affecting hours and conditions of labor of women and children,
weekend diversion at parks and beaches, and cultural activities of
various kinds, now point the way toward the good life for all.
Sunday Closing Laws, like those before us, have become part and
parcel of this great governmental concern wholly apart from their
original purposes or connotations. The present purpose and effect
of most of them is to provide a uniform day of rest for all
citizens; the fact that this day is Sunday, a day of particular
significance for the dominant Christian sects, does not bar the
State from achieving its secular goals. To say that the States
cannot prescribe Sunday as a day of rest for these purposes solely
because centuries ago such laws had their genesis in religion would
give a constitutional interpretation of hostility to the public
welfare, rather than one of mere separation of church and
State.

															We now reach the Maryland statutes under review. The title of
the major series of sections of the Maryland Code dealing with
Sunday closing -- Art. 27, §§ 492-534C -- is "Sabbath Breaking"; §
492 proscribes work or bodily labor on the "Lord's day," and
forbids persons to "profane the Lord's day" by gaming, fishing et
cetera; § 522 refers to Sunday as the "Sabbath day." As has been
mentioned above, many of the exempted Sunday activities in the
various localities of the State may only be conducted during the
afternoon and late evening; most Christian church services, of
course, are held on Sunday morning and early Sunday evening.
Finally, as previously noted, certain localities do not permit the
allowed Sunday activities to be carried on within one hundred yards
of any church where religious services are being held. This is the
totality of the evidence of religious purpose which may be gleaned
from the face of the present statute and from its operative
effect. Page 366 U. S. 446 The predecessors of the existing Maryland Sunday laws are
undeniably religious in origin. The first Maryland statute dealing
with Sunday activities, enacted in 1649, was entitled "An Act
concerning Religion." 1 Archives of Maryland 244-247. It made it
criminal to

															"profane the Sabbath or Lords day called Sunday by frequent
swearing, drunkennes or by any unciville or disorderly recreation,
or by working on that day when absolute necessity doth not require
it." Id. at 245. A 1692 statute entitled "An Act for the
Service of Almighty God and the Establishment of the Protestant
Religion within this Province," 13 Archives of Maryland 425-430,
after first stating the importance of keeping the Lord's Day holy
and sanctified and expressing concern with the breach of its
observance throughout the State, then enacted a Sunday labor
prohibition which was the obvious precursor of the present § 492.
[ Footnote 19 ] There was a
reenactment in 1696 entitled "An Act for Sanctifying & keeping
holy the Lord's Day Commonly called Sunday." 19 Archives of
Maryland 418-420. By 1723, the Sabbath-breaking section of the
statute assumed the present form of § 492, omitting the specific
prohibition against Sunday swearing and the patently religiously
motivated title. Bacon, Laws of Maryland (1723), c. XVI.

															There are judicial statements in early Maryland decisions which
tend to support appellants' position. In an 1834 case involving a
contract calling for delivery on Sunday, Page 366 U. S. 447 the Maryland Court of Appeals remarked that

															"Ours is a christian community, and a day set apart as the day
of rest, is the day consecrated by the resurrection of our Saviour,
and embraces the twenty-four hours next ensuing the midnight of
Saturday." Kilgour v. Miles, 6 Gill and Johnson 268, 274. This
language was cited with approval in Judefind v. State, 78
Md. 510, 514, 28 A. 405, 406 (1894). It was also stated there:

															"It is undoubtedly true that rest from secular employment on
Sunday does have a tendency to foster and encourage the Christian
religion -- of all sects and denominations that observe that day --
as rest from work and ordinary occupation enables many to engage in
public worship who probably would not otherwise do so. But it would
scarcely be asked of a Court in what professes to be a Christian
land to declare a law unconstitutional because it requires rest
from bodily labor on Sunday (except works of necessity and
charity), and thereby promotes the cause of Christianity. If the
Christian religion is, incidentally or otherwise, benefited or
fostered by having this day of rest, as it undoubtedly is, there is
all the more reason for the enforcement of laws that help to
preserve it. Whilst Courts have generally sustained Sunday laws as
'civil regulations,' their decisions will have no less weight if
they are shown to be in accordance with divine law, as well as
human." Id. at 515-516, 28 A. at 407. But it should be noted
that, throughout the Judefind decision, the Maryland court
specifically rejected the contention that the laws interfered with
religious liberty and stated that the laws' purpose was to provide
the "advantages of having a weekly day of rest, from a mere
physical and political standpoint.'" Id. at 513, 28 A. at
406. Considering the language and operative effect of the current
statutes, we no longer find the blanket prohibition Page 366 U. S. 448 against Sunday work or bodily labor. To the contrary, we find
that § 521 of Art. 27, the section which appellants violated,
permits the Sunday sale of tobaccos and sweets and a long list of
sundry articles which we have enumerated above; we find that § 509
of Art. 27 permits the Sunday operation of bathing beaches,
amusement parks and similar facilities; we find that Art. 2B, § 28,
permits the Sunday sale of alcoholic beverages, products strictly
forbidden by predecessor statutes; we are told that Anne Arundel
County allows Sunday bingo and the Sunday playing of pinball
machines and slot machines, activities generally condemned by prior
Maryland Sunday legislation. [ Footnote 20 ] Certainly, these are not works of charity or
necessity. Section 521's current stipulation that shops with only
one employee may remain open on Sunday does not coincide with a
religious purpose. These provisions, along with those which permit
various sports and entertainments on Sunday, seem clearly to be
fashioned for the purpose of providing a Sunday atmosphere of
recreation, cheerfulness, repose and enjoyment. Coupled with the
general proscription against other types of work, we believe that
the air of the day is one of relaxation, rather than one of
religion.

															The existing Maryland Sunday laws are not simply verbatim
reenactments of their religiously oriented antecedents. Only § 492
retains the appellation of "Lord's day," and even that section no
longer makes recitation of religious purpose. It does talk in terms
of "profan[ing] the Lord's day," but other sections permit the
activities Page 366 U. S. 449 previously thought to be profane. Prior denunciation of Sunday
drunkenness is now gone. Contemporary concern with these statutes
is evidenced by the dozen changes made in 1959, and by the recent
enactment of a majority of the exceptions.

															Finally, the relevant pronouncements of the Maryland Court of
Appeals dispel any argument that the statutes' announced purpose is
religious. In Hiller v. Maryland, 124 Md. 385, 92 A. 842
(1914), the court had before it a Baltimore ordinance prohibiting
Sunday baseball. The court said:

															"What the eminent chief judge said with respect to police
enactments which deal with the protection of the public health,
morals and safety apply with equal force to those which are
concerned with the peace, order and quiet of the community on
Sunday, for these social conditions are well recognized heads of
the police power. Can the Court say that this ordinance has no real
and substantial relation to the peace and order and quiet of
Sunday, as a day of rest, in the City of Baltimore?" Id. at 393, 92 A. at 844. See also Levering v.
Williams, 134 Md. 48, 5459, 106 A. 176, 178-179 (1919). And
the Maryland court declared in its decision in the instant case:
"The legislative plan is plain. It is to compel a day of rest from
work, permitting only activities which are necessary or
recreational." McGowan v. State, supra, at p. 123, 151
A.2d at 159. After engaging in the close scrutiny demanded of us
when First Amendment liberties are at issue, we accept the State
Supreme Court's determination that the statutes' present purpose
and effect is not to aid religion, but to set aside a day of rest
and recreation.

															But this does not answer all of appellants' contentions. We are
told that the State has other means at its disposal Page 366 U. S. 450 to accomplish its secular purpose, other courses that would not
even remotely or incidentally give state aid to religion. On this
basis, we are asked to hold these statutes invalid on the ground
that the State's power to regulate conduct in the public interest
may only be executed in a way that does not unduly or unnecessarily
infringe upon the religious provisions of the First Amendment. See Cantwell v. Connecticut, supra, at pp. 310 U. S.
304 -305. However relevant this argument may be, we
believe that the factual basis on which it rests is not
supportable. It is true that, if the State's interest were simply
to provide for its citizens a periodic respite from work, a
regulation demanding that everyone rest one day in seven, leaving
the choice of the day to the individual, would suffice.

															However, the State's purpose is not merely to provide a
one-day-in-seven work stoppage. In addition to this, 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. [ Footnote 21 ] Page 366 U. S. 451 Obviously, a State is empowered to determine that a "rest one
day in seven" statute would not accomplish this purpose; that it
would not provide for a general cessation of activity, a special
atmosphere of tranquility, a day which all members of the family or
friends and relatives might spend together. Furthermore, it seems
plain that the problems involved in enforcing such a provision
would be exceedingly more difficult than those in enforcing a
"common day of rest" provision.

															Moreover, it is common knowledge that the first day of the week
has come to have special significance as a rest day in this
country. People of all religions and Page 366 U. S. 452 people with no religion regard Sunday as a time for family
activity, for visiting friends and relatives, for late sleeping,
for passive and active entertainments, for dining out, and the
like. "Vast masses of our people, in fact, literally millions, go
out into the countryside on fine Sunday afternoons in the Summer. .
. ." 308 Parliamentary Debates, Commons 2159. Sunday is a day apart
from all others. [ Footnote
22 ] 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. For these reasons, we hold that the Maryland statutes are
not laws respecting an establishment of religion.

															The distinctions between the statutes in the case before us and
the state action in McCollum v. Board of Education, supra, the only case in this Court finding a violation of the
"Establishment" Clause, lend further substantiation to our
conclusion. In McCollum, state action permitted religious
instruction in public school buildings during school hours and
required students not attending the religious instruction to remain
in their classrooms during that time. The Court found that this
system had the effect of coercing the children to attend religious
classes; no such coercion to attend church services is present in
the situation at bar. In McCollum, the only alternative
available to the nonattending students was to remain in their
classrooms; the alternatives open to nonlaboring persons in the
instant case are far more diverse. In McCollum, there was
direct cooperation between state officials and religious ministers;
no such direct participation exists under the Maryland laws. In McCollum, tax-supported buildings were used to aid
religion; in the Page 366 U. S. 453 instant case, no tax monies are being used in aid of
religion.

															Finally, we should make clear that this case deals only with the
constitutionality of § 521 of the Maryland statute before us. We do
not hold that Sunday legislation may not be a violation of the
"Establishment" Clause if it can be demonstrated that its purpose
-- evidenced either on the face of the legislation, in conjunction
with its legislative history, or in its operative effect -- is to
use the State's coercive power to aid religion.

															Accordingly, the decision is Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE
HARLAN, see post, p. 366 U. S.
459 .]

															[For dissenting opinion of MR. JUSTICE DOUGLAS, see
post, p. 366 U. S.
561 .]

															| 366
U.S. 420 app| APPENDIX TO OPINION OF THE COURT " Md.Ann.Code, Art. 27" " Sabbath Breaking." " § 492. -- Working on Sunday; Permitting children or
servants to game, fish, hunt, etc. -- No person whatsoever
shall work or do any bodily labor on the Lord's day, commonly
called Sunday, and no person having children or servants shall
command, or wittingly or willingly suffer any of them to do any
manner of work or labor on the Lord's day (works of necessity and
charity always excepted), nor shall suffer or permit any children
or servants to profane the Lord's day by gaming, fishing, fowling,
hunting or unlawful pastime or recreation, and every person
transgressing this section and being hereof convicted before a
justice of the peace shall forfeit five dollars, to be applied to
the use of the county. " Page 366 U. S. 454 " § 509. -- Beaches, amusement parks, picnic groves, etc., in
Anne Arundel County. -- It shall be lawful to operate, work
at, or be employed in the occupations of operating any bathing
beach, bathhouse, amusement park, dancing saloon, the sale or
selling of any novelties, souvenirs, accessories, or other
merchandise essential to, or customarily sold at, or incidental to,
the operation of the aforesaid occupations and businesses, at
retail, picnic groves, amusements, games, amusement rides,
amusement devices, entertainments, shows and the hiring or renting
of boats, tables, chairs, beach umbrellas, on the first day of the
week, commonly called Sunday, within Anne Arundel County, and §§
492, 521 and 522 of this article are repealed, insofar and to the
extent that they prohibit the operating of and/or the working of or
employment of persons in the operation of any bathing beach,
bathhouse, amusement park, dancing saloon, the sale or selling at
retail of any merchandise, essential to or customarily sold or
incidental to the operation of the aforesaid occupations or
businesses, picnic groves, amusements, games, amusement rides,
amusement devices, entertainments, shows, and the hiring and
renting of boats, tables, chairs, beach umbrellas, on the first day
of the week, commonly called Sunday, in Anne Arundel County."

															" § 521. -- Sale, etc., of merchandise on Sunday;
exceptions. "

															"(a) Sunday sales of merchandise prohibited; excepted
articles. -- No person in this State shall sell, dispose of,
barter, or deal in, or give away any articles of merchandise on
Sunday, except retailers, who may sell and deliver on said day
tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice, ice
cream, ices and other confectionery, milk, bread, fruits, gasoline,
oils and greases."

															"(b) Additional excepted articles in Anne Arundel County;
certain establishments excepted. -- In Anne Arundel County, in
addition to the articles of merchandise Page 366 U. S. 455 hereinbefore mentioned, retailers may sell, barter, deal in, and
deliver on Sunday the following articles of merchandise: butter,
eggs, cream, soap and other detergents, disinfectants, vegetables,
meats, and all other food or food stuffs prepared or intended for
human consumption, automobile accessories and parts, boating and
fishing accessories, artificial and natural flowers and shrubs,
toilet goods, hospital supplies, thermometers, camera films,
souvenirs, surgical instruments, rubber goods, paper goods, drugs,
medicines, patent medicines, and all other articles used for the
relief of pain or prescribed by a physician; provided, however,
that nothing in this subtitle shall be construed to prevent the
operation of any retail establishment on Sunday, the operation of
which does not entail the employment of more than one person, not
including the owner or proprietor."

															"(c) Penalty for violation; second and subsequent offenses;
revocation of license. -- Any person violating any one of the
provisions of this section shall be liable to indictment in any
court in this State having criminal jurisdiction, and upon
conviction thereof shall be fined a sum of not less than twenty nor
more than fifty dollars, in the discretion of the court, for the
first offense, and if convicted a second time for a violation of
this section, the person or persons so offending shall be fined a
sum not less than $50 nor more than $500, and be imprisoned for not
less than 10 nor more than 30 days, in the discretion of the court,
and his, her or their license, if any was issued, shall be declared
null and void by the judge of said court, and it shall not be
lawful for such person or persons to obtain another license for the
period of twelve months from the time of such conviction, nor shall
a license be obtained by any other person or persons to carry on
said business on the premises or elsewhere, if the person, so as
aforesaid convicted, has any interest whatever therein, or shall
derive any profit whatever therefrom, and in case Page 366 U. S. 456 of being convicted more than twice for a violation of this
section, such person or persons on each occasion shall be
imprisoned for not less than thirty nor more than sixty days, and
fined a sum not less than double that imposed on such person or
persons on the last preceding conviction, and his, her or their
license, if any was issued, shall be declared null and void by the
court, and no new license shall be issued to such person or persons
for a period of two years from the time of such conviction, nor to
anyone else to carry on said business wherein he or she is in
anywise interested, as before provided for the second violation of
the provisions of this section; all the fines to be imposed under
this section shall be paid to the State."

															"(d) Apothecaries: sale of newspapers and periodicals.
-- This section is not to apply to apothecaries and such
apothecaries may sell on Sunday drugs, medicines, and patent
medicines as on week days, and this section shall not apply to the
sale of newspapers and periodicals."

															" § 622. -- Keeping open or using dancing saloon, opera
house, tenpin alley, barber saloon or ball alley on Sunday. -- It shall not be lawful to keep open or use any dancing saloon,
opera house, tenpin alley, barber saloon or ball alley within this
State on the Sabbath day, commonly called Sunday, and any person or
persons, or body politic or corporate, who shall violate any
provision of this section, or cause or knowingly permit the same to
be violated by a person or persons in his, her or its employ shall
be liable to indictment in any court of this State having criminal
jurisdiction, and upon conviction thereof shall be fined a sum not
less than fifty dollars nor more than one hundred dollars, in the
discretion of the court, for the first offense, and if convicted a
second time for a violation of this section, the person or persons,
or body politic or corporate shall be fined a sum not less than one
hundred nor more than five hundred dollars, and if a natural person
shall be imprisoned, not less than ten nor Page 366 U. S. 457 more than thirty days in the discretion of the court, and in the
case of any conviction or convictions under this section subsequent
to the second, such person or persons, body politic or corporate
shall be fined on each occasion a sum at least double that imposed
upon him, her, them or it on the last preceding conviction, and if
a natural person, shall be imprisoned not less than thirty nor more
than sixty days in the discretion of the court; all fines to be
imposed under this section shall be paid to the State."

															" Md.Ann.Code, Art. 2B" " § 28. -- Anne Arundel County. "

															"(a) Special Sunday licenses. -- "

															"(1) Notwithstanding any other provision of this article, no
license for sale of alcoholic beverages issued by the board of
license commissioners for Anne Arundel County (except 'special
licenses' provided for in § 22 of this article) shall be deemed to
nor shall it permit or authorize the holder thereof to sell any
alcoholic beverages in Anne Arundel County after 2 A.M. on Sundays,
except as hereinafter provided."

															"(2) Any person holding a license for the sale of alcoholic
beverages in Anne Arundel County (except persons holding any Class
BP, WP, LP, or LT license, 'Package Goods -- off sale license,'
'six day tavern license,' or 'special licenses') issued by the
board of license commissioners for Anne Arundel County, shall, upon
application made as for new licenses and approval thereof by the
board of license commissioners for Anne Arundel County, as provided
for by §§ 60 and 67(c) of this article, be issued a license to be
known as a 'special Sunday license,' upon payment of the fee
therefor as provided herein."

															"(3) Such 'special Sunday license' shall authorize the holder
thereof to sell alcoholic beverages of the same kind, and subject
to the same limitations as to hours, alcoholic content of the
beverages to be sold thereunder, restrictions Page 366 U. S. 458 and provisions, as govern such other license for the sale of
alcoholic beverages, issued to and held by the holder of such
'special Sunday license,' on each Sunday. No 'special Sunday
license' shall be issued to any person who does not hold an
alcoholic beverage license of some other class issued by the board
of license commissioners for Anne Arundel County."

															" § 90 -- Sundays. -- "

															"(a) Bar and counter sales. -- "

															"(1) No retail dealer holding a Class B or C license shall be
permitted to sell any alcoholic beverage at a bar or counter on
Sunday."

															"(2) Provided, that, in Anne Arundel County it shall be lawful
to sell, vend, serve, deliver and/or consume any alcoholic
beverages permitted by law to be sold in the first, second, third,
fourth, fifth, seventh and eighth districts of Anne Arundel County
at any bar or counter on any day on which the sale of alcoholic
beverages is permitted by law."

															"(b) General restrictions. -- "

															"(1) In the jurisdictions in which this subsection is
applicable, it shall be unlawful for anyone to sell or for any
licensed dealer to deliver, give away or otherwise dispose of any
alcoholic beverages on Sunday. Any person selling or any licensed
dealer delivering, giving away or otherwise disposing of such
beverages in such jurisdictions on Sunday shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not
exceeding fifty dollars ($50.00) for the first offense and for each
succeeding offense shall be fined not exceeding one hundred dollars
($100.00), or imprisoned in the county jail for not more than
thirty (30) days, or be both fined and imprisoned, in the
discretion of the court."

															"(2) This subsection shall be applicable and have effect in
Caroline, Carroll, Cecil, Dorchester, Garrett, Harford, Kent, Queen
Anne's, Somerset, Talbot, Washington, Wicomico and Worcester
counties, provided that it shall not apply to or affect special
Class C licenses Page 366 U. S. 459 issued under the provisions of this article, nor shall it apply
to special Class C licenses issued in Washington County for
temporary use."

															[ Footnote 1 ]

															These statutes, in their entirety, are found in Md.Ann.Code,
1957, Art. 27, §§ 492-534C; Art. 2B, §§ 28(a), 90-106; Art. 66C, §§
132(d), 698(d). Those sections specifically referred to hereafter
may be found in an Appendix to this opinion, post, p. 366 U. S.
453 .

															[ Footnote 2 ]

															Companion arguments made by appellants are that the exceptions
to the Sunday sale's prohibition so undermine the alleged purpose
of Sunday as a day of rest as to bear no rational relationship to
it, and thereby render the statutes violative of due process; that
the distinctions drawn by the statutes are so unreasonable as to
violate due process.

															[ Footnote 3 ]

															More recently we declared:

															"The problem of legislative classification is a perennial one,
admitting of no doctrinaire definition. Evils in the same field may
be of different dimensions and proportions, requiring different
remedies. Or so the legislature may think. Tigner v.
Texas, 310 U. S. 141 . Or the reform may
take one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind. Semler
v. Dental Examiners, 294 U. S. 608 . The legislature
may select one phase of one field and apply a remedy there,
neglecting the others. AFL v. American Sash Co., 335 U. S.
538 . The prohibition of the Equal Protection Clause goes
no further than the invidious discrimination. " Williamson v. Lee Optical, 348 U.
S. 483 , 348 U. S. 489 .
(Emphasis added.)

															[ Footnote 4 ]

															Whether § 509 is to be read this way or is to be read to permit
the sale of such merchandise by all vendors in Anne Arundel County
is unclear. The Maryland Court of Appeals found it unnecessary to
reach this question of state law. For purposes of this argument, we
accept the construction of § 509 set forth by appellants.

															[ Footnote 5 ] Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 303 ; Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ; Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 5 ; McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S.
210 .

															[ Footnote 6 ]

															MR. JUSTICE BLACK is of the opinion that appellants do have
standing to raise this contention. He believes that their claim is
without merit for the reasons expressed in Braunfeld v. Brown,
post, p. 366 U. S. 599 , at
pp. 366 U. S.
602 -610, and Gallagher v. Crown Kosher Super Market,
post, p. 366 U. S. 617 , at
pp. 366 U. S.
630 -631.

															[ Footnote 7 ]

															Madison's Memorial and Remonstrance Against Religious
Assessments, Par. 8, reprinted in the Appendix to Mr. Justice
Rutledge's dissenting opinion in Everson v. Board of Education,
supra, at p. 330 U. S. 68 .

															[ Footnote 8 ] Cf. Doremus v. Board of Education, 342 U.
S. 429 , where complainants failed to show direct and
particular economic detriment.

															[ Footnote 9 ]

															English statutes subsequent to this are cited and discussed in
Lewis, op. cit. supra, pp. 111-142.

															[ Footnote 10 ]

															A 1695 New York Sunday law provided:

															"Whereas, the true and sincere worship of God according to his
holy will and commandments, is often profaned and neglected by many
of the inhabitants and sojourners in this province, who do not keep
holy the Lord's day, but in a disorderly manner accustom themselves
to travel, laboring, working, shooting, fishing, sporting, playing,
horse-racing, frequenting of tippling houses and the using many
other unlawful exercises and pastimes, upon the Lord's day, to the
great scandal of the holy Christian faith, be it enacted, etc." Id. at 200-201.

															[ Footnote 11 ]

															Ministry of Munitions, Health of Munition Workers Committee,
Report on Sunday Labour, Memorandum No. 1 (1915), 5.

															[ Footnote 12 ] See cases collected at 50 Am.Jur. 802 et seq.; 24 A.L.R.2d 813 et seq.; 57 A.L.R.2d 975 et
seq. [ Footnote 13 ] See Soon Hing v. Crowley, 113 U.
S. 703 ; Hennington v. Georgia, 163 U.
S. 299 ; Petit v. Minnesota, 177 U.
S. 164 ; Friedman v. New York, 341 U.S. 907; McGee v. North Carolina, 346 U.S. 802; Gundaker
Central Motors, Inc. v. Gassert, 354 U.S. 933; Grochowiak
v. Pennsylvania, 358 U. S. 47 ; Ullner v. Ohio, 358 U. S. 131 ; Kidd v. Ohio, 358 U. S. 132 .

															[ Footnote 14 ]

															Brant, James Madison, The Virginia Revolutionist, 245-246.

															[ Footnote 15 ]

															2 The Papers of Thomas Jefferson 555.

															[ Footnote 16 ]

															3 Elliot's Debates (2d ed. 1836) 330.

															[ Footnote 17 ]

															In Judefind v. State, 78 Md. 510, 515, 28 A. 405, 407
(1894), the Maryland Court of Appeals stated,

															"Article thirty-six of our Declaration of Rights guarantees
religious liberty; but the members of the distinguished body that
adopted that Constitution never supposed they were giving a death
blow to Sunday laws by inserting that Article."

															[ Footnote 18 ]

															Mr. Justice Rutledge, joined by MR. JUSTICE FRANKFURTER, Mr.
Justice Jackson and Mr. Justice Burton, filed a lengthy dissenting
opinion in which the First Amendment's history was studied in
detail. He defined the "establishment" problem as follows:

															"Compulsory attendance upon religious exercises went out early
in the process of separating church and state, together with forced
observance of religious forms and ceremonies. Test oaths and
religious qualification for office followed later. These things
none devoted to our great tradition of religious liberty would
think of bringing back. Hence, today, apart from efforts to
inject religious training or exercises and sectarian issues into
the public schools, the only serious surviving threat to
maintaining that complete and permanent separation of religion and
civil power which the First Amendment commands is through use of
the taxing power to support religion, religious establishments, or
establishments having a religious foundation whatever their form or
special religious function. " Id. at 330 U. S. 44 .
(Emphasis added.)

															[ Footnote 19 ]

															"[N]o Person or Persons within this Province shall work or do
any bodily Labour or Occupation upon any Lords Day commonly called
Sunday, nor shall command or willfully suffer or permitt any of his
or their children Servants or Slaves to work or labour as aforesaid
(the absolute works of necessity and mercy allways Excepted), nor
shall suffer or permitt any of his her or their Children Servants
or Slaves or any other under their Authority to abuse or Prophane
the Lords Day by drunkenness, Swearing Gaming, fowling fishing,
hunting or any other Sports Pastimes or Recreations
whatsoever." Id. at 426.

															[ Footnote 20 ]

															A 1674 Maryland statute provided, in part:

															"[T]hat noe ordinary Keeper shall from and after the publicacon
hereof directly nor indirectly upon the Sabbath or Lords Day draw
or sell any strong Liquors nor permit or suffer in or about their
house or houses any tipling or gaming att Cards, Dice, ninepinn
playing or other such unlawfull exercises whatsoever. . . ."

															2 Archives of Maryland 414.

															[ Footnote 21 ]

															This purpose has been articulated in various ways at different
times. The parliamentary debates on the British Shops (Sunday
Trading Restriction) Bill in 1936 are particularly instructive. The
sponsor of the Bill stated:

															"I realise also that the State today is interfering more and
more with family life and more and more controlling the family
liberty, and, were this a Bill to restrict liberty, and above all
to restrict the liberty of the family, I would not be responsible
for introducing it. But I hope to show to the House that it is a
Bill which is necessary to secure the family life and liberty of
hundreds of thousands of our people. . . . They have the right to a
holiday on Sunday, to be able to rest from work on that day and to
go out into the parks or into the country on a summer day. That is
the liberty for which they are asking, and that is the liberty
which this Bill would give to them."

															308 Parliamentary Debates, Commons 2157-2158.

															Another member stated:

															"As a family man, let me say that my family life would be unduly
disturbed if any member had his Sunday on a Tuesday. The value of a
Sunday is that everybody in the family is at home on the same day.
What is the use of talking about a six-day working week in which
six members of a family would each have his day of rest on a
different day of the week?" Id. at 2198.

															Reports of the International Labour Conferences are also
revealing:

															"Social custom requires that the same rest-day should as far as
possible be accorded to the members of the same working family and
to the working class community as a whole. It is a fact that,
originally, religious motives determined the rest-day, and that the
tradition thus established has subsequently been maintained by law.
It appears to be a universal rule that workers in the same area or
in the same country have the same rest-day, and that the rest-day
coincides with the day established by tradition or custom, and the
International Labour Office proposes that this rule should be
maintained."

															Rep. VII, International Labour Conference, 3d Sess.1921,
127-128.

															"A study of national standards shows that the most usual
practice is to grant the weekly rest collectively on specified days
of the week. This tendency to ensure that the weekly rest is taken
at the same time by all workers on the day established by tradition
or custom has an obvious social purpose, namely to enable the
workers to take part in the life of the community and in the
special forms of recreation which are available on certain
days."

															Rep. VII(1), International Labour Conference, 39th Sess.1956,
24.

															[ Footnote 22 ]

															The Constitution itself provides for a Sunday exception in the
calculation of the ten days for presidential veto. U.S.Const., Art.
I, § 7.

															Separate opinion of MR. JUSTICE FRANKFURTER, whom MR. JUSTICE
HARLAN joins. * So deeply do the issues raised by these cases cut that it is not
surprising that no one opinion can wholly express the views even of
all the members of the Court who join in its result. Individual
opinions in constitutional controversies have been the practice
throughout the Court's history.** Such expression of differences in
view or even in emphasis converging toward the same result makes
for the clarity of candor, and thereby enhances the authority of
the judicial process.

															For me, considerations are determinative here which call for
separate statement. The long history of Sunday legislation, so
decisive if we are to view the statutes now Page 366 U. S. 460 attacked in a perspective wider than that which is furnished by
our own necessarily limited outlook, cannot be conveyed by a
partial recital of isolated instances or events. The importance of
that history derives from its continuity and fullness -- from the
massive testimony which it bears to the evolution of statutes
controlling Sunday labor and to the forces which have, during three
hundred years of Anglo-American history at the least, changed those
laws, transmuted them, made them the vehicle of mixed and
complicated aspirations. Since I find in the history of these
statutes insights controllingly relevant to the constitutional
issues before us, I am constrained to set that history forth in
detail. And I also deem it incumbent to state how I arrive at
concurrence with THE CHIEF JUSTICE's principal conclusions without
drawing on Everson v. Board of Education, 330 U. S.
1 . I Because the long colonial struggle for disestablishment -- the
struggle to free all men, whatever their theological views, from
state-compelled obligation to acknowledge and support state-favored
faiths -- made indisputably fundamental to our American culture the
principle that the enforcement of religious belief as such is no
legitimate concern of civil government, this Court has held that
the Fourteenth Amendment embodies and applies against the States
freedoms that are loosely indicated by the not rigidly precise but
revealing phrase "separation of church and state." Illinois ex
rel. McCollum v. Board of Education, 333 U.
S. 203 . The general principles of church-state
separation were found to be included in the Amendment's Due Process
Clause in view of the meaning which the presuppositions of our
society infuse into the concept of "liberty" protected by the
clause. This is the source of the limitations imposed upon the
States. To the extent that those limitations Page 366 U. S. 461 are akin to the restrictions which the First Amendment places
upon the action of the central government, it is because -- as with
the freedom of thought and speech of which Mr. Justice Cardozo
spoke in Palko v. Connecticut, 302 U.
S. 319 -- it is accurate to say concerning the principle
that a government must neither establish nor suppress religious
belief, that, "[w]ith rare aberrations, a pervasive recognition of
that truth can be traced in our history, political and legal." Id. at 302 U. S.
327 .

															But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U.
S. 306 , make sufficiently clear that "separation" is not
a self-defining concept.

															"[A]greement, in the abstract, that the First Amendment was
designed to erect a 'wall of separation between church and State'
does not preclude a clash of views as to what the wall
separates." Illinois ex rel. McCollum v. Board of Education, supra, at 333 U. S. 213 (concurring opinion). By its nature, religion -- in the
comprehensive sense in which the Constitution uses that word -- is
an aspect of human thought and action which profoundly relates the
life of man to the world in which he lives. Religious beliefs
pervade, and religious institutions have traditionally regulated,
virtually all human activity. It is a postulate of American life,
reflected specifically in the First Amendment to the Constitution
but not there alone, that those beliefs and institutions shall
continue, as the needs and longings of the people shall inspire
them, to exist, to function, to grow, to wither, and to exert with
whatever innate strength they may contain their many influences
upon men's conduct, free of the dictates and directions of the
state. However, this freedom does not and cannot furnish the
adherents of religious creeds entire insulation from every civic
obligation. As the state's interest in the individual becomes more
comprehensive, its concerns and the concerns of religion perforce
overlap. State codes and the dictates of faith touch the same
activities. Page 366 U. S. 462 Both aim at human good, and, in their respective views of what
is good for man, they may concur or they may conflict. No
constitutional command which leaves religion free can avoid this
quality of interplay.

															Innumerable civil regulations enforce conduct which harmonizes
with religious canons. State prohibitions of murder, theft and
adultery reinforce commands of the decalogue. Nor do such
regulations, in their coincidence with tenets of faith, always
support equally the beliefs of all religious sects: witness the
civil laws forbidding usury and enforcing monogamy. Because these
laws serve ends which are within the appropriate scope of secular
state interest, they may be enforced against those whose religious
beliefs do not proscribe, and even sanction, the activity which the
law condemns. Reynolds v. United States, 98 U. S.
145 ; Davis v. Beason, 133 U.
S. 333 ; Cleveland v. United States, 329 U. S. 14 .

															This is not to say that governmental regulations which find
support in their appropriateness to the achievement of secular,
civil ends are invariably valid under the First or Fourteenth
Amendment, whatever their effects in the sphere of religion. If the
value to society of achieving the object of a particular regulation
is demonstrably outweighed by the impediment to which the
regulation subjects those whose religious practices are curtailed
by it, or if the object sought by the regulation could with equal
effect be achieved by alternative means which do not substantially
impede those religious practices, the regulation cannot be
sustained. Cantwell v. Connecticut, 310 U.
S. 296 . This was the ground upon which the Court struck
down municipal license taxes as applied to religious colporteurs in Follett v. Town of McCormick, 321 U.
S. 573 ; Murdock v. Pennsylvania, 319 U.
S. 105 , and Jones v. Opelika, 319 U.
S. 103 . In each of those cases, it was believed that the
State's need for revenue, which could be Page 366 U. S. 463 satisfied by taxing any of a variety of sources, did not justify
a levy imposed upon an activity which in the light of history could
reasonably be viewed as sacramental. But see Cox v. New
Hampshire, 312 U. S. 569 , in
which the Court, balancing the public benefits secured by a
regulatory measure against the degree of impairment of individual
conduct expressive of religious faith which it entailed, sustained
the prohibition of an activity similarly regarded by its
practicants as sacramental. And see Prince v.
Massachusetts, 321 U. S. 158 .

															Within the discriminating phraseology of the First Amendment,
distinction has been drawn between cases raising "establishment"
and "free exercise" questions. Any attempt to formulate a
bright-line distinction is bound to founder. In view of the
competition among religious creeds, whatever "establishes" one sect
disadvantages another, and vice versa. But it is possible
historically, and therefore helpful analytically -- no less for
problems arising under the Fourteenth Amendment, illuminated as
that Amendment is by our national experience, than for problems
arising under the First -- to isolate in general terms the two
largely overlapping areas of concern reflected in the two
constitutional phrases, "establishment" and "free exercise,"
[ Footnote 2/1 ] and which emerge
more Page 366 U. S. 464 or less clearly from the background of events and impulses which
gave those phrases birth.

															In assuring the free exercise of religion, the Framers of the
First Amendment were sensitive to the then-recent history of those
persecutions and impositions of civil disability with which
sectarian majorities in virtually all of the Colonies had visited
deviation in the matter of conscience. [ Footnote 2/2 ] This protection of unpopular creeds,
however, was not to be the full extent of the Amendment's guarantee
of freedom from governmental intrusion in matters of faith. The
battle in Virginia, hardly four years won, where James Madison had
led the forces of disestablishment in successful opposition to
Patrick Henry's proposed Assessment Bill levying a general tax for
the support of Christian teachers, [ Footnote 2/3 ] was a vital and compelling Page 366 U. S. 465 memory in 1789. The lesson of that battle, in the words of
Jefferson's Act for Establishing Religious Freedom, whose passage
was its verbal embodiment, [ Footnote
2/4 ] was

															"that to compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves is sinful and
tyrannical; that even the forcing him to support this or that
teacher of his own religious persuasion is depriving him of the
comfortable liberty of giving his contributions to the particular
pastor whose morals he would make his pattern, and whose powers he
feels most persuasive to righteousness, and is withdrawing from the
ministry those temporal rewards which, proceeding from an
approbation of their personal conduct, are an additional incitement
to earnest and unremitting labours for the instruction of mankind.
. . . [ Footnote 2/5 ]"

															What Virginia had long practiced, and what Madison, Jefferson
and others fought to end, was the extension of civil government's
support to religion in a manner which made the two in some degree
interdependent, and thus threatened the freedom of each. The
purpose of the Establishment Clause was to assure that the national
legislature would not exert its power in the service of any purely
religious end; that it would not, as Virginia and virtually all of
the Colonies had done, make of religion, as religion, an object of
legislation.

															Of course, the immediate object of the First Amendment's
prohibition was the established church as it had been known in
England and in most of the Colonies. But, with foresight, those who
drafted and adopted the words "Congress shall make no law
respecting an establishment of religion" did not limit the
constitutional proscription to any particular, dated form of state
supported theological venture. The Establishment Clause withdrew
from Page 366 U. S. 466 the sphere of legitimate legislative concern and competence a
specific, but comprehensive, area of human conduct: man's belief or
disbelief in the verity of some transcendental idea, and man's
expression in action of that belief or disbelief. Congress may not
make these matters, as such, the subject of legislation, nor, now,
may any legislature in this country. Neither the National
Government nor, under the Due Process Clause of the Fourteenth
Amendment, a State may, by any device, support belief or the
expression of belief for its own sake, whether from conviction of
the truth of that belief or from conviction that, by the
propagation of that belief, the civil welfare of the State is
served, or because a majority of its citizens holding that belief
are offended when all do not hold it.

															With regulations which have other objectives the Establishment
Clause, and the fundamental separationist concept which it
expresses, are not concerned. These regulations may fall afoul of
the constitutional guarantee against infringement of the free
exercise or observance of religion. Where they do, they must be set
aside at the instance of those whose faith they prejudice. But once
it is determined that a challenged statute is supportable as
implementing other substantial interests than the promotion of
belief, the guarantee prohibiting religious "establishment" is
satisfied.

															To ask what interest, what objective, legislation serves, of
course, is not to psychoanalyze its legislators, but to examine the
necessary effects of what they have enacted. If the primary end
achieved by a form of regulation is the affirmation or promotion of
religious doctrine -- primary in the sense that all secular ends
which it purportedly serves are derivative from, not wholly
independent of, the advancement of religion -- the regulation is
beyond the power of the state. This was the case in McCollum. Or if a statute furthers both secular and
religious ends Page 366 U. S. 467 by means unnecessary to the effectuation of the secular ends
alone -- where the same secular ends could equally be attained by
means which do not have consequences for promotion of religion --
the statute cannot stand. A State may not endow a church although
that church might inculcate in its parishioners moral concepts
deemed to make them better citizens, because the very raison
d'etre of a church, as opposed to any other school of civilly
serviceable morals, is the predication of religious doctrine.
However, inasmuch as individuals are free, if they will, to build
their own churches and worship in them, the State may guard its
people's safety by extending fire and police protection to the
churches so built. It was on the reasoning that parents are also at
liberty to send their children to parochial schools which meet the
reasonable educational standards of the State, Pierce v.
Society of Sisters, 268 U. S. 510 ,
that this Court held in the Everson case that expenditure
of public funds to assure that children attending every kind of
school enjoy the relative security of buses, rather than being left
to walk or hitchhike, is not an unconstitutional "establishment,"
even though such an expenditure may cause some children to go to
parochial schools who would not otherwise have gone. The close
division of the Court in Everson serves to show what nice
questions are involved in applying to particular governmental
action the proposition, undeniable in the abstract, that not every
regulation some of whose practical effects may facilitate the
observance of a religion by its adherents affronts the requirement
of church-state separation.

															In an important sense, the constitutional prohibition of
religious establishment is a provision of more comprehensive
availability than the guarantee of free exercise, insofar as both
give content to the prohibited fusion of church and state. The
former may be invoked by the corporate operator of a seven-day
department store whose Page 366 U. S. 468 state-compelled Sunday closing injures it financially -- or by
the department store's employees, whatever their faith, who are
convicted for violation of a Sunday statute, as well as by the
Orthodox Jewish retailer or consumer who claims that the statute
prejudices him in his ability to keep his faith. But it must not be
forgotten that the question which the department store operator and
employees may raise in their own behalf is narrower than that posed
by the case of the Orthodox Jew. [ Footnote 2/6 ] Their "establishment" contention can
prevail only if the absence of any substantial legislative purpose
other than a religious one is made to appear. See Selective
Draft Law Cases, 245 U. S. 366 .

															In the present cases, the Sunday retail sellers and their
employees and customers, in attacking statutes banning various
activities on a day which most Christian creeds consecrate, do
assert that these statutes have no other purpose. They urge, first,
that the legislators' motives Page 366 U. S. 469 were religious. But the private and unformulated influences
which may work upon legislation are not open to judicial
probing.

															"The decisions of this court from the beginning lend no support
whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose
or motive has caused the power to be exerted." McCray v. United States, 195 U. S.
27 , 195 U. S.
56 .

															"Inquiry into the hidden motives which may move [a legislature]
to exercise a power constitutionally conferred upon it is beyond
the competency of courts." Sonzinsky v. United States, 300 U.
S. 506 , 300 U. S.
513 -514. Veazie Bank v.
Fenno , 8 Wall. 533; Arizona v. California, 283 U. S. 423 ; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 .
These litigants also argue, however, that, when the state statutory
provisions are regarded in their legislative context, religion is
apparent on their face: they point to the use of the terms "Lord's
day" and "Sabbath" and "desecration," to exceptions whose hours
permit activities only at times on Sunday when religious services
are customarily not held, to explicit prohibition of otherwise
permitted activity in the vicinity of churches, to regulations
which condition the allowance of conduct on its consistency with
the "due observance" of the day. Of course, since these various
provisions regarding exemption from the Sunday ban of certain
recreational activities have no possible application to the
litigants in the present cases, they are not themselves before the
Court, and their constitutionality is not now in issue. But they
are put forward as evidence of the purpose of the statutes which
are attacked here, and, as such, we may properly look to them, and
also to the history of the body of state Sunday regulations, which,
it is urged, further demonstrates sectarian creedal purpose. As a
basis for appraising these arguments that the statutes are
religious legislation, and preliminary Page 366 U. S. 470 to determining the claims of infringement of conscience raised
in the Gallagher and Braunfeld cases, it is
necessary to survey the long historical development and present-day
position of civil Sunday regulation. II For these purposes, the span of centuries which saw the
enunciation of the Fourth Commandment, [ Footnote 2/7 ] Constantine's edict proscribing labor on
the venerable day of the Sun, [ Footnote
2/8 ] and the Sunday prohibitions of Carlovingian, Merovingian
and Saxon rulers, and later of the English kings of the thirteenth
and fourteenth centuries, may be passed over. [ Footnote 2/9 ] What is of concern here is the Sunday
institution as it evolved in modern England, the American Colonies,
and the States of the Union under the Constitution. The first
significant English Sunday regulation, for this purpose, was the
statute of Henry VI in 1448, which, after reciting

															"the abominable injuries and offences done to Almighty God, and
to his Saints, . . . because of fairs and markets upon their high
and principal feasts, . . . in which principal and festival days,
for great earthly covetise, the people is more willingly vexed, and
in bodily labour soiled, than in other . . . days, . . . as though
they did nothing remember the horrible defiling of their souls in
buying and selling, with many deceitful lies and false perjury,
with drunkenness and strifes, and so specially Page 366 U. S. 471 withdrawing themselves and their servants from divine service .
. . ,"

															ordained that all fairs and markets should cease to show forth
goods or merchandise on Sundays, Good Friday, and the principal
feast days. [ Footnote 2/10 ] A
short-lived ordinance of Edward VI a century later, limiting the
ban on bodily labor to Sundays and enumerated holy days,
demonstrated in its preamble a similar sectarian purpose, [ Footnote 2/11 ] and in 1625 Charles I,
announcing that

															"there is nothing more acceptable to God than the true and
sincere service and worship of him . . . and that the holy keeping
of the Lord's day is a principal part of the true service of
God,"

															prohibited all meetings of the people out of their parishes for
sports and pastimes on Sunday, and all bear-baiting, bull-baiting,
interludes, common plays, and other unlawful exercises and pastimes
on that day. [ Footnote 2/12 ]
Several years later, the same king declared it reproachful of God
and religion, and hence made it unlawful, Page 366 U. S. 472 for butchers to slaughter or carriers, drovers, waggoners, etc.,
to travel on the Lord's day; [ Footnote 2/13 ] then, in 1677, [ Footnote 2/14 ] "For the better Observation and keeping
Holy the Lord's Day," the statute, 29 Charles II, c. 7, which is
still the basic Sunday law of Britain, was enacted:

															"that all and every Person and Persons whatsoever, shall on
every Lord's Day apply themselves to the Observation of the same,
by exercising themselves thereon in the Duties of Piety and true
Religion, publickly and privately; . . . and that no Tradesman,
Artificer, Workman, Labourer or other Person whatsoever, shall do
or exercise any worldly Labour, Business or Work of their ordinary
Callings, upon the Lord's Day, or any part thereof (Works of
Necessity and Charity only excepted;) . . . and that no Person or
Persons whatsoever, shall publickly cry, shew forth, or expose to
Sale, any Wares, Merchandizes, Fruit, Herbs, Goods or Chattels
whatsoever, upon the Lord's Day. . . . [ Footnote 2/15 ]"

															In 1781, a Page 366 U. S. 473 statute, 21 Geo. III, c. 49, reciting that various public
entertainments and explications of scriptural texts by incompetent
persons tended "to the great encouragement of irreligion and
profaneness," closed all rooms and houses in which public
entertainment, amusement or debates, for an admission charge, were
held. [ Footnote 2/16 ]

															These Sunday laws were indisputably works of the English
Establishment. Their prefatory language spoke their religious
inspiration, [ Footnote 2/17 ]
exceptions made from time to time were expressly limited to
preserve inviolable the hours of the divine service, [ Footnote 2/18 ] and in their
administration Page 366 U. S. 474 a spirit of inquisitorial piety was evident. [ Footnote 2/19 ] But even in this period of
religious predominance, notes of a secondary civil purpose could be
heard. Apart from the counsel of those who had, from the time of
the Reformation, insisted that the Fourth Commandment itself
embodied a precept of social, rather than sacramental significance,
[ Footnote 2/20 ] claims Page 366 U. S. 475 were asserted in the eighteenth century on behalf of Sunday
rest, in part, in the service of health and welfare. [ Footnote 2/21 ]

															Blackstone wrote that

															". . . besides the notorious indecency and scandal of permitting
any secular business to be publicly transacted on that day in a
country professing Christianity, and the corruption of morals which
usually follows its profanation, 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; it imprints on the minds
of the people that sense of their duty to God so necessary to make
them good citizens, but which yet Page 366 U. S. 476 would be worn out and defaced by an unremitted continuance of
labor, without any stated times of recalling them to the worship of
their Maker. [ Footnote 2/22 ]"

															In 1788, the schedule to the act, 28 Geo. III, c. 48, obligated
master chimney sweeps to have their apprentices washed at least
once a week, providing that, on Sunday the master should send the
apprentice to worship, should allow him to have religious
instruction, and should not allow him to wear his sweeping dress;
the act also regulated the sweeps' hours of work. In 1832, a
Commons Select Committee on the Observance of the Sabbath heard the
testimony of a medical doctor as to the physically injurious
effects of seven-day unremitted labor, [ Footnote 2/23 ] and although the report of the Committee
reveals a primarily religious cast of mind, it discloses also a
sensitivity to the plight of the journeyman bakers, seven thousand
of whom had petitioned the House for one day's repose weekly, and
to the wishes of shopkeepers and tradesmen forced by competition to
work on Sunday, although "most desirous of a day of rest."
[ Footnote 2/24 ] The Committee
recommended the enactment of severer sanctions for Lord's day
violations:

															"The objects to be attained by Legislation may be considered to
be, first, a solemn and decent outward Observance of the
Lord's-day, as that portion of the week which is set apart by
Divine Command for Public Worship, and next, the securing to every
member of the Community without any exception, and however low his
station, the uninterrupted enjoyment of that Day of Rest which has
been in Mercy provided for him, and the privilege of employing it,
as well in Page 366 U. S. 477 the sacred Exercises for which it was ordained as in the bodily
relaxation which is necessary for his wellbeing, and which, though
a secondary end, is nevertheless also of high importance. [ Footnote 2/25 ]"

															But, whatever the nature of the propulsions underlying
state-enforced Sunday labor stoppage during these centuries before
the twentieth, it is clear that its effect was the creation of an
institution of Sunday as a day apart. The origins of the
institution were religious, certainly, but through long-established
usage it had become a part of the life of the English people.
[ Footnote 2/26 ] It was a day of
rest not merely in a physical, hygienic sense, but in the sense of
a recurrent time in the cycle of human activity when the rhythms of
existence changed, a day of particular associations which came to
have their own autonomous value for life. [ Footnote 2/27 ] When that value was threatened by the
pressures of the Industrial Revolution, agitation began for new Page 366 U. S. 478 legislative action to preserve the traditional English Sunday.
[ Footnote 2/28 ]

															At the turn of the century, the Factory and Workshop Act, 1901,
prohibited the Sunday employment of women and children in
industrial establishments. [ Footnote
2/29 ] The Shops Act, 1912, in its institution of a
five-and-a-half-day week for shop assistants, built upon the base
of existing Sunday closing law. [ Footnote 2/30 ] When, during the war, the pressures
of Page 366 U. S. 479 national defense compelled continuous factory operation, a
Committee of the Ministry of Munitions appointed to investigate
industrial fatigue as this affected the health and efficiency of
munitions workers, recommended to Parliament reinauguration of
Sunday work stoppage:

															". . . The problem of Sunday labour, although materially
affected by various industrial questions and the established custom
of Sunday rest, is -- as regards Munitions Works -- primarily a
question of the extent to which workers actually require weekly or
periodic rests if they are to maintain their health and energy over
long periods. Intervals of rest are needed to overcome mental, as
well as physical, fatigue. In this connection, account has to be
taken not only of the hours of labour (overtime, 12-hour shifts,
8-hour shifts), the environment of the work, and the physical
strain involved, but also the mental fatigue or boredom resulting
from continuous attention to work. As one Manager put it, it is the
monotony of the work which kills -- the men get sick of it."

															" * * * *" ". . . [I]f the maximum output is to be secured and maintained
for any length of time, a weekly period of rest must be allowed. .
. . On economic and social grounds alike, this weekly period of
rest is best provided on Sunday. . . . [ Footnote 2/31 ] " Page 366 U. S. 480 In 1936, the conflict between the economic pressures for
seven-day commercial activity and the resistance to those pressures
culminated in the Shops (Sunday Trading Restriction) Act of that
year, which, with a complex pattern of exceptions, prohibited
Sunday trading upon pain of penalties more severe, and hence better
calculated to assure obedience, than the nominal fines which had
obtained under the seventeenth century Lord's day ban. [ Footnote 2/32 ] The Parliamentary Debates
on the 1936 Act are instructive. With extremely rare exceptions,
[ Footnote 2/33 ] no intimation of
religious purpose is to be discovered in them. [ Footnote 2/34 ] The opening speech by Mr. Loftus,
who introduced the bill, is representative:

															". . . [I]t is a Bill which is necessary to secure the family
life and liberty of hundreds of thousands of our people. . . ."

															" * * * *" Page 366 U. S. 481 ". . . I will explain to the House that there are thousands of
shopkeepers who hate opening on Sunday -- they dislike the whole
idea -- but are forced to open because their neighbours open. They
are forced to open not for the sake of the Sunday trading, but
because, if they let their customers get into the habit on Sunday
of going to other shops, they may lose their week-day custom. . . .
They have the right to a holiday on Sunday, to be able to rest from
work on that day and to go out into the parks or into the country
on a summer day. That is the liberty for which they are asking, and
that is the liberty which this Bill would give to them. As regards
the support behind the Bill, it is promoted by the Early Closing
Association, with 300 affiliated associations, and the National
Federation of Grocers, representing 400,000 individual shops, and
is supported by the National Chamber of Trade, the Drapers' Chamber
of Trade, the National Federation of the Boot Trade, and as regards
the employes -- and this is important -- it is supported by the
National Union of Shop Assistants and by the National Union of
Distributive Workers. [ Footnote
2/35 ]"

															Speakers asserted the necessity for maintaining "the traditional
quality of the Sunday in this country." [ Footnote 2/36 ] One particularly staunch Labour
supporter of the measure argued:

															". . . Frankly, I am afraid of a seven-day week. I see it coming
gradually, and a seven-day week Page 366 U. S. 482 means six days' pay for seven days' work. I have worked seven
days a week in my time, and I say that, if I can help it, nobody
else shall work seven days for six days' pay. It is clear that, if
one shopkeeper opens in a street, the whole street is bound to open
and if one street opens, the whole town must open automatically. .
. . I am not speaking as a Sabbatarian. I stand for the six-day
working week with one day's rest in seven, but I do not want that
day's rest arranged on the lines suggested by the hon. Member . . .
who, apparently, wants to turn my Sunday into a Tuesday or a
Wednesday. The argument is that all we need do is to say there
shall be a six-day working week with one day's rest in seven, and
that it does not matter whether the Sunday comes on a Friday or a
Tuesday. As a family man, let me say that my family life would be
unduly disturbed if any member had his Sunday on a Tuesday. The
value of a Sunday is that everybody in the family is at home on the
same day. What is the use of talking about a six-day working week
in which six members of a family would each have his day of rest on
a different.day of the week? [ Footnote 2/37 ]"

															The bill was strongly supported by labor and trade groups,
[ Footnote 2/38 ] and passed by an
overwhelming margin. [ Footnote
2/39 ]

															Thus, the English experience demonstrates the intimate
relationship between civil Sunday regulation and the interest of a
state in preserving to its people a recurrent time of mental and
physical recuperation from the strains and pressures of their
ordinary labors. It demonstrates also, of course, the intimate
historical connection between the choice of Sunday as this time of
rest and the doctrines Page 366 U. S. 483 of the Christian church. Long before the emergence of modern
notions of government, religion had set Sunday apart. Through
generations, the people were accustomed to it as a day when
ordinary uses ceased. If it might once -- or elsewhere -- have been
equally practicable to fulfill the same need of the workers and
traders for periodic relaxation by the selection of some other
cycle, it was no longer practicable in England. Some hypothetical
man might do better with one-day-in-eight, or one-day-in-four, but
the Englishman was used to one-day-in-seven. And that day was
Sunday. Through associations fostered by tradition, that day had a
character of its own which became, in itself, a cultural asset of
importance: a release from the daily grind, a preserve of mental
peace, an opportunity for self-disposition. Certainly, legislative
fiat could have attempted to switch the day to Tuesday. But
Parliament, naturally enough, concluded that such an attempt might
prove as futile as the ephemeral decade of the French Republic of
1792. [ Footnote 2/40 ] Page 366 U. S. 484 III .

															In England's American settlements, too, civil Sunday regulation
early became an institution of importance in shaping the colonial
pattern of life. Every Colony had a law prohibiting Sunday labor.
These had been enacted Page 366 U. S. 485 in many instances prior to the last quarter of the seventeenth
century, and they were continued in force throughout the period
that preceded the adoption of the Federal Page 366 U. S. 486 Constitution and the Bill of Rights. [ Footnote 2/41 ] This is not in itself, of course,
indicative of the purpose of those laws, or of their consistency
with the guarantee of religious freedom which the First Amendment,
restraining the power of the central Government, secured. Most of
the States were only partly disestablished in 1789. [ Footnote 2/42 ] Only in Virginia [ Footnote 2/43 ] and in Rhode Island, which
had never had an establishment, [ Footnote 2/44 ] had the ideal of complete church-state
separation been realized. Other States were fast approaching that
ideal, however, and everywhere the spirit of liberty in religion
was in the ascendant. Ratifying Conventions in New York, New
Hampshire and North Carolina, as well as in Virginia and Rhode
Island, proposed an anti-establishment amendment to the
Constitution or signified that, in their understanding the
Constitution embodied such a safeguard. [ Footnote 2/45 ] All of these five States had Sunday laws
at the time that their Conventions spoke. Indeed, in four of the
five, their legislatures had reaffirmed the Sunday labor ban within
five years or less immediately prior to that date. [ Footnote 2/46 ] Page 366 U. S. 487 The earlier among the colonial Sunday statutes were
unquestionably religious in purpose. Their preambles recite that
profanation of the Lord's day "to he great Reproach of the
Christian Religion," [ Footnote
2/47 ] or "to the great offence of the Godly welaffected among
us," [ Footnote 2/48 ] must be
suppressed; that "the keeping holy the Lord's day, is a principal
part of the true service of God"; [ Footnote 2/49 ] that neglecting the Sabbath "pulls downe
the judgments of God upon that place or people that suffer the
same. . . ." [ Footnote 2/50 ] The
first Pennsylvania Sunday law announces a purpose "That Looseness,
irreligion, and Atheism may not Creep in under pretense of
Conscience. . . ." [ Footnote
2/51 ] Sometimes Page 366 U. S. 488 reproach of God is made an operative element of the offense.
[ Footnote 2/52 ] Prohibitions of
Sunday labor are frequently coupled with admonitions that all
persons shall "carefully apply themselves to Duties of Religion and
Piety, publickly and privately . . . ," [ Footnote 2/53 ] and are found in comprehensive
ecclesiastical codes which also prohibit blasphemy, [ Footnote 2/54 ] lay taxes for the support
of the church, [ Footnote 2/55 ] or
compel attendance at divine services. [ Footnote 2/56 ] Page 366 U. S. 489 But even the seventeenth century legislation does not show an
exclusively religious preoccupation. The same Pennsylvania law
which speaks of the suppression of atheism also ordains Sunday rest
"for the ease of the Creation," and shows solicitude that servants,
as well as their masters, may be free on that day to attend such
spiritual pursuits as they may wish. [ Footnote 2/57 ] The Rhode Island Assembly in 1679
enacted:

															"Voted, Whereas there hath complaint been made that sundry
persons being eville minded, have presumed Page 366 U. S. 490 to employ in servile labor, more than necessity requireth, their
servants, and alsoe hire other mens' servants and sell them to
labor on the first day of the week: . . . bee it enacted . . . That
if any person or persons shall employ his servants or hire and
employ any other man's servant or servants, and set them to labor
as aforesaid [he shall be penalized]. [ Footnote 2/58 ] " Page 366 U. S. 491 In the latter half of the eighteenth century, the Sunday laws,
while still giving evidence of concern for the "immorality" of the
practices they prohibit, tend no longer to be prefixed by preambles
in the form of theological treatises. [ Footnote 2/59 ] Now it appears to be the community,
rather than the Deity, which is offended by Sunday labor. New
York's statute of 1788 no longer refers to the Lord's day, but to
"the first day of the week commonly called Sunday." [ Footnote 2/60 ] Where preambles do appear,
they display a duplicity of purpose. The Massachusetts Act of 1792
begins:

															"Whereas the observance of the Lord's Day is highly promotive of
the welfare of a community, by affording necessary seasons for
relaxation from labour and the cares of business; for moral
reflections and conversation on the duties of life . . . ; for
public and private worship of the Maker, Governor and Judge of the
world, and for those acts of charity which support and adorn a
Christian society: And whereas some thoughtless and irreligious
persons, inattentive to the duties and benefits of the Lord's Day,
profane the same, by unnecessarily pursuing their worldly business
and recreations on that day, to their own great damage, as members
of a Christian Page 366 U. S. 492 society; to the great disturbance of well disposed persons, and
to the great damage of the community, by producing dissipation of
manners and immoralities of life. . . ."

															An enactment of Vermont in 1797 is similar. [ Footnote 2/61 ]

															More significant is the history of Sunday legislation in
Virginia. Even before the English statute of 29 Charles II, that
Colony had had laws compelling Sunday attendance at worship
[ Footnote 2/62 ] and forbidding
Sunday labor. [ Footnote 2/63 ] In
1776, the General Convention at Williamsburg adopted a Declaration
of Rights, providing, inter alia, that " . . . all men are
equally entitled to the free exercise of religion, according to the
dictates of conscience . . . ," [ Footnote 2/64 ] and, in the same year, the acts of
Parliament compelling church attendance and punishing deviation in
belief were declared void, dissenters were exempted from the tax
for support of the established church, and the levy of that tax was
suspended. [ Footnote 2/65 ] Eight
years later came the battle over the Assessment Bill. Under
Madison's leadership the forces supporting entire freedom of
religion wrote the definitive quietus to the Virginia
establishment, and Jefferson's Bill for Establishing Religious
Freedom was enacted in 1786:

															"I. Whereas Almighty God hath created the mind free; that all
attempts to influence it by temporal Page 366 U. S. 493 punishments or burthens, or by civil incapacitations, tend only
to beget habits of hypocrisy and meanness, and are a departure from
the plan of the Holy author of our religion, who being Lord both of
body and mind, yet chose not to . . . propagate it by coercions on
either, as was in his Almighty power to do; that the impious
presumption of legislators and rulers, civil as well as
ecclesiastical, who being themselves but fallible and uninspired
men, have assumed dominion over the faith of others, setting up
their own opinions and modes of thinking as the only true and
infallible, and as such endeavouring to impose them on others, hath
established and maintained false religions over the greatest part
of the world, and through all time; . . . that to suffer the civil
magistrate to intrude his powers into the field of opinion, and to
restrain the profession or propagation of principles on supposition
of their ill tendency, is a dangerous fallacy, . . . that it is
time enough for the rightful purposes of civil government, for its
officers to interfere when principles break out into overt acts
against peace and good order, and finally, that truth is great and
will prevail if left to herself. . . ."

															"II. Be it enacted . . . That no man shall be compelled
to frequent or support any religious worship, place, or ministry
whatsoever, nor shall be enforced, restrained, molested, or
burthened in his body or goods, nor shall otherwise suffer on
account of his religious opinions or belief; but that all men shall
be free to profess, and by argument to maintain, their opinion in
matters of religion, and that the same shall in no wise diminish,
enlarge, or affect their civil capacities. [ Footnote 2/66 ]"

															In this bill breathed the full amplitude of the spirit which
inspired the First Amendment, and this Court has looked Page 366 U. S. 494 to the bill, and to the Virginia history which surrounded its
enactment, as a gloss on the signification of the Amendment. See the opinions in Everson v. Board of
Education, 330 U. S. 1 . The
bill was drafted for the Virginia Legislature as No. 82 of the
Revised Statutes returned to the Assembly by Jefferson and Wythe on
June 18, 1779. [ Footnote 2/67 ]
Bill No. 84 of the Revision provided:

															"If any person on Sunday shall himself be found labouring at his
own or any other trade or calling, or shall employ his apprentices,
servants or slaves in labour, or other business, except it be in
the ordinary household offices of daily necessity, or other work of
necessity or charity, he shall forfeit the sum of ten shillings. .
. . [ Footnote 2/68 ]"

															This bill was presented to the Assembly by Madison in 1785,
[ Footnote 2/69 ] and was enacted
in 1786. [ Footnote 2/70 ]
Apparently neither Thomas Jefferson nor James Madison regarded it
as Page 366 U. S. 495 repugnant to religious freedom. Nor did the Virginia legislators
who thirteen years later reaffirmed the Bill for Establishing
Religious Freedom as "a true exposition of the principles of the
bill of rights and constitution," by repealing all laws which they
deemed inconsistent with it. [ Footnote 2/71 ] The Sunday law of 1786 was not among
those repealed. IV Legislation currently in force in forty-nine of the fifty States
illegalizes on Sunday some form of conduct lawful if performed on
weekdays. [ Footnote 2/72 ] In
several States only one or a few activities are banned -- the sale
of alcoholic beverages, [ Footnote
2/73 ] hunting, [ Footnote
2/74 ] barbering, [ Footnote
2/75 ] pawnbroking, [ Footnote
2/76 ] trading Page 366 U. S. 496 in automobiles [ Footnote 2/77 ]
-- but thirty-four jurisdictions broadly ban Sunday labor, or the
employment of labor, or selling or keeping open for sale, or some
two or more of these comprehensive categories of affairs. In many
of these States, and in others having no statewide prohibition of
industrial or commercial activity, municipal Sunday ordinances are
ubiquitous. [ Footnote 2/78 ] Most
of these regulations are the product of many reenactments and
amendments. Although some are still built upon the armatures Page 366 U. S. 497 of earlier statutes, they are all, like the laws of Maryland,
Massachusetts and Pennsylvania which are before us in these cases,
[ Footnote 2/79 ] recently
reconsidered legislation. As expressions of state policy, they must
be deemed as contemporary as their latest-enacted exceptions in
favor of moving pictures [ Footnote
2/80 ] or severer bans of Sunday motor vehicle trading.
[ Footnote 2/81 ] In all, they
reflect a widely felt present-day need, for whose satisfaction old
laws are shaped and new laws enacted.

															To be sure, the Massachusetts statute now before the Court, and
statutes in Pennsylvania and Maryland, still call Sunday the
"Lord's day" or the "Sabbath." So do the Sunday laws in many other
States. [ Footnote 2/82 ] But the
continuation Page 366 U. S. 498 of seventeenth century language does not, of itself, prove the
continuation of the purposes for which the colonial governments
enacted these laws, or that these are the purposes for which their
successors of the twentieth have retained them and modified them.
We know, Page 366 U. S. 499 for example, that Committees of the New York Legislature,
considering that State's Sabbath Laws on two occasions more than a
century apart, twice recommended no repeal of those laws, both
times on the ground that the laws did not involve

															"any partisan religious issue, but Page 366 U. S. 500 rather economic and health regulation of the activities of the
people on a universal day of rest, [ Footnote 2/83 ]"

															and that a Massachusetts legislative committee rested on the
same views. [ Footnote 2/84 ]
Sunday legislation has been supported not only Page 366 U. S. 501 by such clerical organizations as the Lord's Day Alliance, but
also by labor and trade groups. [ Footnote 2/85 ] The interlocking sections of the
Massachusetts Labor Code construct their six-day-week provisions
upon the basic premise of "Sunday Page 366 U. S. 502 rest." [ Footnote 2/86 ] Other
States have similar laws. [ Footnote
2/87 ] When, in Pennsylvania, motion pictures were excepted from
the Lord's day statute, a "day of rest in seven clause" for motion
picture personnel was written into the exempting statute to Page 366 U. S. 503 fill the gap. [ Footnote 2/88 ]
Puerto Rico's closing law, which limits the weekday hours of
commercial establishments as well as proscribing their Sunday
operation, does not express a religious purpose. [ Footnote 2/89 ] Rhode Island and South Carolina now
enforce portions of their Sunday employment bans through their
respective Departments of Labor. [ Footnote 2/90 ] It cannot be fairly denied that the
institution of Sunday as a time whose occupations and atmosphere
differ from those of other days of the week has now been a portion
of the American cultural scene since well before the Constitution;
that, for many millions of people, life has a hebdomadal rhythm in
which this day, with all its particular associations, is the
recurrent note of repose. [ Footnote
2/91 ] Cultural history establishes not a few practices and
prohibitions religious in origin which are retained as secular Page 366 U. S. 504 institutions and ways long after their religious sanctions and
justifications are gone. [ Footnote
2/92 ] In light of these considerations, can it reasonably be
said that no substantial nonecclesiastical Page 366 U. S. 505 purpose relevant to a well ordered social life exists for Sunday
restrictions?

															It is urged, however, that, if a day of rest were the
legislative purpose, statutes to secure it would take some other
form than the prohibition of activity on Sunday. [ Footnote 2/93 ] Such statutes, it is argued, would
provide for one day's labor Page 366 U. S. 506 stoppage in seven, leaving the choice of the day to the
individual; or, alternatively, would fix a common day of rest on
some other day -- Monday or Tuesday. But, in all fairness,
certainly, it would be impossible to call unreasonable a
legislative finding that these suggested alternatives were
unsatisfactory. A provision for one day's closing per week, at the
option of every particular enterpriser, might be disruptive of
families whose members are employed by different enterprises.
[ Footnote 2/94 ] Enforcement might
be more difficult, both because violation would be less easily
discovered and because such a law would not be seconded, as is
Sunday legislation, by the community's moral temper. More
important, "one day a week" laws do not accomplish all that is
accomplished by Sunday laws

															They provide only a periodic physical rest, not that atmosphere
of entire community repose which Sunday has traditionally brought
and which, a legislature might reasonably believe, is necessary to
the welfare of those who, for Page 366 U. S. 507 many generations have been accustomed to its recuperative
effects.

															The same considerations might also be deemed to justify the
choice of Sunday as the single common day when labor ceases. For,
to many who do not regard it sacramentally, Sunday is nevertheless
a day of special, long established associations, whose particular
temper makes it a haven that no other day could provide. The will
of a majority of the community, reflected in the legislative
process during scores of years, presumably prefers to take its
leisure on Sunday. [ Footnote
2/95 ] The spirit of any people expresses in goodly measure the
heritage which links it to its past. Disruption of this heritage by
a regulation which, like the unnatural labors of Claudius'
shipwrights, does not divide the Sunday from the week, might prove
a measure ill-designed to secure the desirable community repose for
which Sunday legislation is designed. At all events, Maryland,
Massachusetts and Pennsylvania, like thirty-one other States with
similar regulations, could reasonably so find. Certainly, from
failure to make a substitution for Sunday in securing a socially
desirable day of surcease from subjection to labor and routine a
purpose cannot be derived to establish or promote religion.

															The question before the Court in these cases is not a new one.
During a hundred and fifty years, Sunday laws have been attacked in
state and federal courts as disregarding constitutionally demanded
Church-State separation, or infringing protected religious
freedoms, or on the ground that they subserved no end within the
legitimate compass of legislative power. One California court in
1858 held California's Sunday statute unconstitutional. [ Footnote 2/96 ] Page 366 U. S. 508 That decision was overruled three years later. [ Footnote 2/97 ] Every other appellate court that
has considered the question has found the statutes supportable as
civil regulations [ Footnote 2/98 ]
and Page 366 U. S. 509 not repugnant to religious freedom. [ Footnote 2/99 ] These decisions are assailed as
latter-day justifications upon specious civil grounds of
legislation whose religious purposes were either overlooked or
concealed by the judges who passed upon it. Page 366 U. S. 510 Of course, it is for this Court ultimately to determine whether
federal constitutional guarantees are observed or undercut. But
this does not mean that we are to be indifferent to the unanimous
opinion of generations Page 366 U. S. 511 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.
[ Footnote 2/100 ] 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. [ Footnote 2/101 ] Page 366 U. S. 512 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 day Page 366 U. S. 513 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 Sunday-observing 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 providing Page 366 U. S. 514 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.
[ Footnote 2/102 ] Actually, in
less than half of these twenty-one States does the exemption extend
to Page 366 U. S. 515 sales activity as well as to labor. [ Footnote 2/103 ] 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 Page 366 U. S. 516 instead of one. If it is assumed that the retail demand for
consumer items is approximately equivalent on Saturday and on
Sunday, the Sabbatarian, in proportion as he is less numerous, and
hence the competition less severe, might incur through the
exception a competitive advantage over the non-Sabbatarian, who
would then be in a position, presumably, to complain of
discrimination against his religion. [ Footnote 2/104 ] Employers who wished to avail
themselves of the exception would have to employ only their
co-religionists, [ Footnote
2/105 ] and there might be introduced into private employment
practices an element of religious differentiation which a
legislature could regard as undesirable. [ Footnote 2/106 ]

															Finally, a relevant consideration which might cause a State's
lawmakers to reject exception for observers of another day than
Sunday is that administration of such a provision may require
judicial inquiry into religious belief. A legislature could
conclude that, if all that is made requisite to qualify for the
exemption is an abstinence from labor on some other day, there
would be nothing to prevent an enterpriser from closing on his
slowest business day, to take advantage of the whole of Page 366 U. S. 517 the profitable weekend trade, thereby converting the Sunday
labor ban, in effect, into a "day of rest in seven" statute, with
choice of the day left to the individual. All of the state
exempting statutes seem to reflect this consideration. Ten of them
require that a person claiming exception "conscientiously" believe
in the sanctity of another day or "conscientiously" observe another
day as the Sabbath. [ Footnote
2/107 ] Five demand that he keep another day as "holy time."
[ Footnote 2/108 ] Three allow
the exemption only to members of a "religious" society observing
another day, [ Footnote 2/109 ]
and a fourth provides for proof of membership in such a society by
the certificate of a preacher or of any three adherents. [ Footnote 2/110 ] In Illinois the
claimant must observe some day as a "Sabbath," and in New Jersey he
must prove that he devotes that day to religious exercises.
[ Footnote 2/111 ] Connecticut,
one of the jurisdictions demanding conscientious belief, requires
in addition that he who seeks the benefit of the exception file a
notice of such belief with the prosecuting attorney. [ Footnote 2/112 ] Page 366 U. S. 518 Indicative of the practical administrative difficulties which
may arise in attempts to effect, consistently with the purposes of
Sunday closing legislation, an exception for persons
conscientiously observing another day as Sabbath are the provisions
of § 53 of the British Shops Act, 1950, [ Footnote 2/113 ] continuing in substance § 7 of the
Shops (Sunday Trading Restriction) Act, 1936. [ Footnote 2/114 ] These were the product of
experience with earlier forms of exemptions which had proved
unsatisfactory, [ Footnote
2/115 ] and the new 1936 provisions were enacted only after the
consideration and rejection of a number of proposed alternatives.
[ Footnote 2/116 ] They allow
shops Page 366 U. S. 519 which are registered under the section and which remain closed
on Saturday to open for trade until 2 p.m. on Sunday. Applications
for registration must contain a declaration that the shop occupier
"conscientiously objects on religious grounds to carrying on trade
or business on the Jewish Sabbath," [ Footnote 2/117 ] and any person who, to procure
registration, "knowingly or recklessly makes an untrue statement or
untrue representation," is subject to fine and imprisonment.
Whenever upon representations made to them the local authorities
find reason to believe that a registered occupier is not a person
of the Jewish religion or "that a conscientious objection on
religious grounds . . . is not genuinely held," the authorities may
furnish particulars of the case to a tribunal established after
consultation with the London Committee of Deputies of the British
Jews, [ Footnote 2/118 ] which
tribunal, if in their opinion the occupier is not a person of the
Jewish religion or does not genuinely hold a conscientious
objection to trade on the Jewish Sabbath, shall so report to the
local authorities, and upon this report the occupier's registration
is to be revoked. [ Footnote
2/119 ] Surely, in light of the delicate Page 366 U. S. 520 enforcement problems to which these provisions bear witness, the
legislative choice of a blanket Sunday ban applicable to observers
of all faiths cannot be held unreasonable. A legislature might in
reason find that the alternative of exempting Sabbatarians would
impede the effective operation of the Sunday statutes, produce
harmful collateral effects, and entail, itself, a not
inconsiderable intrusion into matters of religious faith. However
preferable, personally, one might deem such an exception, I cannot
find that the Constitution compels it.

															It cannot, therefore, be said that Massachusetts and
Pennsylvania have imposed gratuitous restrictions upon the Sunday
activities of persons observing the Orthodox Jewish Sabbath in
achieving the legitimate secular ends at which their Sunday
statutes may aim. The remaining question is whether the importance
to the public of those ends is sufficient to outweigh the restraint
upon the religious exercise of Orthodox Jewish practicants which
the restriction entails. See Prince v. Massachusetts, 321 U. S. 158 ; Cox v. New Hampshire, 312 U. S. 569 . The
nature of the legislative purpose is the preservation of a
traditional institution which assures to the community a time
during which the mind and body are released from the demands and
distractions of an increasingly mechanized and competition-driven
society. The right to this Page 366 U. S. 521 release has been claimed by workers and by small enterprisers,
especially by retail merchandisers, over centuries, and finds
contemporary expression in legislation in three-quarters of the
States. The nature of the injury which must be balanced against it
is the economic disadvantage to the enterpriser, and the
inconvenience to the consumer, which Sunday regulations impose upon
those who choose to adhere to the Sabbatarian tenets of their
faith.

															These statutes do not make criminal, do not place under the onus
of civil or criminal disability, any act which is itself prescribed
by the duties of the Jewish or other religions. They do create an
undeniable financial burden upon the observers of one of the
fundamental tenets of certain religious creeds, a burden which does
not fall equally upon other forms of observance. This was true of
the tax which this Court held an unconstitutional infringement of
the free exercise of religion in Follett v. Town of
McCormick, 321 U. S. 573 . But
unlike the tax in Follett, the burden which the Sunday
statutes impose is an incident of the only feasible means to
achievement of their particular goal. And again unlike Follett, the measure of the burden is not determined by
fixed legislative decree, beyond the power of the individual to
alter. Upon persons who earn their livelihood by activities not
prohibited on Sunday, and upon those whose jobs require only a
five-day week, the burden is not considerable. Like the customers
of Crown Kosher Super Market in the Gallagher case, they
are inconvenienced in their shopping. This is hardly to be assessed
as an injury of preponderant constitutional weight. The burden on
retail sellers competing with Sunday-observing and nonobserving
retailers is considerably greater. But, without minimizing the fact
of this disadvantage, the legislature may have concluded that its
severity might be offset by the industry and commercial initiative
of the individual merchant. More is demanded of him, admittedly,
whether, in the Page 366 U. S. 522 form of additional labor or of material sacrifices, than is
demanded of those who do not choose to keep his Sabbath. More would
be demanded of him, of course, in a State in which there were no
Sunday laws and in which his competitors chose -- like "Two Guys
from Harrison-Allentown" -- to do business seven days a week. In
view of the importance of the community interests which must be
weighed in the balance, is the disadvantage wrought by the
non-exempting Sunday statutes an impermissible imposition upon the
Sabbatarian's religious freedom? Every court which has considered
the question during a century and a half has concluded that it is
not. [ Footnote 2/120 ] This
Court so concluded in Friedman v. New York, 341 U.S. 907.
On the basis of the criteria for determining constitutionality, as
opposed to what one might desire as a matter of legislative policy,
a contrary conclusion cannot be reached. VI Two further grounds of unconstitutionality are urged in all
these cases, based upon the selection in the challenged statutes of
the activities included in, or excluded Page 366 U. S. 523 from, the Sunday ban. First it is argued that, if the aim of the
statutes is to secure a day of peace and repose, the laws of
Massachusetts and Maryland, by their exceptions, and the retail
sales act of Pennsylvania, by its enumeration of the articles whose
sale is forbidden, operate so imperfectly in the service of this
aim show so little rational relation to it -- that they must be
accounted as arbitrary and therefore violative of due process. The
extensive range of recreational and commercial Sunday activity
permitted in these States is said to deprive the statutes of any
reasonable basis. The distinctions drawn by the laws between what
may be sold or done and what may not, it is claimed, are
unsupported by reason. Second, these claimants argue that the same
discriminations between items which may and may not be sold, and in
some cases between the persons who may and those who may not sell
identical items, deprive them of the equal protection of the
laws.

															Although these contentions require the Court to examine
separately and with particularity the provisions of each of the
three States' statutes which are attacked, the general
considerations which govern these cases are the same. It is clear
that, in fashioning legislative remedies by fine distinctions to
fit specific needs, "The range of the State's discretion is large." Bain Peanut Co. v. Pinson, 282 U.
S. 499 , 282 U. S. 501 .
This is especially so where, by the nature of its subject,
regulation must take account of traditional and prevailing local
customs. See Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 .
"The Constitution does not require things which are different, in
fact, or opinion to be treated in law as though they were the
same." Tigner v. Texas, 310 U. S. 141 , 310 U. S.
147 .

															"Evils in the same field may be of different dimensions and
proportions, requiring different remedies. Or so the legislature
may think. . . . Or the reform may take one step at a time,
addressing itself to the phase of the Page 366 U. S. 524 problem which seems most acute to the legislative mind. . . .
The legislature may select one phase of one field and apply a
remedy there, neglecting the others." Williamson v. Lee Optical, Inc., 348 U.
S. 483 , 348 U. S.
489 .

															Neither the Due Process nor the Equal Protection Clause demands
logical tidiness. Metropolis Theatre Co. v. City of
Chicago, 228 U. S. 61 . No
finicky or exact conformity to abstract correlation is required of
legislation. The Constitution is satisfied if a legislature
responds to the practical living facts with which it deals. Through
what precise points in a field of many competing pressures a
legislature might most suitably have drawn its lines is not a
question for judicial reexamination. It is enough to satisfy the
Constitution that, in drawing them the principle of reason has not
been disregarded. See Goesaert v. Cleary, 335 U.
S. 464 . And what degree of uniformity reason demands of
a statute is, of course, a function of the complexity of the needs
which the statute seeks to accommodate.

															In the case of Sunday legislation, an extreme complexity of
needs is evident. This is so, first, because one of the prime
objectives of the legislation is the preservation of an atmosphere
-- a subtle desideratum, itself the product of a peculiar
and changing set of local circumstances and local traditions. But
in addition, in the achievement of that end, however formulated,
numerous compromises must be made. Not all activity can halt on
Sunday. Some of the very operations whose doings most contribute to
the rush and clamor of the week must go on throughout that day as
well, whether because life depends upon them, or because the cost
of stopping and restarting them is simply too great, or because to
be without their services would be more disruptive of peace than to
have them continue. Many activities have a double aspect: providing
entertainment or recreation for some persons, they Page 366 U. S. 525 entail labor and workday tedium for others. [ Footnote 2/121 ] Cogent expression of the
intricate problems which these various countervalent pressures pose
was given by Mr. Lloyd in the course of the debate in Commons on
the English Sunday closing act of 1936:

															". . . We should all like to see shopkeepers and their staffs as
far as possible in a position to observe Sunday in a normal way,
like most other people. On the other hand, we know that there are
certain reasonable needs of the public which require to be met even
on a Sunday, and I think we should also all agree that the fewest
possible number of people should have to give up their Sunday in
order to cater for those public needs. I think we should probably
reach a large measure of general agreement on the principle that
only those shops should remain open which are essential to meet the
requirements of the public, and only to the extent that they are
essential. . . . Therefore, the problem is to strike a just balance
between the reasonable needs of the Page 366 U. S. 526 public and the equally reasonable desire of the great bulk of
those engaged in the distributive trades to enjoy their share of
Sunday rest and recreation."

															"If that is accepted, it follows at once that the crux of any
Bill of this kind lies in the scope and the nature of the
exemptions to the general principle of closing on Sunday. . . .
[ Footnote 2/122 ]"

															Moreover, the variation from activity to activity in the degree
of disturbance which Sunday operation entails, and the similar
variation in degrees of temptation to flout the law, and in degrees
of ability to absorb and ignore various legal penalties, make
exceedingly difficult the devising of effective, yet
comprehensively fair, schemes of sanctions.

															Early in the history of the Sunday laws, there developed
mechanisms which served to adapt their wide general prohibitions
both to practical exigencies and to the evolving concerns and
desires of the public. Where it was found that persons in certain
activities tended with particular frequency to engage in
violations, those activities were singled out for harsher
punishment. [ Footnote 2/123 ] On
the other hand, practices found necessary or convenient to popular
habits were specifically excepted from the ban. [ Footnote 2/124 ] Under the basic English Sunday
statute, 29 Charles II, c. 7, a wide general exception obtained for
"Works of Necessity Page 366 U. S. 527 and Charity"; [ Footnote
2/125 ] this provision found its way into the American colonial
laws, [ Footnote 2/126 ] and has
descended into all of their successors currently in force.
[ Footnote 2/127 ] The effect of
the phrase has been to give the courts a wide range of discretion
in determining exceptions. But reasonable men can and do differ as
to what is "necessity." [ Footnote
2/128 ] In every jurisdiction Page 366 U. S. 528 legislatures, presumably deeming themselves fitter tribunals for
decisions of this sort than were courts, acted to resolve the
question against, or in favor of, various particular activities.
Some pursuits were expressly declared not works of necessity, or
were specially banned. [ Footnote
2/129 ] Page 366 U. S. 529 Others were expressly permitted: series of exceptions, giving
the laws resiliency in the course of cultural change, proliferated.
[ Footnote 2/130 ] Today, as
Appendix II to this opinion, post, p. 366 U. S. 551 ,
shows, the general pattern in over half of the States and in
England [ Footnote 2/131 ] is
similar. Broad general prohibitions Page 366 U. S. 530 are qualified by numerous precise exemptions, often with
provision for local variation within a State, and are frequently
bolstered by special provisions more heavily penalizing named
activities. The regulations of Maryland, Massachusetts and
Pennsylvania are not atypical in this regard, although they are
undoubtedly among the more complex of the statutory patterns.

															The degree of explicitness of these provisions in so many
jurisdictions demonstrates the intricacy of the adjustments which
they are designed to make. How delicate those adjustments can be is
strikingly illustrated, once again, by a remark of the sponsor of
the British closing bill of 1936, the most extensively documented
modern Sunday statute. Supporting an amendment which permitted
local authority to authorize the opening, during Page 366 U. S. 531 a portion of the year, of shops in areas frequented as seaside
resorts, Mr. Loftus said:

															". . . In a Bill such as this one must have elasticity. . . . We
had a unanimous demand from the Association of Fish Fryers,
representing the trade all over England, asking that fish-frying
shops should be closed on Sundays, and we agreed and took them out
of the First Schedule [which exempts shops selling meals or
refreshments]. But then we heard from Blackpool, which is visited
every year by, I suppose, millions of poor people, cotton
operatives and others, who like to get cheap meals of fried fish on
Sunday afternoons and Sunday evenings, and we feel there must be
some provision in the Bill to allow the grant of exemptions in such
a case. The difficulty is to avoid putting in a Clause which is
open to abuse and I submit that there are two provisions which
provide a safeguard. The first is that the local authority must
approve the granting of exemptions, and the second is that the
local authority cannot approve unless two-thirds of those
particular shops in its locality are in favour of exemption. Having
no desire that hardships should be inflicted on poor class people I
would ask the House to accept the Clause. [ Footnote 2/132 ]"

															Certainly, when relevant considerations of policy demand
decisions and distinctions so fine, courts must accord to the
legislature a wide range of power to classify and to delineate. It
is true that, unlike their virtually unanimous attitude on the
issue of religious freedom, state courts have not always sustained
Sunday legislation against the charge of unconstitutional
discrimination. Statutes and ordinances have been struck down as
arbitrary [ Footnote 2/133 ] or
as violative of state constitutional prohibitions Page 366 U. S. 532 of special legislation. [ Footnote 2/134 ] A far greater number of courts, in
similar classes of cases, have sustained the legislation. [ Footnote 2/135 ] But the very diversity
of judicial opinion a to what is reasonable Page 366 U. S. 533 classification -- like the conflicting views on what is such
"necessity" as will justify Sunday operations -- testifies that the
question of inclusion with regard to Sunday bans is one where
judgments rationally differ, and hence Page 366 U. S. 534 where a State's determinations must be given every fair
presumption of a reasonable support in fact. The restricted scope
of this Court's review of state regulatory legislation under the
Equal Protection Clause is of longstanding. Page 366 U. S. 535 Lindsley v. Natural Carbonic Gas Co., 220 U. S.
61 , 220 U. S. 78 -79.
The applicable principles are that a state statute may not be
struck down as offensive of equal protection in its schemes of
classification unless it is obviously arbitrary, and that, except
in the case of a statute whose discriminations are so patently
without reason that no conceivable situation of fact could be found
to justify them, the claimant who challenges the statute bears the
burden of affirmative demonstration that, in the actual state of
facts which surround its operation, its classifications lack
rationality.

															When these standards are applied, first, to the Maryland statute
challenged in the McGowan case, appellants' claims under
the Due Process and Equal Protection Clauses show themselves
clearly untenable. Counsel contend that the Sunday sales
prohibition, Md.Code Ann., 1957, Art. 27, § 521, is rendered
arbitrary by its exception of retail sales of tobacco items and
soft drinks, Page 366 U. S. 536 ice and ice cream, confectionery, milk, bread, fruit, gasoline
products, newspapers and periodicals, and of drugs and medical
supplies by apothecaries -- by the further exemption in Anne
Arundel County, under § 509, of certain recreational activities and
sales incidental to them -- and by the permissibility under other
state and local regulations of various amusements and public
entertainments on Sunday, Sunday beer and liquor sales, and Sunday
pinball machines and bingo. The short answer is that these kinds of
commodity exceptions, and most of these exceptions for amusements
and entertainments, can be found in the comprehensive Sunday
statutes of England, Puerto Rico, a dozen American States, and many
other countries having uniform day of rest legislation. [ Footnote 2/136 ] Surely unreason cannot
be so widespread. The notion that, with these matters excepted, the
Maryland statute lacks all rational foundation is baseless. The
exceptions relate to products and services which a legislature
could reasonably find necessary to the physical and mental health
of the people or to their recreation and relaxation on a day of
repose. Other sales activity and, under Art. 27, § 492, all other
labor, are forbidden. That more or fewer activities than fall
within the exceptions could with equal rationality have been
excluded from the general ban does not make irrational the
selection which has actually been made. There is presented in this
record not a trace of evidence as to the habits and customs of the
population of Maryland or of Anne Arundel County, nothing that
suggests that the pattern of legislation which their
representatives have devised is not reasonably related to local
circumstances determining their ways of Page 366 U. S. 537 life. Appellants have wholly failed to meet their burden of
proof.

															Counsel for McGowan urge that the allowance, limited to Anne
Arundel County, of retail sales of merchandise customarily sold at
bathing beaches, bathhouses, amusement parks and dancing saloons,
violates the equal protection of the laws both by discriminating
between Anne Arundel retailers and those in other counties and by
discriminating among classes of persons within Anne Arundel County
who compete in sales of the same articles. [ Footnote 2/137 ] Clearly appellants, who were convicted
for selling within the county, would not ordinarily have standing
to raise the issue of possible discrimination against out-of-county
merchants; in any event, on this record, it is dubious that the
contention was adequately raised below. Suffice to say, for
purposes of the due process issue which appellants did raise, that
the provision of different Sunday regulations for different regions
of a State is not ipso facto arbitrary. See Salsburg
v. Maryland, 346 U. S. 545 ; Missouri v. Lewis, 101 U. S. 22 , 101 U. S. 31 .
[ Footnote 2/138 ]

															As for the asserted discrimination in favor of those who sell at
the beach or the park articles not permitted to Page 366 U. S. 538 be sold elsewhere, the answer must be that between such
beach-side enterprisers and the general suburban merchandising
store at which appellants are employed there is a reasonable line
of demarcation. The reason of the exemption dictates the human
logic of its scope. The legislature has found it desirable that
persons seeking certain forms of recreation on Sunday have the
convenience of purchasing on that day items which add enjoyment to
the recreation and which, perhaps, could not or would not be
provided for by a vacationer prior to the day of his Sunday outing.
On the other hand, the policy of securing to the maximum possible
number of distributive employees their Sunday off might reasonably
preclude allowing every retail establishment in the county to open
to serve this convenience. A tenable resolution, surely, is to
permit these particular sales only on the premises where the items
will be needed and used. The enforcement problem which could arise
from permitting general merchandising outlets to open for the sale
of these items alone, but not for the sale of thousands of other
items at adjacent counters and shelves, might, in itself, justify
the limitation of the exception to the group of on-the-premises
merchants who are less likely to stock articles extraneous to the
use of the enumerated amusement facilities.

															The Massachusetts statute attacked in the Gallagher case contains a wider range of exceptions but, again, none that
this record shows to be patently baseless and therefore
constitutionally impermissible. The court below believed that
reason was offended by such provisions as those which allow,
apparently, digging for clams but not dredging for oysters, or
which permit certain professional sports during the hours from 1:30
to 6:30 p.m. while restricting their amateur counterparts to 2 to
6, or which make lawful (as the court below read the statute)
Sunday pushcart vending by conscientious Sabbatarians, but not Page 366 U. S. 539 Sunday vending within a building. But the record below, on the
basis of which a federal court has been asked to enjoin the
enforcement of a state statute, contains no evidence concerning
clam-digging or oyster-dredging, nothing to indicate that these two
activities have anything more in common -- requiring similar
treatment -- than that, in each, there is involved the pursuit of
mollusca. There is nothing in the record concerning professional or
amateur athletic events, and certainly nothing to support the
conclusion that the problem of Sunday regulation of pushcarts is so
similar to the problem of Sunday regulation of indoor markets as to
require uniform treatment for both. [ Footnote 2/139 ] These various differently treated
situations may be different in fact or they may not. A statute is
not to be struck down on supposition.

															It is true, as appellees there claim, that Crown Kosher Super
Market may not sell on Sunday products which other retail
establishments may sell on that day: bread (which may be sold
during certain hours by innkeepers, common victuallers,
confectioners and fruiterers, and, along with other bakery
products, by bakers), confectionery, frozen desserts and dessert
mix, and soda water (which may be sold by innkeepers, common
victuallers, confectioners and fruiterers, and druggists), tobacco
(which may be sold by innkeepers, common victuallers, druggists,
and regular newsdealers), etc. (The sale of drugs and newspapers on
Sunday is permitted generally.) But although Crown Kosher
undoubtedly suffers an element of competitive disadvantage from
these provisions, the provisions themselves are not irrational.
Their purpose, apparently, is to permit dealers specializing in
certain products whose distribution on Sunday is regarded as
necessary, to sell those products and also such other among the
same group Page 366 U. S. 540 of necessaries as are generally found sold together with the
products in which they specialize, thus fostering the maximum
dissemination of the permitted products with the minimum number of
retail employees required to work to disseminate them. Shops such
as newsdealers, druggists, and confectioners may in Massachusetts
tend, for all we know, to be smaller, less noisy, more widely
distributed, so that access to them from residential areas entails
less traveling, than is the case with other stores. They may tend
to hire fewer employees. They may present, because they specialize
in products whose sale is permitted, less of a policing problem
than would general markets selling these and many other products.
[ Footnote 2/140 ] Again, there
is nothing in the record to support the conclusion that
Massachusetts has failed to afford to the Crown Kosher Super Market
treatment which is equivalent to that enjoyed by all other
retailers of a class not rationally distinguishable from Crown.

															"The prohibition of the Equal Protection Clause goes no further
than the invidious discrimination. We cannot say that that point
has been reached here." Williamson v. Lee Optical, Inc., 348 U.
S. 483 , 348 U. S.
489 .

															Nor, on the record of the McGinley case, can any other
conclusion be reached as to the 1959 Pennsylvania Sunday retail
sales act. Appellants in this case argue that to punish by a fine
of up to one hundred dollars per sale -- or two hundred dollars per
sale within one year after the first offense -- the retail selling
of some twenty enumerated broad categories of commodities while
punishing all other sales and laboring activity by the four dollars
per Sunday Page 366 U. S. 541 fine fixed by the earlier Lord's day statute [ Footnote 2/141 ] is arbitrary and violative of
equal protection. But the court below found, and in this it is
supported by the legislative history of the 1959 act, [ Footnote 2/142 ] that the enactment
providing severer penalties for these classes of sales was
responsive to the appearance in the Commonwealth, only shortly
before the act's passage, of a new kind of large-scale mercantile
enterprise which, absorbing without difficulty a four dollar a week
fine, made a profitable business of persistent violation of the
earlier statute. These new enterprises may have attracted a
disturbing volume of Sunday traffic; they may have employed more
retail salesmen, and under different conditions, than other kinds
of businesses in the State; some of the legislators, apparently, so
believed. [ Footnote 2/143 ] The
danger may have been apprehended that not only would these
violations of longstanding State legislation continue, but that
competition would force open other enterprises which had for years
closed on Sunday. Under this threat, the 1959 statute was designed.
I t applies not only to the new merchandisers -- if that were so,
quite obviously, different constitutional problems would arise.
Rather it singles out the area where a danger has been made most
evident and, within that area, treats all business enterprises
equally. That in so doing it may have drawn the line between the
sale of a sofa cover, punished by a hundred-dollar fine, and the
sale of an automobile seat cover, punished by a four dollar fine,
is not sufficient to void the legislation.

															"[A] State may classify with reference to the evil to be
prevented, and . . . , if the class discriminated against is or
reasonably might be considered to define those from whom the evil
mainly is to be feared, it properly may be Page 366 U. S. 542 picked out. A lack of abstract symmetry does not matter. The
question is a practical one dependent upon experience. The demand
for symmetry ignores the specific difference that experience is
supposed to have shown to mark the class. It is not enough to
invalidate the law that others may do the same thing and go
unpunished, if, as a matter of fact, it is found that the danger is
characteristic of the class named."

															Mr. Justice Holmes, in Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S.
144 .

															Even less should a legislature be required to hew the line of
logical exactness where the statutory distinction challenged is
merely one which sets apart offenses subject to penalties of
differing degrees of severity, not one which divides the lawful
from the unlawful.

															"Judgment on the deterrent effect of the various weapons in the
armory of the law can lay little claim to scientific basis. Such
judgment as yet is largely a prophecy based on meager and
uninterpreted experience. . . ."

															". . . Moreover, the whole problem of deterrence is related to
still wider considerations affecting the temper of the community in
which law operates. The traditions of a society, the habits of
obedience to law, the effectiveness of the law-enforcing agencies,
are all peculiarly matters of time and place. They are thus matters
within legislative competence." Tigner v. Texas, 310 U. S. 141 , 310 U. S. 148 , 310 U. S. 149 .
Appellants in McGinley, like appellants in the McGowan and appellees in the Gallagher cases,
have had full opportunity to demonstrate the arbitrariness of the
statute which they challenge. On this record, they have entirely
failed to satisfy the burden which they carry. Friedman v. New
York, 341 U.S. 907; McGee v. North Carolina, 346 U.S.
802; Towery v. North Carolina, 347 U.S. 925. Cf.
Missouri, K. & T. R. Co. v. Cade, 233 U.
S. 642 .

															The Braunfeld case, however, comes here in a different
posture. Appellants, plaintiffs below, allege in their Page 366 U. S. 543 amended complaint that the 1959 Pennsylvania Sunday retail sales
act is irrational and arbitrary. The three-judge court dismissed
the amended complaint for failure to state a claim. Speaking for
myself alone, and not for MR. JUSTICE HARLAN on this point, I think
that this was too summary a disposition. However difficult it may
be for appellants to prove what they allege, they must be given an
opportunity to do so if they choose to avail themselves of it, in
view of the Court's decisions in this series of cases. I would
remand No. 67 to the District Court.

															* [NOTE: This opinion applies also to No. 36, Two Guys From
Harrison-Allentown, Inc. v. McGinley, District Attorney, Lehigh
County, Pennsylvania, et al., post, p. 366 U. S. 582 ; No.
67, Braunfeld et al. v. Brown, Commissioner of Police of
Philadelphia, et al., post, p. 366 U. S. 599 , and
No. 11, Gallagher, Chief of Police of Springfield,
Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al.,
post, p. 366 U. S.
617 .]

															** "In pursuance of my practice in giving an opinion on all
constitutional questions, I must present my views on this." Mr.
Justice Johnson, concurring, in Cherokee
Nation v. Georgia , 5 Pet. 1, 30 U. S. 20 . See Mr. Justice Story, dissenting, in Briscoe v.
Bank of the Commonwealth of Kentucky , 11 Pet. 257, 36 U. S. 329 ;
Mr. Chief Justice Taney, dissenting, Rhode
Island v. Massachusetts , 12 Pet. 657, 37 U. S. 752 . And see Mr. Justice Bradley, concurring, in the Legal Tender
Cases , 12 Wall. 457, 79 U. S.
554 :

															"I . . . should feel that it was out of place to add anything
further on the subject were it not for its great importance. On a
constitutional question involving the powers of the government, it
is proper that every aspect of it, and every consideration bearing
upon it, should be presented, and that no member of the court
should hesitate to express his views."

															[ Footnote 2/1 ]

															"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . ." Madison
had proposed an amendment that

															"The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be
in any manner, or on any pretext, infringed."

															I Annals of Cong. 434. Commenting on a subsequent form of what
was to become the First Amendment, he said that

															"he apprehended the meaning of the words to be that Congress
should not establish a religion and enforce the legal observation
of it by law, nor compel men to worship God in any manner contrary
to their conscience." Id. at 730.

															[ Footnote 2/2 ] See Cobb, The Rise of Religious Liberty in America
(1902), passim; Sweet, The Story of Religion in America
(rev. ed.1939), 54, 76-77, 98-112, 129, 139-142; Sweet, Religion in
Colonial America (1942), passim; I Channing, History of
the United States (1933), 356-381, 470-474. And see Jefferson's Notes on Virginia, in II Writings of Thomas Jefferson
(Memorial ed.1903) 217-219. The Virginia Convention which ratified
the Federal Constitution proposed as a needed amendment to it:

															"That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence, and therefore all men have an
equal, natural, and unalienable right to the free exercise of
religion, according to the dictates of conscience, and that no
particular religious sect or society ought to be favored or
established, by law, in preference to others."

															III Elliot's Debates (2d ed. 1836) 659. See also the
amendment proposed by the North Carolina Convention which declined
to ratify, IV id. at 244, and the understanding of the
Constitution expressed by Rhode Island, I id. at 334, and
New York, I id. at 328. Cf. the amendment
proposed by New Hampshire, I id. at 326.

															[ Footnote 2/3 ] See James, The Struggle for Religious Liberty in
Virginia (1900); Eckenrode, Separation of Church and State in
Virginia (1910); I Randall, Life of Thomas Jefferson (1858),
219-223; Cobb, The Rise of Religious Liberty in America (1902),
490-499; Sweet, The Story of Religion in America (rev. ed.1939),
276-279.

															[ Footnote 2/4 ]

															The history of the Virginia episode is treated extensively in
the opinions in Everson v. Board of Education, 330 U. S. 1 .

															[ Footnote 2/5 ]

															12 Hening, Statutes of Virginia (1823), 84, 85.

															[ Footnote 2/6 ]

															As appellant retailers and retail employees in the McGowan and McGinley cases have urged neither
here nor below any question of infringement of their own rights of
conscience, I agree with THE CHIEF JUSTICE that they have no
standing to raise the "free exercise" issue. United States v.
Raines, 362 U. S. 17 . The
Court need not determine at this time what averments or what
proofs, in a proper case, would be required in order to raise such
issues in their behalf. Unlike appellants in Braunfeld and
appellees in Gallagher, they have not urged that their
remaining shut on any day of the week for any reason causes Sunday
closing to disadvantage them peculiarly. They assert a right to
operate seven days a week -- a right in which they claim an
economic, not a conscientious, interest. Nor, on this record, is it
necessary to decide whether these Sunday retail sellers might have
standing to complain of the disadvantage of their enforced Sunday
closing to conscientious Sabbatarian customers or potential
customers. Cf. Barrows v. Jackson, 346 U.
S. 249 ; Pierce v. Society of Sisters, 268 U. S. 510 .
Nowhere below have they presented evidence that any such actual or
hypothetical customer is thus disadvantaged.

															[ Footnote 2/7 ] See Exodus 20:8-11, 23:12, 31:12-17; Deuteronomy
5:12-15.

															[ Footnote 2/8 ]

															Codex Justin., liber III, Tit. XII, 3. See II Schaff,
History of the Christian Church (1867), 380, n. 1. Later edicts of
the emperors were more unequivocally Christian in temper, e.g., that of 386 A. D., Codex Theo., liber VIII, Tit.
VIII, 3. See Pharr, The Theodosian Code (1952), 209.

															[ Footnote 2/9 ] See Lewis, A Critical History of Sunday Legislation
(1888), 1-90; Neale, Feasts and Fasts (1845), 86-137; Johnson and
Yost, Separation of Church and State (1948), 219-221; XII
Encyclopedia of Religion and Ethics (Hastings ed.1921), 103-106;
Savage, Sunday in Church History, in How Shall We Keep Sunday
(1898) 27.

															[ Footnote 2/10 ]

															27 Henry VI, c. 5.

															[ Footnote 2/11 ]

															5 & 6 Edw. VI, c. 3.

															"Forasmuch as at all times men be not so mindful to laud and
praise God, so ready to resort and hear God's holy word, and to
come to the holy communion and other laudable rites, which are to
be observed in every christian congregation, as their bounden duty
doth require: . . . therefore to call men to remembrance of their
duty, and to help their infirmity, it hath been wholsomly provided,
that there should be some certain times and days appointed, wherein
the christian should cease from all other kind of labours, and
should apply themselves only and wholly unto the aforsaid holy
works, properly pertaining unto true religion. . . ."

															Violations were to be punished by the censures of the church,
administered by the bishops, archbishops and other persons having
ecclesiastical jurisdiction. The purpose of this ordinance was
apparently to restrict to a fixed and relatively limited number the
days upon which labor should cease, the multiplication of saints'
days having risen until they came to consume an alarming proportion
of the year. It was repealed under Queen Mary.

															[ Footnote 2/12 ]

															1 Charles I, c. 1. This regulation, while prescribing civil
penalties, preserved the concurrent jurisdiction of the
ecclesiastical courts to punish Sabbath breaking.

															[ Footnote 2/13 ]

															3 Charles I, c. 2.

															[ Footnote 2/14 ]

															For a survey of the extensive Sunday regulations promulgated
under the Commonwealth, see Lewis, op. cit.
supra, 366
U.S. 420 fn2/9|>note 9, at 115-142.

															[ Footnote 2/15 ]

															Work was punished by penalty of five shillings, selling by
forfeiture of the goods. The ban against butchers and herders
traveling on Sunday was repeated, under fine of twenty shillings.
Dressing of meat in families and dressing or selling of meat in
inns and victualling houses "for such as otherwise cannot be
provided" was permitted, as was the crying or selling of milk
before 9 a.m. and after 4 p.m. Later statutes made numerous other
exceptions to the English Sunday ban: see, e.g., 9 Anne,
c. 23, § 20, exempting hackney coaches; the Sunday Entertainments
Act, 1932, 22 & 23 Geo. V, c. 51, exempting motion pictures at
the option of local authority and under stipulated conditions, and
also making lawful certain musical entertainments, lectures and
debates, and the operation of museums, galleries zoological and
botanical gardens, etc., and the evolving regulation of Sunday
baking, 34 Geo. III, c. 61; 1 & 2 Geo. IV, c. 50, § 11; 3 Geo.
IV, L. & P., c. 106, § 16; 6 & 7 Wm. IV, c. 37, § 14;
Baking Industry (Hours of Work) Act, 1954, 2 & 3 Eliz. II, c.
57, § 12. The Sunday Observation Prosecution Act, 1871, 34 & 35
Vict., c. 87, provided that no prosecutions under the statute, 29
Charles II, c. 7, might be brought without the consent of a chief
police officer, a stipendiary magistrate, or two justices of the
peace.

															[ Footnote 2/16 ]

															Common informer practice under this statute has since been
abolished. Common Informers Act, 1951, 14 & 15 Geo. VI, c.
39.

															[ Footnote 2/17 ] See Fennell v. Ridler, 5 B. & C. 406, 407-408
(1826):

															"The spirit of the act [of 29 Charles II] is to advance the
interests of religion, to turn a man's thoughts from his worldly
concerns, and to direct them to the duties of piety and religion,
and the act cannot be construed according to its spirit unless it
is so construed as to check the career of worldly traffic. . . .
Labour may be private and not meet the public eye, and so not
offend against public decency, but it is equally labour, and
equally interferes with a man's religious duties."

															[ Footnote 2/18 ]

															The Book of Sports published by James I in 1618 and republished
by Charles I in 1633 provided:

															"as for our good people's lawful recreation, our pleasure . . .
is that, after the end of divine service, our good people be not
disturbed . . . from any lawful recreation, such as dancing, . . .
leaping, vaulting, or any other such harmless recreation. . .
."

															"And likewise we bar from the benefit and liberty all such known
recusants, either men or women, as will abstain from coming to
church or divine service, being therefore unworthy of any lawful
recreation after said service, that will not first come to church
and serve God. Prohibiting in like sort the said recreations to any
that, though conform in religion, are not present in the church at
the service of God, before their going to the said
recreations."

															"Our pleasure, likewise is, that they to whom it belongeth in
office, shall present and punish sharply all such as in abuse of
this our liberty will use their exercises before the end of all
divine services for that day."

															Lewis, op. cit. supra, 366
U.S. 420 fn2/9|>note 9, at 106-107. See Govett, The
King's Book of Sports (1890). See also the excepting
proviso to the statute, 10 & 11 Wm. III, c. 24, § 14,
respecting Billingsgate Market. Certain importation and selling of
fish "before or after Divine Service on Sundays" is not to be
deemed prohibited.

															[ Footnote 2/19 ]

															Such a spirit may be seen in various royal proclamations
enjoining strict enforcement of the Sunday laws, see Whitaker, The Eighteenth-Century English Sunday (1940), 56,
172-173, and in the language of charges to the grand juries
encouraging their performance of their duties under the laws, see id. at 53, 57-58. Private societies formed as
self-appointed agents of administration of the Sunday laws ere
religious in orientation. See id. at 62, 69, 121-123,
195-197.

															[ Footnote 2/20 ]

															The injunction to observe the Sabbath day in Deuteronomy 5:14 is
that, on that day,

															". . . thou shalt not do any work, thou, nor thy son, nor thy
daughter, nor thy manservant, nor thy maidservant, nor thine ox,
nor thine ass, nor any of thy cattle, nor thy stranger that is
within thy gates; that thy manservant and thy maidservant may rest
as well as thou."

															Among Christian explicators of the Old Testament, a social
inspiration was early ascribed to this language. See Milton, A Treatise on Christian Doctrine, book 2, c. 7, in V Prose
Works of John Milton (Sumner trans. 1877) 67. Luther, in the Large
Catechism, part I, Third Commandment, wrote:

															". . . we keep holydays not for the sake of intelligent and
learned Christians, for they have no need of it. We keep them,
first, for the sake of bodily necessity. Nature teaches and demands
that the mass of the people -- servants and mechanics, who the
whole week attend to their work and trades -- retire for a day of
rest and recreation."

															I Lenker, Luther's Catechetical Writings (1907), 60. See
also Luther's Treatise on Good Works (1520), Third
Commandment, XVII, in I Works of Martin Luther (1915), 241. Compare Calvin's Institutes: among the three reasons for
Sabbath observance, the Lord

															"resolved to give a day of rest to servants and those who are
under the authority of others, in order that they should have some
respite from toil."

															Calvin, Institutes of the Christian Religion (Battles
trans.1960), book II, c. 8, § 28, at p. 395. And see Early
Writings of John Hooper, D. D. (Carr ed. 1843) 337:

															"Then likewise God by this commandment provideth for the
temporal and civil life of man, and likewise for all things that be
necessary and expedient for man in this life. If man, and beast
that is man's servant, should without repose and rest always
labour, they might never endure the travail of the earth. God
therefore, as he that intendeth the conservation and wealth of man
and the thing created to man's use, commandeth this rest and repose
from labour, that his creatures may endure and serve as well their
own necessary affairs and business, as preserve the youth and
offspring of man and beast. . . ."

															[ Footnote 2/21 ]

															In 1778, there appeared an essay by Vicesimus Knox, M. A.
supporting state-enforced Sunday observance on grounds of health
and custom as well as of religion. See Whitaker, The
Eighteenth-Century English Sunday (1940), 148. It is reported that,
in 1728, the members of the Gloucester Company or Fraternity of
Barbers had undertaken to enforce by fine a self-imposed
prohibition of Sunday labor, apparently to assure that those who
wanted a six-day work week would not be compelled by competition to
labor on the whole seven. See id. at 59-60.

															[ Footnote 2/22 ]

															IV Blackstone Commentaries (Lewis ed. 1897) *63. Compare the Report of the Committee on the Judiciary on
the petition praying "the repeal of all laws . . . enforcing the
observation of a day of the week as the Sabbath . . . ,"
Mass.Leg.Docs., H.Doc. No. 125 (1851), 9-10.

															[ Footnote 2/23 ]

															Report from Select Committee on the Observance of the Sabbath
Day, in 7 H.C., Sessional Papers (1831-1832), at pp. 116-117.

															[ Footnote 2/24 ] Id. at p. 6. See id. at pp. 5-8.

															[ Footnote 2/25 ] Id. at pp. 9-10.

															[ Footnote 2/26 ] See Trevelyan's comment quoted in the foreword to
Skottowe, The Law Relating to Sunday (1936); Whitaker, Sunday in
Tudor and Stuart Times (1933); Whitaker, The Eighteenth-Century
English Sunday (1940), especially at 192, 199-201.

															[ Footnote 2/27 ]

															Addison, writing in No. 112 of the Spectator, July 9, 1711:

															"I am always very well pleased with a country Sunday, and think,
if keeping holy the seventh day were only a human institution, it
would be the best method that could have been thought of for
polishing and civilizing of mankind. It is certain the country
people would soon degenerate into a kind of savages and barbarians
were there not such frequent returns of a stated time in which the
whole village meet together with their best faces, and in their
cleanest habits, to converse with one another upon different
subjects, hear their duties explained to them, and join together in
adoration of the supreme Being. Sunday clears away the rust of the
whole week, not only as it refreshes in their minds the notions of
religion, but as it puts both the sexes upon appearing in their
most agreeable forms, and exerting all such qualities as are apt to
give them a figure in the eye of the village."

															The Spectator (Am. ed. 1859), at 160. See the attempt
to capture the peculiar atmosphere of Sunday in the opening lines
to the second book of Crabbe's The Village (1783).

															[ Footnote 2/28 ]

															In 1895, the late president of a grocers' association,
testifying on a proposed bill regulating the closing hours of
shops, urged that the Commons Committee recommend Sunday closing to
the House; the many English grocers who wanted their Sunday off
were alarmed at the threat of increased trade by competitors which
would force their own opening on Sunday. Report from the Select
Committee on Shops (Early Closing) Bill (Commons 1895) 158-159. The
Report from the Select Committee of the House of Lords on the
Sunday Closing (Shops) Bill [H.L.] (1905) did recommend Sunday
closing legislation, which it found supported by all but one of the
more than three hundred shopkeepers associations whose views were
ascertained. The Committee's Report, at VI-VII, quotes the
testimony of a witness (a clergyman, it may be noted), that

															". . . the great need that impresses all of us busy workers in
my part of London is the fact that, because of the noise and rush,
we do want to safeguard the lives of our people by their having one
day in seven. It is necessary for brain and for body, quite apart
from the religious aspect of the question, for the moment, and by
the stress at which we are all living down there Sunday has become
practically like any other day. . . . The British population say
that they would lose their custom in a great measure if they, in
self-defence, did not open on Sunday. The feeling is very dominant
that the result is that many of them have to work, whether they
like it or not, seven days a week."

															( See also testimony to the same effect, id. at
3-4, 17, 20, 30, 36, 40.)

															[ Footnote 2/29 ]

															1 Edw. VII, c. 22, § 34. Continued, as amended, in the Factories
Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 77.

															[ Footnote 2/30 ]

															2 Geo. V, c. 3, §§ 1, 4, provides for a half-day closing and a
half-day off for employees "[o]n at least one week day in each
week." (§ 1.) Other twentieth century legislation indicates
recognition of the interweaving effects of the Sunday laws and
other hours-of-labor legislation. The statute of 2 & 3 Eliz.
II, c. 57, § 12, repealed the Sunday laws affecting the baking
industry as part of a new program of hours regulation for that
industry. The Sunday Entertainments Act, 1932, 22 & 23 Geo. V,
c. 51, permitting Sunday cinema at local option, subjects the
allowance of Sunday operation to the condition that no person may
be employed therein who has worked on each of the six days next
preceding, except in emergencies, in which case the employee must
get his day's rest subsequently.

															[ Footnote 2/31 ]

															Ministry of Munitions, Health of Munition Workers Committee,
Report on Sunday Labour, Memorandum No. 1 [Cmd. 8132] (1915), 3, 5.
The Committee had not been directed specifically to investigate the
Sunday labor question, but in its inquiries generally into hours of
labor, it discovered that "employers and workers were specially
concerned at the present time with the problem of Sunday labour,"
and the Committee was "so impressed with the urgency and importance
of this question," that it determined to submit a preliminary
report on this subject alone. Id. at 3.

															[ Footnote 2/32 ]

															26 Geo. V & 1 Edw. VIII, c. 53. See also the Retail
Meat Dealers' Shops (Sunday Closing) Act, 1936, 26 Geo. V & 1
Edw. VIII, c. 30. These acts are continued in the Shops Act, 1950,
14 Geo. VI, c. 28, part IV.

															[ Footnote 2/33 ] See 308 H. C. Deb. 2216 and 2223 (5th ser.1935-1936)
(suggesting that persons ought not be made to work on a day when
they would want to attend religious services); id. at
2211. The strongest Christian religious sentiment was demonstrated
by an opponent of the bill, see 311, id. at 497.
Other opposing speakers waved the shibboleth of religious motive in
an attempt to discredit the measure. See 308, id. at 2190-2191; 311, id. at 2097; but see 308, id. at 2179-2182; 101 H.L.Deb. 262 (5th ser. 1935-1936)
(two opponents admit absence of religious purpose or effect).

															[ Footnote 2/34 ]

															This is especially significant in England where, of course, no
constitutional compulsion exists to encourage Parliament to "make a
record" concealing a clandestine sectarian aim.

															[ Footnote 2/35 ]

															308 H.C.Deb. 2157-2159 (5th ser.1935-1936). See also
id. at 2165-2167, 2174, 2183, 2186, 2207, 2211, 2213,
2223-2224; 101 H.L.Deb. 254-255, 266 (5th ser.1935-1936).

															[ Footnote 2/36 ]

															308 H.C.Deb. 2209 (5th ser.1935-1936). See also 311, id. at 453-454, 490. Throughout the debates, it is
emphasized that the bill was "a Sunday Trading Restriction Bill,
and not . . . a Bill to have one day's rest in seven." 311, id. at 456; see id. at 2106. Yet it was not the
sacred quality of the day that was meant.

															[ Footnote 2/37 ]

															308, id. at 2197-2198.

															[ Footnote 2/38 ] See 308, id. at 2186, 2194-2195, 2206; 311, id. at 2095.

															[ Footnote 2/39 ]

															Although a private member's bill, the measure passed on the
second reading in Commons by a 191-to-8 vote. 308, id. at
2230.

															[ Footnote 2/40 ]

															Even on the Continent, the forces which in the latter half of
the nineteenth century pressed for the amelioration of the working
conditions of the laborer expressed themselves in part in Sunday
legislation. Germany, Austria, the Swiss Federal Government,
Denmark, Norway and Russia in the 1870's, 80's and 90's promulgated
regulations prohibiting Sunday employment -- in some cases only for
women and children; in others, for all workers in enumerated
industries -- or closing factories or commercial establishments
during part or all of the day. See Congress International
du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 339-344;
Congress International du Repos du Dimanche, Bruxelles, 1897,
Rapports et Compte Rendu (1898), 9-24, 139-159, 229-234; Congress
International du Repos du Dimanche, Paris, 1900, Rapports et Compte
Rendu (1900), Rapports No. I, II, VII; Mackenzie, ed., The World's
Rest-Day, An Account of the Thirteenth International Congress on
the Lord's Day, Edinburgh, 1908 (1909), 168-187; Report of the
Joint Special Committee to Revise, Consolidate and Arrange the
General Laws . . . Relating to the Observance of the Lord's Day,
Mass.Leg.Docs., H.Doc. No. 1160 (1907), Appendix, at 57-66. In the
late 1880's, a German plebiscite conducted by Bismarck showed
strong popular support among both employers and employees for
Sunday closing. See Congress International du Repos
Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 360-364. The
development of the European Sunday closing movement is reflected in
the proceedings of the various conventions of an institution which
convened sometimes as the International Congress on Sunday rest,
sometimes as the International Congress for weekly rest. See the reports cited, supra; see also, e.g., Jackson, ed., Sunday Rest in the Twentieth Century, An Account of
the International Sunday Rest Congress at St. Louis, 1904 (1905);
Congresso Internazionale Pro Riposo Settimanale, Resoconto, Milano,
1906 (undated); Sunday, The World's Rest Day, Fourteenth
International Lord's Day Congress, Oakland, California, 1915
(1916). At the first meeting of this group, in Geneva in 1876, the
delegates displayed a primarily religious outlook, although much
was also said of the physical and moral betterment of the worker
through periodic rest. Congress sur l'observation du Dimanche,
Geneve, 1876, Actes (1876), 120, 187-191, 353-367. A major
objective of the Conference was to secure Sunday off for the
railroad employees. When, after several intervening conventions,
the International Congress met in Paris in 1889, it was under the
presidency of Leon Say, and its temper was rather secular than
clerical. It took the name of the Congress International du Repos
Hebdomadaire, and though it contained members both of
conservative-religious and of socialist tendencies, the latter were
more vocal, and especially took the lead in formulating the
Congress' program of state-enforced, rather than merely voluntary,
industrial closing. See Congress International du Repos
Hebdomadaire, Paris 1889, Compte-Rendu (1890), 83-93, 103-108,
344-380. Yet the group resolved to demand not merely some one
indiscriminate day of rest weekly, but Sunday:

															"1. Sunday rest is possible to varying degrees in every
industry. 2. This is the day of rest which is most suitable both to
the employer and to the worker, as well from the point of view of
the individual as from that of the family, and because it is good
that the day of rest should be, as much as possible, the same for
all." Id. at 160 (translated from the French); see also
id. at 126, 167, 197. ( Compare the Convention
Concerning Weekly Rest in Commerce and Offices, 1957, Convention
106 of the General Conference of the International Labour
Organization, Geneva, 1957, H.R.Doc. No. 432, 85th Cong., 2d Sess.
7-12, providing for a weekly day of rest which shall, where
possible, "coincide with the day of the week established as a day
of rest by the traditions or customs of the country or district."
Art. 6, § 3. So far as possible, the traditions and customs of
religious minorities are to be respected. Art. 6, § 4. Similarly,
The International Labour Conference's Draft Convention Concerning
the Application of the Weekly Rest in Industrial Undertakings,
adopted at the Third Session of the General Conference in Geneva in
1921, establishes 24 consecutive hours of rest per seven days for
industrial workers, to be fixed, wherever possible "so as to
coincide with the days already established by the traditions or
customs of the county or district." Art. 2. International Labour
Conference, 3d Sess., Draft Conventions & Recommendations
(1921), 30.)

															At Chicago, four years later, both clerical and laborite
perspectives were again represented; George E. McNeill, one of the
pioneers of the American labor movement, spoke, and the
representative of the Brotherhood of Railway Trainmen and other
railroad workers' organizations, L. S. Coffin, supported Sunday
rest. The Sunday Problem, Its Present Day Aspects, Papers Presented
at the International Congress on Sunday Rest, Chicago, 1893 (1894),
43, 95. In 1897, at Brussels, the spirit was again predominantly
secular; the Congress debated extensively the question whether
governmental action to compel a day of rest was advisable, or
whether the matter could best be handled by persuasion of
individual employers, and the sense of the meeting strongly favored
governmental intervention. Congress International du Repos du
Dimanche, Bruxelles 1897, Rapports et Compte Rendu (1898), 35-47,
161-171, 377-385, 387-393, 538-559. See also Congress
International du Repos du Dimanche, Paris, 1900, Rapports et Compte
Rendu (1900). Later meetings of the Congress tended to be
religion-oriented, although secular interests continued to find
voice. See Jackson, ed., op. cit. supra, at
59-77, 85-96; Mackenzie, ed., op. cit. supra, at 187.

															[ Footnote 2/41 ] See Appendix I to this opinion, post, p. 366 U. S. 543 .
Hereafter the colonial Sunday statutes will be cited by date and
Colony.

															[ Footnote 2/42 ]

															Cobb, The Rise of Religious Liberty in America (1902), 482-517;
Sweet, The Story of Religion in America (rev. ed.1939),
274-280.

															[ Footnote 2/43 ] See James Madison's essay, "Monopolies. Perpetuities.
Corporations. Ecclesiastical Endowments," in Fleet, Madison's
"Detatched Memoranda," 3 Wm. & Mary Q. 534, 551, 554-556
(1946). See authorities cited in 366
U.S. 420 fn2/3|>note 3, supra. [ Footnote 2/44 ] See Proceedings of the First General Assembly of "The
Incorporation of Providence Plantations," and the Code of Laws,
1647 (1847), 50: ". . . and, otherwise than thus what is herein
forbidden, all men may walk as their consciences persuade them,
every one in the name of his GOD. . . ." See Cobb, The
Rise of Religious Liberty in America (1902), 423-440.

															[ Footnote 2/45 ] See 366
U.S. 420 fn2/2|>note 2, supra. [ Footnote 2/46 ]

															New Hampshire enacted Sunday laws in 1785 and 1789, New York in
1788, Virginia in 1786. Rhode Island in 1784 exempted from her
Sunday labor ban members of Sabbatarian societies, but specified
that the exemption did not extend to allow such persons to keep
shops open or to do mechanical labor in compact places; in 1798,
Rhode Island again enacted a comprehensive Sunday law with the same
exceptions.

															[ Footnote 2/47 ]

															Delaware, 1740.

															[ Footnote 2/48 ]

															Massachusetts (Plymouth), 1658.

															[ Footnote 2/49 ]

															Georgia, 1762. See also Maryland, 1696; New York, 1685;
South Carolina, 1712. See the statute of 1 Charles I,
quoted in text at 366
U.S. 420 fn2/12|>note 12, supra. The law of the
Massachusetts Bay Colony in 1653 recited that playing, walking,
drinking, sporting, and traveling on the Lord's day tend

															"much to the Dishonour of God, the Reproach of Religion,
Grieving the Souls of Gods Servants, and the Prophanation of his
Holy Sabbath, the Sanctification whereof is sometimes put for all
Duties, immediately respecting the service of God contained in the
first Table. . . ."

															[ Footnote 2/50 ]

															Connecticut, 1668.

															[ Footnote 2/51 ]

															Pennsylvania, 1682; see also the statutes of 1690,
1700. The "Body of Laws" of 1682 declared religious tolerance for
all persons believing in a Supreme Being:

															"But to the end That Looseness, irreligion, and Atheism may not
Creep in under pretense of Conscience in this Province, Be It
further Enacted . . . That, according to the example of the
primitive Christians, and for the ease of the Creation, Every first
day of the week, called the Lord's day, People shall abstain from
their usual and common toil and labour, That whether Masters,
Parents, Children, or Servants, they may the better dispose
themselves to read the Scriptures of truth at home, or frequent
such meetings of religious worship abroad, as may best sute their
respective persuasions."

															[ Footnote 2/52 ]

															The New Haven Code of 1656 provides:

															"Whosoever shal prophane the Lord's Day, or any part of it,
either by sinful servile work, or by unlawful sport, recreation or
otherwise, whether willfully, or in a careless neglect, shal be
duly punished by fine, imprisonment, or corporally, according to
the nature and measure of the sinn, and offence. But if the court
upon examination, by clear and satisfying evidence, find that the
sin was proudly, presumptuously, and with a high hand committed
against the known command and authority of the blessed God, such a
person, therein despising and reproaching the Lord, shal be put to
death, that all others may fear and shun such provoaking Rebellious
courses. Numb. 15: from 30 to 36 verse."

															The Plymouth Colony law of 1671 is similar. And see the
act published in the Bay Colony in 1647, by which to "deny the
moralities of the fourth commandement" is branded among other
heresies and made punishable by banishment.Laws and Liberties of
Massachusetts, 1648 (reprinted 1929), 24.

															[ Footnote 2/53 ]

															Massachusetts, 1692. See also New Hampshire, 1700;
North Carolina, 1741. These statutes are patterned on 29 Charles
II, c. 7, quoted in text at 366
U.S. 420 fn2/15|>note 15, supra. [ Footnote 2/54 ]

															Maryland, 1649; cf. Virginia, 1705 (atheism).

															[ Footnote 2/55 ]

															Maryland, 1692, "An Act for the Service of Almighty God and the
Establishment of the Protestant Religion within this Province."

															[ Footnote 2/56 ] See the Connecticut statute set forth in the Acts and
Laws, 1750; Georgia, 1762; Massachusetts, 1761. Compulsory church
attendance laws in the New England Colonies dated from before the
middle of the seventeenth century. See the Code of 1650 of
the General Court of Connecticut (1822) 46, and the Bay Colony's
act published in 1647, Laws and Liberties of Massachusetts, 1648
(reprinted 1929), 20.

															[ Footnote 2/57 ] See 366
U.S. 420 fn2/51|>note 51, supra. This latter object,
not the compulsion of conscience, but the liberation of all
individuals from Sunday labor and Sunday disturbance so that they
might worship God as their own consciences dictated, was, at one
period, not infrequently put forward as the justifying purpose of
the Sunday laws. State v. Ambs, 20 Mo. 214, 218 (1854); George v. George, 47 N.H. 27, 34 (1866); Lindemnuller
v. People, 33 Barb. 548, 564 (N.Y.Sup.Ct. 1861); Johnston
v. Commonwealth, 22 Pa. 102, 115 (1853). As the habits and
preoccupations of the people themselves changed, it was but a short
step from this reasoning to the recognition that Sunday laws serve
the purpose of providing leisure and peace favorable to the pursuit
of whatever aspirations, religious or secular, various individuals
may choose. See text at 366
U.S. 420 fn2/35|>note 35, supra. Sensitive to
emerging new popular needs and desires, legislatures were later to
reshape the Sunday laws by complex patterns of exceptions
permitting numerous recreational activities which, far from
according with the original puritanical inspiration of the Lord's
day acts, were precisely those games and sports which colonial
legislation most severely condemned. See, e.g., Virginia,
1610; Connecticut, 1668. The development of these evolving
exceptions is discussed briefly in text at notes 366
U.S. 420 fn2/124|>124-131, infra; its product may be
seen in Appendix II to this opinion, post, p. 366 U. S. 551 .
What it is significant to note at this point is that the continuity
which marks the history of the Sunday laws is a continuity both of
enduring and changing social demands. The enduring feature has been
man's need for a day set apart, a day of community repose: this he
has persistently, continuingly demanded. The changing feature has
been the way in which he chooses to spend his day. The need which
the "Body of Laws" recognized in Pennsylvania in 1682 was both the
same and different than that expressed by Luther, see 366
U.S. 420 fn2/20|>note 20, supra, and that which
twentieth century Sunday legislation accommodates. It is the need
for a recurrent time when the common concerns of the working week
cease to make their demands, and there is a peace that is general
to the community -- whether the individual finds it at church, at
home, at the beach, in the country, or at the baseball game.

															[ Footnote 2/58 ]

															3 Records of the Colony of Rhode Island and Providence
Plantations, 1678-1706 (1858), 30-31. The first Rhode Island Sunday
law was an enactment of 1673 prohibiting the dispensing of
alcoholic beverages on Sunday. Its preamble is this:

															"Voted, this Assembly consideringe that the King hath granted us
that not any in this Collony are to be molested in the liberty of
their consciences, who are not disturbers of the civille peace, and
wee are perswaded that a most flourishing civil government with
loyalty may be best propagated where liberty of conscience by any
corporall power is not obstructed that is not to any unchastness of
body, and not by a body doeinge any hurt to a body, neither
indeavoringe soe to doe, and although wee know by man not any can
be forced to worship God or for to keep holy or not to keep holy
any day; but forasmuch as the first dayes of weeks, it is usuall
for parents and masters not to imploy their children or servants as
upon other dayes, and some others alsoe that are not under such
government, accountinge it as a spare time, and soe spend it in
debaistness or tipplinge and unlawfull games and wantonness, and
most abhominably there practiced by those that live with the
English at such times to resort to townes. Therefore, this
Assembly, not to oppose or propagate any worship, but as by
preventinge debaistnes, although wee know masters or parents cannot
and are not by violence, to indeavor to force any under their
govornment, to any worshipper from any worshipp, that is not
debaistness or disturbant to the civille peace, but they are to
require them, and if that will not prevaile, if they can they
should compell them not to doe what is debaistnes, or unciville or
inhuman, not to frequent any imodest company or practices."

															[ Footnote 2/59 ] See New Jersey, 1798: Delaware, 1795 (this statute does
recite that its purpose is to deter those who "profane" the Lord's
day); New Hampshire, 1785 and 1789 (these acts were, however,
recommended to be read by ministers to their congregations). It is
true that the Pennsylvania statute of 1794 is an act for the
prevention of immorality and that the New Jersey statute of 1790 is
"An Act to promote the Interest of Religion and Morality, and for
suppressing of Vice . . . ," but even these enactments show a very
different tenor than that of earlier legislation in the same
Colonies. See, e.g., Pennsylvania, 1682; New Jersey,
1693.

															[ Footnote 2/60 ] Compare New York's legislation of 1685, 1695.

															[ Footnote 2/61 ]

															An Act to enforce the due observation of the Sabbath. 1 Laws of
Vermont (1808) 275.

															[ Footnote 2/62 ]

															The earliest law was that of 1610. For the Colony in Virginea
Britannia, Lawes Divine, Morall and Martially (1612), in 3 Force,
Tracts Relating to the Colonies in North America (1844), II, 10-11.
This was followed by an Act of 1623-1624. 1 Hening, Statutes of
Virginia (1823), 123. And see id. at 144.

															[ Footnote 2/63 ] See Appendix I to this opinion, post, p. 366 U. S. 549 .
The most important statutes are those of 1629 and 1705, 1 Hening,
Statutes of Virginia (1823), 144; 3 Hening, Statutes of Virginia
(1823), 358.

															[ Footnote 2/64 ]

															9 Hening, Statutes of Virginia (1821), 109, 111-112.

															[ Footnote 2/65 ] Id. at 164.

															[ Footnote 2/66 ]

															12 Hening, Statutes of Virginia (1823), 84-86.

															[ Footnote 2/67 ]

															2 Papers of Thomas Jefferson (Boyd ed.1950) 305-324, 545-553.
For the story of the Revision, see Jefferson's
Autobiography, in I Writings of Thomas Jefferson (Memorial ed.1903)
62-67; I Randall, Life of Thomas Jefferson (1858), 202-203, 208,
216 et seq. [ Footnote 2/68 ]

															2 Papers of Thomas Jefferson (Boyd ed.1950) 555. The bill was
entitled: "A Bill for Punishing Disturbers of Religious Worship and
Sabbath Breakers." It also forbade the arrest for any civil cause
of any minister of the gospel while engaged in public preaching or
performing religious worship in any church, and punished any person
who should maliciously disturb any worshipping congregation or
misuse any minister therein. There is evidence to attribute the
original draft of the provision to Jefferson, id. at
314-321; in any event, we know that, with the other revisers, he
studied and reworked every bill in the revision until it satisfied
him. Autobiography, in I Writings of Thomas Jefferson (Memorial
ed.1903) 66.

															[ Footnote 2/69 ]

															Journal of the House of Delegates, Commonwealth of Virginia,
Oct. 17, 1785 (1828), 12-14.

															[ Footnote 2/70 ]

															12 Hening, Statutes of Virginia (1823), 336. The wording of the
statute as passed differs slightly from that of the bill reported
by the revisers.

															[ Footnote 2/71 ]

															2 Shepherd, Statutes of Virginia (1835), 149.

															[ Footnote 2/72 ]

															Appendix II to this opinion, post, p. 366 U. S. 551 .
Only Alaska has no such legislation.

															[ Footnote 2/73 ] See Delaware, Iowa, Wyoming. Many States which have
broader Sunday statutes also provide special regulations for the
sale of intoxicants on Sunday. Significantly, even those who have
assailed the ban on Sunday labor as an unconstitutional religious
establishment assert the constitutionality of Sunday alcohol
control. See, e.g., Lewis, A Critical History of Sunday
Legislation (1888), ix. They point to the contemporary
justification for the prohibition of liquor sales on that day: the
greater danger of abusive use of alcohol during a time when
virtually all persons are at leisure. Admitting that there are also
cogent contemporary reasons for a Sunday labor ban, they assert
that the history of Sunday labor legislation reveals that these
legitimate reasons are not those which, in fact, underlie it. But
the roots of Sunday alcohol control are as deeply bedded in early
Sabbath anti-tippling statutes as are those of Sunday labor laws in
Lord's day acts. See the Connecticut statute set forth in
the Acts and Laws, 1750; Delaware, 1740; Maryland, 1674;
Massachusetts Bay, 1653; Massachusetts, 1761; New Hampshire, 1715;
New York, 1685. See State v. Eskridge, 31 Tenn. 413
(1852). Indeed, the most severe efforts to enforce Sunday
prohibitions in England were for centuries directed against
tippling. See Whitaker, The Eighteenth-Century English
Sunday (1940), passim; Whitaker, Sunday in Tudor and
Stuart Times (1933), passim. [ Footnote 2/74 ] See North Carolina. Many States with more comprehensive
bans also specifically proscribe hunting. See, e.g., Connecticut, Kentucky, Mississippi, Tennessee, Virginia.

															[ Footnote 2/75 ] See, e.g., Arizona, Colorado, Montana.

															[ Footnote 2/76 ]

															Oregon. Cf. Michigan, New Jersey, Pennsylvania, Rhode
Island.

															[ Footnote 2/77 ]

															Colorado, Wisconsin. Cf., e.g., Connecticut, Maine,
Michigan, Pennsylvania.

															[ Footnote 2/78 ]

															Some States have specific legislation enabling municipalities to
regulate Sunday business ( e.g., Nebraska, North Dakota),
or to suppress desecration of the Sabbath ( e.g., Michigan,
Mississippi, Rhode Island). Often such authority is written into a
city's charter. See, e.g., State v. McGee, 237 N.C. 633, 75 S.E.2d
783 (1953), app. dism'd for want of a substantial federal
question, 346 U.S. 802. In some cases charter authority to
regulate a given business or activity has been held to support
Sunday regulation of that business or activity. See, e.g.,
Hicks v. City of Dublin, 56 Ga.App. 63, 191 S.E. 659 (1937).
Where no other enabling provision is found, it is virtually
unanimously held that power to enact Sunday ordinances exists under
the general grant of police power to a municipality. E.g., In
re Sumida, 177 Cal. 388, 170 P. 823 (1918); Theisen v.
McDavid, 34 Fla. 440, 16 So. 321 (1894); Karwisch v. Mayor
of Atlanta, 44 Ga. 204 (1871); Humphrey Chevrolet, Inc. v.
City of Evanston, 7 Ill. 2d
402 , 131 N.E.2d 70 (1955); Komen v. City of St. Louis, 316 Mo. 9, 289 S.W.
838 (1926) (subsequently overruled on another point); City of
Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N.J.Super. 187, 106 A.2d 9 (1954); Ex parte Johnson, 20 Okla.Cr. 66,
201 P. 533 (1921); Mayor of Nashville v. Linck, 80 Tenn.
499 (1852); City of Seattle v. Gervasi, 144 Wash. 429, 258
P. 328 (1927); State ex rel. Smith v. Wertz, 91 W.Va. 622,
114 S.E. 242 (1922).

															[ Footnote 2/79 ]

															There have been more than seventy amendments to the
Massachusetts Sunday regulation over the past century. See the opinion below, 176 F.
Supp. 466 , 472, n. 2. The latest amendments prior to the
bringing of suit in the Gallagher case were in 1957.
Mass.Acts 1957, cc. 300, 356, §§ 16, 17, 18. By Mass.Acts 1960, c.
812, § 3, the provisions of chapter 136, Massachusetts' general
Sunday regulations, were made applicable to all or part of certain
legal holidays, e.g., January first, July fourth,
Thanksgiving Day. The Pennsylvania statute which is considered here
was enacted in 1959. Pa.Laws 1959, No. 212. And in the same year
that State's Lord's Day statute was three times amended. Pa.Laws
1959, Nos. 278, 540, 684. Maryland amended the provisions which are
now its Code, Art. 27, §§ 492 to 534A, seven times in 1959.
Maryland Laws 1959, cc. 232, 236, 248, 503, 510, 715, 811.

															[ Footnote 2/80 ] E.g., N.D.Laws 1959, c. 131; Tenn. Acts 1957, c.
219.

															[ Footnote 2/81 ] E.g., Fla.Laws 1959, c. 59-295; Me.Laws 1959, c. 302;
Okla.Laws 1959, p. 210.

															[ Footnote 2/82 ]

															Maine, Minnesota, Mississippi, North Dakota, Oklahoma, West
Virginia. Cf. Indiana, Missouri. But see Alabama,
Illinois, New Mexico, Ohio.

															Language can also be found in judicial opinions interpreting
Sunday statutes which attributes religious purpose to them. See
O'Donnell v. Sweeney, 5 Ala. 467, 469 (1843); Weldon v.
Colquitt, 62 Ga. 449, 451-452 (1879); State v.
Beaudette, 122 Me. 44, 45, 118 A. 719, 720 (1922); Pearce
v. Atwood, 13 Mass. 324, 346-348 (1816); Bennett v.
Brooks, 91 Mass. 118, 119-121 (1864); Davis v. City of
Somerville, 128 Mass. 594, 596 (1880); Commonwealth v.
White, 190 Mass. 578, 580-582, 77 N.E. 636, 637 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N.E.
835, 836-837 (1923); Allen v. Duffie, 43 Mich. 1, 7-9, 4
N.W. 427, 431-433 (1880); Brimhall v. Van Campen, 8 Minn.
13, 22 (1862); Kountz v. Price, 40 Miss. 341, 348 (1866); People v. Ruggles, 8 Johns. 290, 296-297 (N.Y.Sup.Ct.
1811); Sellers v. Dugan, 18 Ohio 489, 490, 492 (1849); Commonwealth v. American Baseball Club, 290 Pa. 136, 143,
138 A. 497, 499 (1927); Commonwealth v. Coleman, 60
Pa.Super. 380, 385-386 (1915); Parker v. State, 84 Tenn.
476, 477 479, 1 S.W. 202-203 (1886); Graham v. State, 134
Tenn. 285, 292, 183 S.W. 983, 985 (1915). And see Smith v.
Boston & Maine R. Co., 120 Mass. 490, 493 (1876); Society for the Visitation of the Sick v. Commonwealth, 52
Pa. 125, 135 (1866). Even some decisions sustaining the
constitutionality of the statutes have found their justification,
in part, in the preservation of Christian traditions. Shover v.
State, 10 Ark. 259 (1850); State v. Ambs, 20 Mo. 214
(1854); State ex rel. Temple v. Barnes, 22 N.D. 18, 132
N.W. 215 (1911); City Council v. Benjamin, 2 Strob.L. 508
(S.C. 1848). Cf. Varney v. French, 19 N.H. 233 (1848); Adams v. Gay, 19 Vt. 358, 366 (1847). But most of these
latter decisions date from an era when day of rest conceptions were
not yet fully developed: the then prevailing notions of the police
power did not accord to state legislatures authority to protect a
man from the harm to himself of uninterrupted labor. Compare
Thomasson v. State, 15 Ind. 449, 454 (1860) (speaking of the
"patriarchal theory of government") with, e.g., People v.
Klinck Packing Co., 214 N.Y. 121, 108 N.E. 278 (1915)
(sustaining New York's six-day week statute by analogy to the
Sunday law cases). The large majority of decisions applying the
Sunday laws in cases where their constitutionality as possible
infringements of religious liberty was not in issue have regarded
the laws as having either an exclusively secular function or a
function accommodating both the civil and religious needs of the
community. As to the former, see, e.g., State v. Shuster, 145 Conn. 554, 145 A.2d 196 (1958); Rogers v. State, 60
Ga.App. 722, 4 S.E.2d 918 (1939); Carr v. State, 175 Ind.
241, 93 N.E. 1071 (1911); Tinder v. Clarke Auto Co., 238
Ind. 302, 149 N.E.2d
808 (1958); City of Harlan v. Scott, 290 Ky. 585, 162
S.W.2d 8 (1942); Levering v. Park Commissioners, 134 Md.
48, 106 A. 176 (1919); State ex rel. Hoffman v. Justus, 91
Minn. 447, 98 N.W. 325 (1904); City of St. Louis v.
Delassus, 205 Mo. 578, 104 S.W. 12 (1907) (subsequently
overruled on another point); State v. Chicago, Burlington &
Quincy R. Co., 239 Mo.196, 143 S.W. 785 (1912); State v.
Malone, 238 Mo.App. 939, 192 S.W.2d 68 (1946); More v.
Clymer, 12 Mo.App. 11 (1882); Auto-Rite Supply Co. v.
Mayor of Woodbridge, 25 N.J. 188, 135
A.2d 515 (1957); Rodman v. Robinson, 134 N.C. 503, 47
S.E. 19 (1904); State v. Ricketts, 74 N.C. 187 (1876); Bloom v. Richards, 2 Ohio St. 387 (1853); McGatrick v.
Wason, 4 Ohio St. 566 (1855); Krieger v. State, 12
Okla.Cr. 566, 160 P. 36 (1916); State v. Smith, 19
Okla.Cr. 184, 198 P. 879 (1921); State v. James, 81
S.C.197, 62 S.E. 214 (1908); Francisco v. Commonwealth, 180 Va. 371, 23 S.E.2d 234 (1942); State v. Baltimore &
Ohio R. Co., 15 W.Va. 362 (1879); State ex rel. Smith v.
Wertz, 91 W.Va. 622, 114 S.E. 242 (1922), and see Stark v.
Backus, 140 Wis. 557, 123 N.W. 98 (1909). As to the latter, see Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917); State v. Hurliman, 143 Conn. 502, 123 A.2d 767 (1956); Richmond v. Moore, 107 Ill. 429 (1883); State v.
Mead, 230 Iowa 1217, 300 N.W. 523 (1941); Cleveland v.
City of Bangor, 87 Me. 259, 32 A. 892 (1895); Matter of
Rupp, 33 App.Div. 468, 53 N.Y.S. 927 (1898); People v.
Moses, 140 N.Y. 214, 35 N.E. 499 (1893); Moore v.
Owen, 58 Misc. 332, 109 N.Y.S. 585 (N.Y.Sup.Ct.1908); Melvin v. Easley, 52 N.C. 356 (1860); Johnston v.
Commonwealth, 22 Pa. 102 (1853). Cf. the cases
finding foundation for the laws in long-established usage. Commonwealth v. Louisville & Nashville R. Co., 80 Ky.
291 (1882); Mohney v. Cook, 26 Pa. 342 (1855); Commonwealth v. Nesbit, 34 Pa. 398 (1859); Commonwealth v. Jeandelle, 3 Phila. 509 (Pa.Q.S. 1859). And see People v.Law, 142 N.Y.S.2d 440 (Spec.Sess.1955); People v. Binstock, 7 Misc.2d 1039, 170 N.Y.S.2d 133
(Spec.Sess.1957).

															[ Footnote 2/83 ]

															State of New York, Second Report of the Joint Legislative
Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953) 9. See Report of the Committee on the Judiciary, on the
petition praying the repeal of the laws for the observance of the
sabbath, &c., 5 State of New York, Assembly Docs., Doc. No. 262
(1838). This latter report, denying any intention to enforce the
duties of religious conscience, id. at 7, regarded
retention of the Sunday law as advisable,

															"Viewing the sabbath merely as a civil institution, venerable
from its age, consecrated as a day of rest by the usage of our
fathers, and cherished by the common consent of mankind throughout
the nations of christendom. . . ." Id. at 5.

															"The experience of mankind has shewn that occasional rest is
necessary for the health of the laborer and for his continued
ability to toil; that"

															"the interval of relaxation which Sunday affords to the
laborious part of mankind, contributes greatly to the comfort and
satisfaction of their lives, both as it refreshes them for the
time, and as it relieves their six days' labor by the prospect of a
day of rest always approaching. . . ." Id. at 7. The Committee did regard as a third
consideration of importance the necessity of taking account of the
moral temper of the Christian majority of the community, and of
affording the laborer an opportunity to attend church if he so
wished. Id. at 6-8.

															[ Footnote 2/84 ]

															"The committee are of one mind as to the need of a weekly day of
rest for the preservation of the health and strength of the
community, and would therefor recommend legislation to secure to
all citizens the right of one clear day's rest in seven. Insofar as
possible, Sunday should be maintained as the weekly day of rest,
and whenever the needs of the community, public convenience or
demand compel labor on Sunday, persons thus employed should be
given a legal right to rest on some other day of the week."

															Report of the Joint Special Committee to Revise, Consolidate and
Arrange the General Laws . . . Relating to the Observance of the
Lord's Day, Mass.Leg.Docs., H.Doc. No. 1160 (1907) 9. For a
similar, more recent expression, see Report Submitted by
the Legislative Research Council Relative to Legal Holidays and
Their Observance, Mass.Leg.Docs., S.Doc. No. 525 (1960), 24-25.

															In the legislative debates on the bill which became the 1959
Pennsylvania Sunday retail sales act, the charge of religious
purpose was persistently made by the bill's opponents, but such a
purpose was disavowed by every speaker who favored the bill. 36
Pennsylvania Legislative Journal, 143d General Assembly (1959),
1137-1140, 2564-2565, 2682-2685. See, e.g., the remarks of
Mr. Walker, id. at 1139:

															"As I read this bill, I find nothing in it which is of a
religious nature. The bill is prompted by the thousands of letters
that we have all received in the Senate of Pennsylvania asking us
to do something for the men and women who work in the department
stores. These people are not asking to go to church; they are
asking for a day of rest."

															It is apparent even from the objections raised by the opponents
that various economic interests, among them those of organized
retailers' and labor groups, were influential in supporting the
measure. See especially id. at 2682-2683.

															[ Footnote 2/85 ]

															Jacoby, Remember the Sabbath Day? -- The Nature and Causes of
the Changes in Sunday Observance Since 1800 (Dissertation in
Sociology, Microfilm, University of Pennsylvania Library (1942)),
pp. 137-140, 147-148, 154-155, 200-202, c. 9; Kirstein, Stores and
Unions (1950), 19-21; State of New York, Second Report of the Joint
Legislative Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953) 16 et seq.; Report of the Unpaid Special Commission to
Investigate . . . the Laws Relating to the Observance of the Lord's
Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954), 6; 36 Pennsylvania
Legislative Journal, 143d General Assembly (1959), 1139, 2553. See the Sunday Business resolution of the 1959 and 1960
Conventions of the National Retail Merchants Association, 41 Stores
6-7 (Feb.1959); 42 Stores 13 (Feb.1960), and see 366
U.S. 420 fn2/40|>note 40 supra. Frequently
legislation closing establishments of a given trade is the product
of lobbying efforts by associations of traders seeking to quash the
competitive pressures which force unwanted Sunday labor. See
Gundaker Central Motors, Inc. v. Gassert, 23 N.J. 71, 127 A.2d
566 (1956), app.dism'd for want of a substantial federal
question, 354 U.S. 933; Breyer v. State, 102 Tenn.
103, 50 S.W. 769 (1899). But see Sunday Observance,
Hearings before the Subcommittee on Judiciary of the Committee on
the District of Columbia, House of Representatives, on H.R. 7189
and H.R. 10311, 69th Cong., 1st Sess. (1926) (labor and trade
groups oppose Sunday legislation supported primarily by clerical
faction). Increasingly, the religious proponents of Sunday
legislation have themselves come to couch their arguments in terms
of hygienic and social, rather than transcendental, values. See Gilfillan, The Sabbath Viewed in the Light of Reason,
Revelation, and History (Am. ed. 1862), 209-227; Floody, Scientific
Basis of Sabbath and Sunday (2d ed.1906), 311-315; McMillan,
Influence of the Weekly Rest-Day on Human Welfare (1927).

															[ Footnote 2/86 ]

															Mass.Gen.Laws Ann., 1958, c. 149, §§ 47 to 51. Section 47
provides:

															"Whoever, except at the request of the employee, requires an
employee engaged in any commercial occupation or in the work of any
industrial process not subject to the following section or in the
work of transportation or communication to do on Sunday the usual
work of his occupation, unless he is allowed during the six days
next ensuing twenty-four consecutive hours without labor, shall be
punished by a fine of not more than fifty dollars; but this and the
following section shall not be construed as allowing any work on
Sunday not otherwise authorized by law."

															Section 48 provides:

															"Every employer of labor engaged in carrying on any
manufacturing, mechanical or mercantile establishment or workshop .
. . shall allow every person . . . [with exceptions: see §§ 49, 50] employed in such manufacturing, mechanical or mercantile
establishment or workshop at least twenty-four consecutive hours of
rest, which shall include an unbroken period comprising the hours
between eight o'clock in the morning and five o'clock in the
evening, in every seven consecutive days. No employer shall operate
any such manufacturing, mechanical or mercantile establishment or
workshop on Sunday unless he has complied with section fifty-one. .
. ."

															Section 51 is:

															"Before operating on Sunday, every employer subject to section
forty-eight . . . shall post in a conspicuous place on the premises
a schedule containing a list of his employees who are required or
allowed to work on Sunday, and designating the day of rest for
each. No employee shall be required or allowed to work on the day
of rest designated for him."

															Note the evolution of these sections through Mass.Acts 1907, c.
577, codified in the Labor Code of 1909, Mass.Acts 1909, c. 514, §
52; Mass.Acts 1913, c. 619.

															[ Footnote 2/87 ] See Ill.Rev.Stat., 1959, c. 48, §§ 8a to 8g;
N.H.Rev.Stat.Ann., 1955, §§ 275.32, 275.33; N.Y.Lab.Law § 161;
Ore.Wage and Hour Comm'n Orders Nos. 8 (1959), 9 (1952), 12 (1953),
CCH Lab.Law Rep. State Laws (1960), pp. 57,561, 57,562, 57,564. Cf. West's Wis.Stat.Ann., 1957, § 103.85. And see Purdon's Pa.Stat.Ann., 1952, Tit. 43, § 361.

															[ Footnote 2/88 ]

															Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 4, § 60. See
also Me.Rev.Stat., 1954, c. 134, § 41; Sunday Entertainments
Act, 1932, 22 & 23 Geo. V, c. 51, § 1(1)(a). Cf. P.R.Laws Ann., 1955, Tit. 29, § 295.

															[ Footnote 2/89 ]

															P.R.Laws Ann., 1955, Tit. 33, § 2201. Cf. Colo.Rev.Stat.Ann., 1953, § 27-1-4; R.I.Gen.Laws, 1956, §
5-16-5.

															[ Footnote 2/90 ]

															R.I.Gen.Laws, 1956, §§ 25-1-6, 25-1-8; S.C.Code, 1952, Tit. 64,
§ 5. See also Mllis v. Celanese Corp., 234 S.C. 380, 108 S.E.2d
547 (1959).

															[ Footnote 2/91 ] See Mead, The Pattern of Leisure in Contemporary
American Culture, 313 Annals of The American Academy of Political
and Social Science 11-12 (Sept.1957).

															[ Footnote 2/92 ]

															Among the many examples that might be found in Frazer's Golden
Bough, see his discussions of incest and murder, The
Golden Bough (3d ed., A. reprint 1951), II The Magic Art 107-117;
Taboo and the Perils of the Soul 218-219. For other classic
instances in various fields, see Weston, From Ritual to
Romance (Anchor ed.1957), passim, especially 81-100;
Gilbert Murray, "Excursus on the Ritual Forms Preserved in Greek
Tragedy," in Harrison, Themis (1912), 341 et seq.; Kluckhohn and Leighton, The Navaho (1946), 162-163; Tawney,
Religion and The Rise of Capitalism (3d Mentor ed.1950), passim. See Weekly Rest in Commerce and Offices, Report A,
International Labour Conference, 26th Sess., Geneva, 1940 (1939),
2:

															"Sunday rest laws, from the Fourth Commandment downwards, have
always been social as well as religious in intention, seeking to
provide a periodic rest from daily toil as well as an opportunity
for religious observance."

															Among the weekly rest legislation of the many nations surveyed
by the International Labor Organization's pertinent reports, the
system most common is to provide for a uniform rest day, usually on
Sunday. See id., passim, especially at 71-74; Weekly Rest
in Commerce and Offices, Report VII(1), International Labour
Conference, 39th Sess., Geneva, 1956 (1955), passim, especially at 18, 24-26.

															"This tendency to ensure that the weekly rest is taken at the
same time by all workers on the day established by tradition or
custom has an obvious social purpose, namely to enable the workers
to take part in the life of the community and in the special forms
of recreation which are available on certain days." Id. at 24. Commenting on the worldwide practice of
weekly rest, the ILO reporters observe:

															"Quite often, the practice originated as a religious observance
and developed into a tradition which has persisted despite the
disappearance of the original reasons or the decline in the part
played by religious institutions in the social structure. At a very
early stage, this religious observance was backed by civil law, and
even today traces of this can often be found in constitutions and
civil codes, in municipal by laws, and in the regulations of many
countries concerning opening and closing hours of commercial and
other establishments. Labour legislation has endeavoured to
maintain and extend this practice in the light of the economic
needs of modern society. . . ." Id. at 3.

															[ Footnote 2/93 ]

															The District Court in the Gallagher case believed that
the Massachusetts Lord's day statute could not reasonably be
regarded as a day of rest provision, first, because its extensive
exceptions allowed many persons to labor seven days a week and,
second, because Massachusetts has other statutes providing for
twenty-four consecutive hours of rest every seven days.
Mass.Gen.Laws Ann., 1958, c. 149, §§ 47 to 51. These latter
provisions, however, by their express terms, supplement, do not
supplant, the Sunday prohibitions. The two objections to some
extent answer each other: the existence of the six-day law is
justified by, and in part provides for, the deficiencies of the
Lord's day statute as day of rest legislation. But, in any event,
the Lord's day statute is not merely day of rest legislation. It is
common day of rest legislation. To certain persons who, for reasons
deemed compelling by the Massachusetts Legislature, cannot share in
this common day -- simply because not all activity can cease, even
on Sunday -- the Labor Code at least assures a day of physical
rest. Compare the conclusions found in Weekly Rest in
Commerce and Offices, Report VII(1), International Labour
Conference, 39th Sess., Geneva, 1956 (1955), 52. It may be noted
that a large majority of the thirty-four States having
comprehensive Sunday restrictions also have some six-day week
provisions in their labor or child labor codes or regulations. See Appendix II to this opinion, post, p. 366 U. S.
551 .

															The District Court, in concluding that the Massachusetts Lord's
day statute is religious legislation, took account of its origins
in colonial laws, of its language and the language of the
Massachusetts courts in cases applying it, of the statutory
exceptions permitting certain recreational activity only in the
afternoon hours and, in some cases, at a designated distance from
places of worship, and of statements in an amicus brief
indicating that amici had an interest in preventing the
secularization of Sunday. The implications of history and of the
statutory language have already been discussed herein. The opinions
in the Massachusetts cases adverted to by the court below, the
latest decided in 1923, are insufficient to establish that the
Massachusetts legislation as applied in 1960 to prohibit the Sunday
operation of supermarkets lacks substantial secular purposes and
effects. See 366
U.S. 420 fn2/101|>note 101, infra. The validity of
applications of the statute possibly affected by the afternoon hour
exceptions is not now presented; suffice to say that these
exceptions do not render the legislation unconstitutional in its
entirety or in the circumstances of this litigation. And the
purposes, views and intentions of amici, of course, cannot
be attributed to the legislature of the State of Massachusetts.

															[ Footnote 2/94 ] See text at 366
U.S. 420 fn2/37|>note 37, supra. Cf. Report
of the Unpaid Special Commission to Investigate . . . the Laws
Relating to the Observance of the Lord's Day, Mass.Leg.Docs.,
H.Doc. No. 2413 (1954), 9:

															"The wave of materialism which is sweeping the country makes it
most important that one day be set aside for worship, rest and to
give all persons an opportunity to strengthen the bulwark of our
American civilization -- the home." Compare Report on the Weekly Rest Day in Industrial and
Commercial Employment, Report VII, International Labour Conference,
3d Sess., Geneva, 1921 (1921), 127:

															"Social custom requires that the same rest day should, as far as
possible, be accorded to the members of the same working family and
to the working class community as a whole."

															[ Footnote 2/95 ] See 366
U.S. 420 fn2/92|>note 92, supra. See also the resolution of the International Congress for weekly rest, 1889,
quoted in 366
U.S. 420 fn2/40|>note 40, supra. [ Footnote 2/96 ] Ex parte Newman, 9 Cal. 502. Justice Field's dissent in
this case has become a leading pronouncement on the
constitutionality of Sunday laws.

															[ Footnote 2/97 ] Ex parte Andrews, 18 Cal. 678. The controlling
California constitutional guarantee of religious freedom comports
only an analogue to the First Amendment's "free exercise," not an
analogue to the "establishment" clause.

															[ Footnote 2/98 ] E.g., Petit v. Minnesota, 177 U.
S. 164 . Cf. Hennington v. Georgia, 163 U.
S. 299 ; Soon Hing v. Crowley, 113 U.
S. 703 , 113 U. S. 710 . In re Sumida, 177 Cal. 388, 170 P. 823 (1918); McClelland v. City of Denver, 36 Colo. 486, 86 P. 126
(1906) (barbering prohibited); Rosenbaum v. City & County
of Denver, 102 Colo. 530, 81 P.2d 760 (1938) (automobile sales
prohibited); Mosko v. Dunbar, 135 Colo. 172, 309 P.2d 581 (1957) (automobile sales prohibited); Walsh v. State, 33
Del. [3 W. W. Harr.] 514, 139 A. 257 (1927), semble; Gillooley
v. Vaughan, 92 Fla. 943, 956, 110 So. 653, 657 (1926)
(cabarets and cinema prohibited); State v. Dolan, 13 Idaho
693, 92 P. 995 (1907); State v. Cranston, 59 Idaho 561, 85
P.2d 682 (1938); McPherson v. Village of Chebanse, 114
Ill. 46, 28 N.E. 454 (1885) (ordinance held authorized by police
power); Voglesong v. State, 9 Ind. 112 (1857); Foltz
v. State, 33 Ind. 215 (1870); State v. Linsig, 178
Iowa 484, 159 N.W. 995 (1916); People v. DeRose, 230 Mich.
180, 203 N.W. 95 (1925) (ordinance closing markets held authorized
by police power); In re Berman, 344 Mich. 598, 75 N.W.2d 8
(1956) (ordinance prohibiting sale of furniture held authorized by
police power); State v. Dean, 149 Minn. 410, 184 N.W. 275
(1921); Power v. Nordstrom, 150 Minn. 228, 184 N.W. 967
(1921) (ordinance closing cinema, shows, theater, held authorized
by police power); Paramount-Richards Theatres, Inc. v. City of
Hattiesburg, 210 Miss. 271, 49 So. 2d
574 (1950); State v. Loomis, 75 Mont. 88, 242 P. 344
(1925) (closing dance halls); Gundaker Central Motors, Inc. v.
Gassert, 23 N.J. 71, 127 A.2d
566 (1956), app. dism'd for want of a substantial federal
question, 354 U.S. 933 (automobile trading prohibited); People v. Havnor, 149 N.Y. 195, 43 N.E. 541 (1896), writ of error dism'd, 170 U. S. 408 (barbering prohibited); State v. Weddington, 188 N.C. 643,
125 S.E. 257 (1924) (ordinance held authorized by police power); State v. Haase, 97 Ohio App. 377, 116 N.E.2d 224 (1953); Ex parte Johnson, 20 Okla.Cr. 66, 201 P. 533 (1921)
(ordinance closing cinema and theaters held authorized by police
power); Ex parte Johnson, 77 Okla.Cr. 360, 141
P.2d 599 (1943) (barbering prohibited); Ex parte
Northrup, 41 Ore. 489, 69 P. 445 (1902) (barbering
prohibited); State v. Nicholls, 77 Ore. 415, 151 P. 473
(1915); Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899)
(barbering prohibited); State v. Sopher, 25 Utah 318, 71
P. 482 (1903); Norfolk & Western R. Co. v.
Commonwealth, 93 Va. 749, 24 S.E. 837 (1896) (statute
prohibiting operation of railroads held sustainable as exercise of
police power); State v. Nichols, 28 Wash. 628, 69 P. 372
(1902); City of Seattle v. Gervasi, 144 Wash. 429, 258 P.
328 (1927) (comprehensive ordinance found authorized by police
power). See also Kreider v. State, 103 Ark. 438, 440, 147
S.W. 449, 450 (1912); State v. Miller, 68 Conn. 373,
377-378, 36 A. 795, 796 (1896); State v. Diamond, 56 N.D.
854, 857-858, 219 N.W. 831, 832-833 (1928); Rich v.
Commonwealth, 198 Va. 445, 449, 453, 94 S.E.2d 549, 552, 555
(1956). Compare Pacesetter Homes, Inc. v. Village of South
Holland, 18 Ill. 2d
247 , 163 N.E.2d
464 (1960), admitting legislative power to prohibit Sunday
activity disturbing to the community, but striking down a blanket
closing ordinance with virtually none of the usual exceptions as
too extreme to be justified under this rationale.

															[ Footnote 2/99 ] E.g., Frolickstein v. Mayor of Mobile, 40 Ala. 725
(1867); Lane v. McFadyen, 259 Ala. 205, 66 So. 2d
83 (1953) (issue not raised by litigants; court nevertheless
considers it); Elliott v. State, 29 Ariz. 389, 242 P. 340
(1926) (dictum); Shover v. State, 10 Ark. 259 (1850); Scales v. State, 47 Ark. 476, 1 S.W. 769 (1886); Ex
parte Koser, 60 Cal. 177 (1882); Karwisch v. Mayor of
Atlanta, 44 Ga. 204 (1871), settling the issue left open in Sanders v. Johnson, 29 Ga. 526 (1859); Humphrey
Chevrolet, Inc. v. City of Evanston, 7 Ill. 2d
402 , 131 N.E.2d 70 (1955) (at least as applied to corporate and non-Sabbatarian
parties); State v. Blair, 130 Kan. 863, 288 P. 729 (1930); State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Strand Amusement Co. v. Commonwealth, 241 Ky. 48, 43
S.W.2d 321 (1931), semble; State v. Bott, 31 La.Ann. 663
(1879) (forbidding liquor sales); State ex rel. Walker v.
Judge, 39 La.Ann. 132, 1 So. 437 (1887); Judefind v.
State, 78 Md. 510, 28 A. 405 (1894) (considered dictum); Hiller v. State, 124 Md. 385, 92 A. 842 (1914)
(prohibiting sports); Commonwealth v. Has, 122 Mass. 40
(1877); Commonwealth v. Chernock, 336 Mass. 384, 145
N.E.2d 920 (1957); Scougale v. Sweet, 124 Mich. 311,
82 N.W. 1061 (1900) (considered dictum); State v. Petit, 74 Minn. 376, 77 N.W. 225 (1898), aff'd, 177 U.
S. 164 : State v. Weiss, 97 Minn. 125, 105 N.W.
1127 (1906); State v. Ambs, 20 Mo. 214 (1854); Komen
v. City of St. Louis, 316 Mo. 9, 289 S.W. 838 (1926) (closing
bakeries) (subsequently overruled on another point); In re
Caldwell, 82 Neb. 544, 118 N.W. 133 (1908), semble;
Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332
(1931) (prohibiting automobile sales), semble; Two Guys from
Harrison, Inc. v. Furman, 32 N.J.199, 160
A.2d 265 (1960); Lindemnuller v. People, 33 Barb. 548
(N.Y.Sup.Ct. 1861) (closing theaters); Newendorff v.
Duryea, 69 N.Y. 557 (1877) (same); 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; State v.
McGee, 237 N.C. 633, 75 S.E.2d
783 (1953), app. dism'd for want of a substantial federal
question, 346 U.S. 802; State ex rel. Temple v.
Barnes, 22 N.D. 18, 132 N.W. 215 (1911) (closing theaters); State v. Powell, 58 Ohio St. 324, 50 N.E. 900 (1898)
(prohibiting sports); State v. Kidd, 167 Ohio St. 521, 150
N.E.2d 413 (1958), app. dism'd for want of a substantial
federal question, 358 U. S. 131 ,
132; Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); Commonwealth
v. Bauder, 188 Pa.Super. 424, 145 A.2d 915 (1958); City
Council v. Benjamin, 2 Strob.L. 508 (S.C. 1848); Yepapas
v. Richardson, 149 S.C. 52, 146 S.E. 686 (1929); Ex parte
Sundstrom, 25 Tex.App. 133, 8 S.W. 207 (1888); Sayeg v.
State, 114 Tex.Cr.R. 153, 25 S.W.2d 865 (1930), semble;
Clark v. State, 167 Tex.Cr.R. 204, 319
S.W.2d 726 (1959), semble; Pirkey Bros. v.
Commonwealth, 134 Va. 713, 114 S.E. 764 (1922) (issue not
raised by litigants; court nevertheless considers it); Crook v.
Commonwealth, 147 Va. 593, 136 S.E. 565 (1927) (same); State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ of error dism'd, 210 U.S. 438 (prohibiting
barbering); State v. Grabinski, 33 Wash. 2d 603, 206 P.2d
1022 (1949). Following the decision in the Gallagher case
below, and relying on it, a Pennsylvania Court of Quarter Sessions
recently held the 1959 Pennsylvania Sunday retail sales act
unconstitutional on the grounds that its incidence is
discriminatory and arbitrary, and that it operates to prefer
Sunday-observing religions. Commonwealth v. Cavalerro, 142
Legal Intelligencer 519 (Phila., Apr. 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 Brunswick-Balke-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).

															[ Footnote 2/100 ]

															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 .

															[ Footnote 2/101 ]

															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 Massachusetts 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. Commissioner of Public Safety, 333 Mass. 58, 127
N.E.2d 891 (1955).

															[ Footnote 2/102 ]

															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.

															[ Footnote 2/103 ]

															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 places, etc.);
S.D.Code, 1939, § 13.1710; Vernon's Tex.Stat., 1952, 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.

															[ Footnote 2/104 ] See 101 H.L.Deb. 430 (5th ser.1935-1936); 311 H.C.Deb.
492 (5th ser.1935-1936). On this ground some state courts have even
held Sabbatarian exceptions invalid as discriminatory. City of
Shreveport v. Levy, 26 La.Ann. 671 (1874); Kislingbury v.
Treasurer of Plainfield, 10 N.J. Misc. 798, 160 A. 654 (C.P.
1932). See State v. Grabinski, 33 Wash. 2d 603, 206 P.2d
1022 (1949), reserving the question. However, in Johns v.
State, 78 Ind. 332 (1881), the exemption was sustained.

															[ Footnote 2/105 ] See Va.Code, 1960 Replacement Vol., § 18.1-359;
W.Va.Code Ann., 1955, c. 61, Art. 8, § 18 [6073]; Factories Act,
1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 91.

															[ Footnote 2/106 ]

															Both Pennsylvania and Massachusetts have fair employment
practices acts prohibiting religious discrimination in hiring.
Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 43, §§ 951 to 963;
Mass.Gen.Laws Ann., 1958, c. 151B, §§ 1 to 10.

															[ Footnote 2/107 ]

															Connecticut, Indiana, Maine, Massachusetts, Michigan, Nebraska,
Ohio, Texas, Virginia, West Virginia. Wisconsin's statute is
similar.

															[ Footnote 2/108 ]

															New York, North Dakota, Oklahoma, South Dakota, Washington.

															[ Footnote 2/109 ]

															Kansas, Kentucky, Missouri.

															[ Footnote 2/110 ]

															Rhode Island.

															[ Footnote 2/111 ]

															This New Jersey excepting statute appears to be currently
inoperative. The State's general labor ban has recently been held
impliedly repealed by the enactment of a Sunday retail sales
prohibition, Two Guys from Harrison, Inc. v. Furman, 32
N.J.199, 160 A.2d
265 (1960), and the excepting provision, by its terms, does not
extend to Sunday selling by Sabbatarians.

															[ Footnote 2/112 ] And see In re Berman, 344 Mich. 598, 75 N.W.2d 8
(1956), determining the posture under a conscientious-Sabbatarian
exception of a Sabbatarian owner of three stores who operated one
himself, closing on Saturdays and opening on Sundays, and the other
two through agents, opening Saturdays and closing Sundays.

															[ Footnote 2/113 ]

															14 Geo. VI, c. 28.

															[ Footnote 2/114 ]

															26 Geo. V & 1 Edw. VIII, c. 53.

															[ Footnote 2/115 ]

															Principally the Jewish exemption in the Hairdressers' and
Barbers' Shops (Sunday Closing) Act, 1930, 20 & 21 Geo. V, c.
35, § 3. See 101 H.L.Deb. 439, 442 (5th ser.1935-1936);
311 H. C. Deb. 502 (5th ser.1935-1936). The 1930 act was repealed
by the Shops Act, 1950, 14 Geo. VI, c. 28, Eighth Schedule,
although § 67 of the latter act continues similar provisions for
Scotland. The problem of special Sunday regulation for the Jewish
population had involved Parliament at least since the turn of the
century. Sections 47, 48 of the Factory and Workshop Act, 1901, 1
Edw. VII, c. 22, permitted Jewish employers certain exemptions from
that act's prohibition of Sunday employment of women and children.
The terms of the exemption are altered by the Factories Act, 1937,
1 Edw. VIII & 1 Geo. VI, c. 67, § 91. See also Report
from the Select Committee of the House of Lords on the Sunday
Closing (Shops) Bill [H.L.] (1905), 71-83, 142-147, 153-157.

															[ Footnote 2/116 ]

															Among these was a provision permitting any shopkeeper in London
to elect to close on Saturdays instead of Sundays. See 311
H. C. Deb. 447-461 (5th ser.1935-1936). The Jewish exemption
provisions of § 7 were the most strenuously debated provisions of
the Shops (Sunday Trading Restriction) Act. See 308
H.C.Deb. 2188-2192, 2202-2203, 2217 (5th ser.1935-1936); 101
H.L.Deb. 263, 270, 427-434 (5th ser.1935-1936); 311 H.C.Deb. 447
461, 478-507 (5th ser.1935-1936). The recognized inadequacy of the
exemption was in part responsible for the act's special provisions
(§ 8) for the London area, where the bulk of the English Jewish
trading population does business. Id. at 2087, 2090-2091,
2103-2104.

															[ Footnote 2/117 ] See the statutory form prescribed by the Shops
Regulations, 1937, S. R. & O., 1937, No. 271, Schedules IV(a)
and IV(b).

															[ Footnote 2/118 ]

															The constitution of the tribunals for Jews and for Seventh Day
Adventists ( see 366
U.S. 420 fn2/119|>note 119, infra ) and the
procedures of the tribunals are prescribed by the Shops
Regulations, 1937, S. R. & O., 1937, No. 271, Reg. 4, and the
Shops (Procedure for Jewish Tribunals) Regulations, 1937, S. R.
& O., 1937, No. 1038.

															[ Footnote 2/119 ]

															Other provisions indicate the intricate problems of
administration which the exemption raises. Section 53(3) provides
that, in the case of shops occupied by a partnership or company,
the application of the exemption is determined by the religion of
the majority of the partners or directors. Section (5) prohibits
the occupier of a shop registered for the exemption from keeping
open any other shop on Saturday, and prohibits any person who has
made a statutory declaration of conscientious objection for
purposes of registration from working in, or employing any other
person in, or being concerned in the control of, a firm which
employs any other person in, a shop open on Saturday. Compare
In re Berman, 366
U.S. 420 fn2/112|>note 112, supra. Subsection (9)
permits cancellation of the registration of any shop at the
application of the occupier, but provides that registration shall
not be cancelled within twelve months of the date upon which
application for registration was made, and subsection (10)
precludes the same occupier's again registering the shop for
exemption. Section 53(12) makes the exception provisions applicable
as well to members of any religious body regularly observing the
Jewish Sabbath as to Jews, and provides that for such persons the
function served in the case of Jews by the London Committee of
Deputies of the British Jews shall be served by "such body as
appears to the Secretary of State to represent such persons."

															[ Footnote 2/120 ] Frolickstein v. Mayor of Mobile, 40 Ala. 725 (1867); Scales v. State, 47 Ark. 476 (1886); State v.
Haining, 131 Kan. 853, 293 P. 952 (1930); Commonwealth v.
Has, 122 Mass. 40 (1877); Commonwealth v. Chernock, 336 Mass. 384, 145
N.E.2d 920 (1957); State v. Weiss, 97 Minn. 125, 105
N.W. 1127 (1906); Komen v. City of St. Louis, 316 Mo. 9,
289 S.W. 838 (1926) (subsequently overruled on another point); State v. Fass, 62 N.J.Super. 265, 162 A.2d 608 (County Ct.1960); 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; Silverberg
Bros. v. Douglass, 62 Misc. 340, 114 N.Y.S. 824 (Sup.Ct.1909); Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); City Council
v. Benjamin, 2 Strob.L. 508 (S.C. 1848); Xepapas v.
Richardson, 149 S.C. 52, 146 S.E. 686 (1929), semble;
State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ
of error dism'd, 210 U.S. 438 (prohibiting barbering). And
see State ex rel. Walker v. Judge, 39 La.Ann. 132, 141, 1 So.
437 444 (1887); cf. Ex parte Sundstrom, 25 Tex.App. 133
(1888).

															[ Footnote 2/121 ]

															Consider Mr. Loftus' comments on the proposed Shops (Sunday
Trading Restriction) Bill before the House of Commons in 1936:

															"During the last 20 years, there has been a very great change in
the habits of our people -- a change for the better. Vast masses of
our people, in fact, literally millions, go out into the
countryside on fine Sunday afternoons in the Summer, and that is
good for their health; it is good for the mind, as well as the
body, that they should do so. Going into the country . . . , they
have been accustomed to certain facilities in the way of obtaining
refreshment, fresh fruit, flowers and vegetables to bring home, and
it would be regretted, particularly by the working classes, if
there was any interference by legislation that would stop those
facilities or check the tendency of our people to go into the
country and to take advantage of the amenities of the
countryside."

															". . . The first principle is to frame such exemptions as will
not unduly interfere with the ordinary health and habits of our
people. . . ."

															308 H.C.Deb. 2159 (5th ser.1935-1936).

															[ Footnote 2/122 ] Id. at 2200-2201.

															[ Footnote 2/123 ]

															The statute 29 Charles II, c. 7, punished worldly labor of one's
ordinary calling by a forfeiture of five shillings, punished
traveling by drovers or butchers by a forfeiture of twenty
shillings, and punished the exhibition of merchandise for sale by
forfeiture of the goods. Early American colonial legislation
similarly provided greater fines for engaging in some than in other
Sunday activity. See, e.g., 1., Delaware, 1740;
Massachusetts, 1692; New Hampshire, 1700; New Jersey, 1798.

															[ Footnote 2/124 ]

															The statute 29 Charles II, c. 7, itself contained several
exceptions, and subsequent statutes added others. See notes 366
U.S. 420 fn2/15|>15, 366
U.S. 420 fn2/18|>18, supra. The original Sunday
edict of Constantine in 321 A.D. had exempted farm labor.

															[ Footnote 2/125 ]

															The statute 27 Henry VI, c. 5, had excepted "necessary victual"
from its prohibition of sales at fairs and markets; 5 & 6 Edw.
VI, c. 3, had contained a broad exception for labor at harvest or
at any other time in the year when necessity required.

															[ Footnote 2/126 ] See, e.g., Jefferson's bill quoted in text at 366
U.S. 420 fn2/68|>note 68, supra. Other laws made
specific exceptions as well: the Pennsylvania statute of 1705, for
example, exempted not only works of necessity and charity, but the
dressing of victuals in cookshops, watermen landing passengers,
butchers slaughtering and selling meat or fishermen selling fish in
the morning in summer, and the sale of milk before 9 a.m. and after
5 p.m.

															[ Footnote 2/127 ]

															Where statutes ban the keeping open of places of business as
well as laboring, the exception is frequently worded to apply only
to the latter. See Commonwealth v. Detra, 143 Mass. 28
(1886).

															[ Footnote 2/128 ] See Williams v. State, 167 Ga. 160, 144 S.E. 745 (1928)
(sale of gasoline is necessity); Jacobs v. Clark, 112 Vt.
484, 28 A.2d 369 (1942) (same is not necessity); Commonwealth
v. Louisville & Nashville R. Co., 80 Ky. 291 (1882)
(operating railroad is necessity); cf. Philadelphia, W. &
B.R. Co. v. Lehman, 56 Md. 209 (1881); Sparhawk v. Union
Passenger R. Co., 54 Pa. 401 (1867) (same is not necessity); State v. Needham, 134 Kan. 155, 4 P.2d 464 (1931)
(distribution of newspapers is necessity); Commonwealth v.
Matthews, 152 Pa. 166, 25 A. 548 (1893) (same is not
necessity); Augusta & S. R. Co. v. Renz, 55 Ga. 126
(1875) (operating streetcar is necessity); Johnston v.
Commonwealth, 22 Pa. 102 (1853) (operating bus is not
necessity); Turner v. State, 67 Ind. 595 (1879) (cutting
ripe wheat is necessity); State v. Goff, 20 Ark. 289
(1859) (same is not necessity); Wilkinson v. State, 59
Ind. 416 (1877) (hauling ripe watermelons is necessity), Commonwealth v. White, 190 Mass. 578, 77 N.E. 636 (1906)
(picking ripe cranberries is not necessity); Rich v.
Commonwealth, 198 Va. 445, 94 S.E.2d 549 (1956) (where
evidence of widespread retail sale of groceries is not rebutted,
jury cannot find that sale of groceries is not necessity); State v. James, 81 S.C.197, 62 S.E. 214 (1908) (sale of
ice and meat is not necessity); State v. Corologos, 101
Vt. 300, 143 A. 284 (1928) (sale of confectionery is not necessity
as matter of law, although jury could so find); cf. State ex
rel. Smith v. Wertz, 91 W.Va. 622, 114 S.E. 242 (1922); Thompson v. City of Atlanta, 178 Ga. 281, 172 S.E. 915
(1934), and Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388
(1917) (operation of motion picture theater is not necessity); Williams v. Commonwealth, 179 Va. 741, 750, 20 S.E.2d 493,
496 (1942) (concurring opinion) (operation of motion picture
theater is necessity); McGatrick v. Wason, 4 Ohio St. 566
(1855) (loading ship with navigation-closing weather impending is
necessity); Commonwealth v. Sampson, 97 Mass. 407 (1867)
(gathering seaweed which tide threatens to float away is not
necessity); Hennersdorf v. State, 25 Tex.App. 597, 8 S.W.
926 (1888) (manufacturing ice is necessity); State v.
McBee, 52 W.Va. 257, 43 S.E. 121 (1902) (pumping oil is not
necessity as matter of law, although jury could so find); State
v. Ohmer, 34 Mo.App. 115 (1889) (retail sale of tobacco is not
necessity); Francisco v. Commonwealth, 180 Va. 371, 23
S.E.2d 234 (1942) (jury may find retail sale of beer
necessity).

															[ Footnote 2/129 ]

															In Petit v. Minnesota, 177 U.
S. 164 , this Court sustained against a claim of
arbitrary classification a statute which, in express terms,
provided that its exception for works of necessity should not
include barbering. In other jurisdictions, the same result was
reached by judicial interpretation of the "necessity" clause. State v. Linsig, 178 Iowa 484, 159 N.W. 995 (1916); Ex
parte Kennedy, 42 Tex.Cr.R. 148, 58 S.W. 129 (1900); State
v. Sopher, 25 Utah 318, 71 P. 482 (1903). Cf. Commonwealth
v. Dextra, 143 Mass. 28, 8 N.E. 756 (1886); Stark v.
Backus, 140 Wis. 557, 123 N.W. 98 (1909). Statutes prohibiting
Sunday barbering were enacted in a number of States. These were
voided as discriminatory in Ex parte Jentzsch, 112 Cal.
468, 44 P. 803 (1896); Eden v. People, 161 Ill. 296, 43
N.E. 1108 (1896); Armstrong v. State, 170 Ind. 188, 84
N.E. 3 (1908); State v. Granneman, 132 Mo. 326, 33 S.W.
784 (1896); cf. Ragio v. State, 86 Tenn. 272, 6 S.W. 401
(1888), but have been generally sustained. McClelland v. City
of Denver, 36 Colo. 486, 86 P. 126 (1906); State v.
Murray, 104 Neb. 51, 175 N.W. 666 (1919); People v.
Bellet, 99 Mich. 151, 57 N.W. 1094 (1894); People v.
Havnor, 149 N.Y. 195, 43 N.E. 541 (1896), writ of error
dism'd, 170 U. S. 408 ; Ex parte Johnson, 77 Okla.Cr. 360, 141
P.2d 599 (1943); Ex parte Northrup, 41 Ore. 489, 69 P.
445 (1902); Breyer v. State, 102 Tenn. 103, 50 S.W. 769
(1899); State v. Bergfeldt, 41 Wash. 234, 83 P. 177
(1905), overruling City of Tacoma v. Krech, 15 Wash. 296,
46 P. 255 (1896).

															[ Footnote 2/130 ]

															One may trace in these exceptions the evolving habits of life of
the people. Compare State v. Hogreiver, 152 Ind. 652, 53
N.E. 921 (1899), sustaining a statute specifically prohibiting
Sunday baseball, with Carr v. State, 175 Ind. 241, 93 N.E.
1071 (1911), sustaining a statute excepting baseball from the
general Sunday prohibition.

															[ Footnote 2/131 ]

															The Shops Act, 1950, 14 Geo. VI, c. 28, excepts from the general
Sunday ban the keeping open of a shop to sell liquor, meal or
refreshments (whether or not for consumption on the premises, but
excluding fried fish and chips sold at a fish and chip shop), newly
cooked provisions and cooked tripe, table waters, chocolates,
sweets, sugar confectionery and ice cream, flowers, fruit and
vegetables (other than tinned), milk and cream (other than tinned),
medicines and medical and surgical appliances (by certain
registered shops), aircraft, motor or cycle supplies or
accessories, tobacco and smokers' requisites, newspapers,
periodicals and magazines, books and stationery at rail and bus
terminals and aerodromes, guide books, photographs, reproductions,
photographic films and plates and souvenirs at public or specially
approved galleries, museums, etc., passport photos, requisites for
games or sports sold on the premises where the sport is played,
fodder for horses, mules, etc. Post office and funeral business is
permitted. (§ 47 & Fifth Schedule.) Local authority may permit
the opening of shops before 10 a.m. for the sale of bread and
flour, confectionery, fish, groceries and grocer's products. (§ 48
& Sixth Schedule.) Local authority may prohibit sales of meals
and refreshments for consumption off the premises (exempted by the
Fifth Schedule) in the case of classes of shops in which sales for
on-the-premises consumption do not constitute a substantial part of
the business carried on. (§ 49.) Where the area of a local
authority is a district frequented as a holiday resort during
certain seasons of the year, the local authority may provide by
order that shops of such classes as it designates may open on
specified Sundays (not to exceed eighteen per year) for the sale of
bathing and fishing articles, photographic requisites, toys,
souvenirs and fancy goods, books, stationery, photographs,
reproductions and postcards, and food. (§ 51 & Seventh
Schedule.) Special provisions applicable to the London area permit
local councils to authorize the opening before 2 p.m. of shops
where street markets or (in some regions) shops were customarily
opened on Sunday prior to the date of the original act, 1936,
where, in the latter case, the councils find that "having regard to
the character and habits of the population in the district," Sunday
closing would cause undue hardship; but if such an exempting order
is made, it must fix some weekday closing day for these shops,
which may differ for different classes of shops. (§ 54.) In the
case of these local exempting orders, provision is made for a
plebiscite among the shopkeepers affected. (§§ 52, 54(1), par. 2.)
The act further excepts the sale and delivery of stores or
necessaries to arriving or departing ships and aircraft and of
goods to private clubs for club purposes, the cooking before 1:30
p.m. of food brought by customers to be cooked for consumption that
day, and attendance as a barber upon invalids or upon residents of
hotels or clubs therein. (§ 56.) This summary digest can scarcely
suggest the complexity of the text.

															[ Footnote 2/132 ]

															311 H.C.Deb. 465 (5th ser.1935-1936).

															[ Footnote 2/133 ] Elliott v. State, 29 Ariz. 389, 242 P. 340 (1926)
(banning enumerated businesses; court distinguishes general closing
statute with exceptions); Bocci & Sons Co. v. Town of
Lawndale, 208 Cal. 720, 284 P. 654 (1930) (exceptions for
classes of businesses); Justesen's Food Stores, Inc. v. City of
Tulare, 12 Cal. 2d
324 , 84 P.2d 140 (1938) (closing food stores; exceptions for
classes of businesses); Deese v. City of
Lodi, 21 Cal. App. 2d
631 , 69 P.2d 1005 (1937) (exceptions for classes of
businesses); Allen v. City of Colorado Springs, 101 Colo.
498, 75 P.2d 141 (1937) (exceptions for classes of businesses and
commodities); Henderson v. Antonacci, 62 So. 2d
5 (Fla.1952) (exceptions for classes of businesses and
commodities); Kelly v. Blackburn, 95 So. 2d
260 (Fla.1957) (exceptions for newspapers and cinema); City
of Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E.2d 52 (1938)
(exceptions for classes of businesses); Auto-Rite Supply Co. v.
Mayor of Woodbridge, 41 N.J.Super. 303, 124 A.2d 612 (1956), aff'd on other grounds, 25 N.J.
188, 135 A.2d
515 (1957) (banning sale of enumerated classes of commodities); Chan Sing v. Astoria, 79 Ore. 411, 155 P. 378 (1916)
(closing shops selling enumerated classes of commodities); Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939 (1943)
(exceptions for classes of businesses, some restricted to sale of
specified commodities); Gronlund v. Salt Lake City, 113
Utah 284, 194 P.2d 464 (1948) (sales ban with exceptions for
classes of commodities; court distinguishes statutory scheme
banning all labor and sales with exceptions). Cf. State v.
Trahan, 214 La. 100, 36 So. 2d 652 (1948), and Arrigo v.
City of Lincoln, 154 Neb. 537, 48 N.W.2d 643 (1951) (exceptions for classes of businesses), holding
unconstitutional Sunday statutes in particular applications deemed
discriminatory.

															[ Footnote 2/134 ] City of Denver v. Bach, 26 Colo. 530, 58 P. 1089 (1899)
(closing classes of businesses); City of Springfield v.
Smith, 322 Mo. 1129, 19 S.W.2d 1 (1929) (banning enumerated
entertainments); Ex parte Ferguson, 62 Okla.Cr. 145, 70 P.2d
1094 (1937) (banning sale of enumerated commodities)
(alternative holding); Ex parte Hodges, 65 Okla.Cr. 69, 83 P.2d
201 (1938) (exceptions for classes of businesses) (alternative
holding). Cf. McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d
815 (1953) (automobile sales), disapproving City of St.
Louis v. Delassus, 205 Mo. 578, 104 S.W. 12 (1907), and Komen v. City of St. Louis, 316 Mo. 9, 289 S. W, 838
(1926).

															[ Footnote 2/135 ] Lane v. McFadyen, 259 Ala. 205, 66 So.
2d 83 (1953) (banning merchandising with exceptions for classes
of businesses); Taylor v. City of Pine Bluff, 226 Ark.
309, 289 S.W.2d 679 (1956) (ordinance applied only to single class of business); Hickinbotham v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1956) (banning enumerated businesses); Ex parte Koser, 60
Cal. 177 (1882) (exceptions for classes of businesses); In re
Sumida, 177 Cal. 388, 170 P. 823 (1918) (exceptions for
classes of businesses); State v. Hurliman, 143 Conn. 502,
123 A.2d 767 (1956) (exceptions for classes of services, activities
and commodities, the latter to be sold by persons who sell them on
weekdays); State v. Shuster, 145 Conn. 554, 145 A.2d 196
(1958) (same); Theisen v. McDavid, 34 Fla. 440, 16 So. 321
(1894) (excepting sales of classes of commodities); State v.
Dolan, 13 Idaho 693, 92 P. 995 (1907) (exceptions for classes
of services and commodities); State v. Cranston, 59 Idaho
561, 85 P.2d 682 (1938) (exceptions for classes of businesses,
services and commodities); Humphrey Chevrolet, Inc. v. City of
Evanston, 7 Ill. 2d
402 , 131 N.E.2d 70 (1955) (exceptions for classes of commodities); Ness v.
Supervisors of Elections, 162 Md. 529, 160 A. 8 (1932)
(unspecified); People v. DeRose, 230 Mich. 180, 203 N.W.
95 (1925) (banning classes of businesses and sales of classes of
commodities); People v. Krotkiewicz, 286 Mich. 644, 82
N.W. 852 (1938) (banning sales of classes of commodities); People's Appliance, Inc. v. City of Flint, 358 Mich. 34, 99 N.W.2d
522 (1959) (banning businesses selling classes of commodities); State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N.W. 325
(1904) (exceptions for classes of commodities); Liberman v.
State, 26 Neb. 464, 42 N.W. 419 (1889) (exceptions for classes
of businesses and commodities); In re Caldwell, 82 Neb.
544, 118 N.W. 133 (1908) ("common" labor banned); State v.
Somberg, 113 Neb. 761, 204 N.W. 788 (1925) (banning classes of
businesses and sales of classes of commodities); City of
Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N.J.Super. 187, 106 A.2d 9 (1954) (banning businesses selling classes of
commodities); Masters-Jersey, Inc. v. Mayor of Paramus, 32
N.J. 296, 160 A.2d
841 (1960) (exceptions for classes of commodities); Richman
v. Board of Comm'rs, 122 N.J.L. 180, 4 A.2d 501 (1939)
(banning businesses selling a class of commodities, semble); 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 (exceptions for
classes of businesses, commodities, other activities); State v.
Medlin, 170 N.C. 682, 86 S.E. 597 (1915) (exception for a
class of business, restricted to sale of specified classes of
commodities); State v. Trantham, 230 N.C. 641, 55 S.E.2d
198 (1949) (exceptions for classes of commodities to be sold by
classes of businesses); State v. McGee, 237 N.C. 633, 75 S.E.2d
783 (1953), app. dism'd for want of a substantial federal
question, 346 U.S. 802 (exceptions for classes of businesses,
commodities, other activities); State v. Towery, 239 N.C.
274, 79 S.E.2d
513 (1954), app. dism'd for want of a substantial federal
question, 347 U.S. 925 (exceptions for classes of businesses,
some restricted to sales of specified classes of commodities); State v. Diamond, 56 N.D. 854, 219 N.W. 831 (1928)
(exceptions for classes of commodities); State v. Haase, 97 Ohio App. 377, 116 N.E.2d 224 (1953) (exceptions for classes of
recreational activities); State v. Kidd, 167 Ohio St. 521,
150 N.E.2d 413 (1958), app. dism'd for want of a substantial
federal question, 358 U. S. 132 (exceptions for classes of recreational activities); Commonwealth v. Bauder, 188 Pa.Super. 424, 145 A.2d 915
(1958) (exceptions for classes of recreational activities); Bothwell v. York City, 291 Pa. 363, 140 A. 130 (1927)
(banning classes of recreational activities); Mayor of
Nashville v. Linck, 80 Tenn. 499 (1883) (exceptions for sales
of classes of commodities by classes of businesses); Kirk v.
Olgiati, 203 Tenn. 1, 308
S.W.2d 471 (1957) (banning classes of businesses); Ex parte
Sundstrom, 25 Tex.App. 133, 8 S.W. 207 (1888) (exceptions for
classes of commodities); Searcy v. State, 40 Tex.Cr.R.
460, 51 S.W. 1119 (1899) (exceptions for classes of commodities); Sayeg v. State, 114 Tex.Cr.R. 153, 25 S.W.2d 865 (1930)
(exceptions for classes of commodities); City of Seattle v.
Gervasi, 144 Wash. 429, 258 P. 328 (1927) (exceptions for
classes of commodities); State v. Grabinski, 33 Wash. 2d
603, 206 P.2d 1022 (1949) (exceptions for classes of commodities). See also Rosenbaum v. City & County of Denver, 102
Colo. 530, 81 P.2d 760 (1938) (banning automobile trading); Moskco v. Dunbar, 135 Colo. 172, 309 P.2d
581 (1957) (banning automobile trading); Gillooley v.
Vaughan, 92 Fla. 943, 110 So. 653 (1926) (banning classes of
amusements); Stewart Motor Co. v. City of Omaha, 120 Neb.
776, 235 N.W. 332 (1931) (banning automobile trading); ABC
Liquidators, Inc. v. Kansas City, 322 S.W.2d
876 (Mo.1959) (banning auctions); State v. Loomis, 75
Mont. 88, 242 P. 344 (1925) (banning, e.g., classes of
dance halls); Gundaker Central Motors, Inc. v. Gassert, 23
N.J. 71, 127 A.2d
566 (1956), app. dism'd for want of a substantial federal
question, 354 U.S. 933 (banning automobile trading); Ex
parte Johnson, 20 Okla.Cr. 66, 201 P. 533 (1921) (banning
cinema and theaters); Consolidated Enterprises, Inc. v.
State, 150 Tenn. 148, 263 S.W. 74 (1924) (banning cinema and
theaters). Statutory provisions whose effect was to punish some
Sunday activities more severely than others have been sustained. State v. Hogreiver, 152 Ind. 652, 53 N.E. 921 (1899); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N.E.2d
808 (1958); State v. Murray, 104 Neb. 51, 175 N.W. 666
(1919); Commonwealth v. Grochowiak, 184 Pa.Super. 522, 136
A.2d 145 (1957), app. dism'd for want of a substantial federal
question, 358 U. S. 47 ; Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899). Cf. Sherman v. Mayor of Paterson, 82 N.J.L. 345, 82 A. 889
(1912). For cases sustaining state statutes applicable in some, but
not all, localities, see People v. Havnor, 149 N.Y. 195,
43 N.E. 541 (1896); Bohl v. State, 3 Tex.App. 683 (1878), and compare Sarner v. Township of Union, 55 N.J.Super.
523, 151 A.2d 208 (1959), with Two Guys from Harrison, Inc. v.
Furman, 32 N.J.199, 160 A.2d
265 (1960).

															[ Footnote 2/136 ] See 366
U.S. 420 fn2/131|>note 131, supra; Appendix II to
this opinion, post, p. 366 U. S. 551 ;
Weekly Rest in Commerce and Offices, Report VII(1), International
Labour Conference, 39th Sess., Geneva, 1956 (1955), 27-52; Weekly
Rest in Commerce and Offices, Report A, International Labour
Conference, 26th Sess., Geneva, 1940 (1939), 82-127.

															[ Footnote 2/137 ]

															It is unclear whether the exception here assailed permits the
sale of merchandise essential to, or customarily sold at, bathing
beaches, bathhouses, etc., only at those enumerated places or by
all retailers within the county. Since the Maryland Court of
Appeals left this question of construction open below, I assume the
interpretation most favorable to appellants' claim.

															[ Footnote 2/138 ]

															Many of the jurisdictions which have Sunday laws provide some
form of local option procedure for the creation of exceptions. This
is only to recognize the obvious fact that conditions of limited
geographical range may be determinative in striking the balance of
forbidden and permissible Sunday activity which best accords with
popular habits and desires. In Maryland, the State Legislature
itself does the job of adapting the general statewide law to local
circumstances. This difference in method can scarcely entail
different federal constitutional consequences.

															[ Footnote 2/139 ] See Eldorado Ice Cream Co. v. Clark, [1938] 1 K.B. 715,
holding the sale of ice cream from a box tricycle without the
prohibition of the Shops (Sunday Trading Restriction) Act.

															[ Footnote 2/140 ]

															Consider the alternative suggested by the ordinance sustained in In re Sumida, 177 Cal. 388, 170 P. 823 (1918), requiring
that, where an establishment housing both permitted and prohibited
businesses remains open on Sunday for transaction of the former, a
five-foot-high permanent partition or screen must be erected to
separate the two business areas.

															[ Footnote 2/141 ] See Friedeborn v. Commonwealth, 113 Pa. 242, 6 A. 160
(1886).

															[ Footnote 2/142 ] See 36 Pennsylvania Legislative Journal, 143d General
Assembly (1959), 1139.

															[ Footnote 2/143 ] See id. at 1142-1143, 2568.

															| 366
U.S. 420 app1| APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER PRINCIPAL COLONIAL SUNDAY STATUTES AND THEIR CONTINUATION UNTIL THE END OF THE EIGHTEENTH CENTURY CONNECTICUT: New Haven Colony: 1656: Prophanation of the Lord's Day, New Haven's Settling in
New England. And Some Laws for Government (1656), reprinted in
Hinman, The Blue Laws (1838), 132, 206. See also Prince, An Examination of Peters' "Blue Laws,"
H.R.Doc. No. 295, 55th Cong., 3d Sess. 95, 109, 113-114,
123-125. Connecticut Colony: 1668: 2 Public Records of the Colony of Connecticut, 1665-1678
(1852), 88 (traveling, playing).

															1672: Prophanation of the Sabbath, Laws of Connecticut, 1673
(Brinley reprint 1865) 58.

															1676: 2 Public Records of the Colony of Connecticut, 1665-1678
(1852) 280. Page 366 U. S. 544 See An Act for the due Observation, and keeping the
Sabbath, or Lord's Day, and for Preventing, and Punishing
Disorders, and Prophaneness on the same, Acts and Laws of His
Majesty's English Colony of Connecticut in New-England (1750), 139;
An Act for the due Observation of the Sabbath or Lord's-Day, Acts
and Laws of the State of Connecticut (1784), 213; An Act for the
due Observation of the Sabbath or Lord's-Day, Acts and Laws of the
State of Connecticut (1796), 368. DELAWARE: 1740: An Act to prevent the Breach of the Lord's Day commonly
called Sunday, Laws of the Government of New-Castle, Kent and
Sussex Upon Delaware (1741) 121.

															1795: An Act more effectually to prevent the profanation of the
Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700-1797
(1797) 1209. GEORGIA: 1762: An Act For preventing and punishing Vice, Profaneness, and
Immorality, and for keeping holy the Lord's Day, commonly called
Sunday, Acts Passed by the General Assembly of Georgia, 1761-1762
(ca. 1763) 10. See Marbury and Crawford, Digest of the Laws of
Georgia, 1755-1800 (1802) 410. MARYLAND: 1649: An Act concerning Religion, 1 Archives of Maryland
(Proceedings and Acts of the General Assembly), 1637/8-1664 (1883)
244.

															1654: Concerning the Sabbath Day, id. at 343.

															1674: An Act against the Prophaning of the Sabbath day, 2
Archives of Maryland (Proceedings and Acts of Page 366 U. S. 545 the General Assembly), 1666-1676 (1884) 414 (innkeepers).

															1692: An Act for the Service of Almighty God and the
Establishment of the Protestant Religion within this Province, 13
Archives of Maryland (Proceedings and Acts of the General
Assembly), 1684-1692 (1894) 425.

															1696: An Act for Sanctifying & keeping holy the Lord's Day
Commonly called Sunday, 19 Archives of Maryland (Proceedings and
Acts of the General Assembly), 1693-1697 (1899) 418.

															1723: An Act to punish Blasphemers, Swearers, Drunkards, and
Sabbath-Breakers . . . , Bacon, Laws of Maryland (1765) Sf2. See 1 Dorsey, General Public Statutory Law of Maryland,
1692-1839 (1840) 65.

															MASSACHUSETTS: Plymouth Colony: 1650: Prophanacon the Lord's Day, Compact with the Charter and
Laws of the Colony of New Plymouth (1836) 92.

															1658: Id. at 113 (traveling).

															1671: General Laws of New Plimouth, c. III, §§ 9, 10 (1672), in id. at 247. Massachusetts Bay Colony: 1653: Sabbath, Colonial Laws of Massachusetts (reprinted from
the edition of 1672 with the supplements through 1686) (1887) 132
(traveling, sporting, drinking).

															1668: For the better Prevention of the Breach of the Sabbath, id. at 134.

															1692: An Act for the better Observation and Keeping the Lord's
Day, Acts and Laws of His Majesty's Province Page 366 U. S. 546 of the Massachusetts-Bay in New-England, in Charter of the
Province of the Massachusetts-Bay in New-England (1759
[ sic ]) 13.

															1761: An Act for Repealing the several Laws now in Force which
relate to the Observation of the Lord's-Day, and for making more
effectual Provision for the due Observation thereof, id. at 392.

															1782: An Act for Making More Effectual Provision for the Due
Observation of the Lord's Day . . . , Acts and Laws of
Massachusetts, 1782 (reprinted 1890) 63.

															1792: An Act providing for the due Observation of the Lord's
Day, 2 Laws of Massachusetts, 1780-1800 (1801) 536. See also the act of 1629 set forth in Blakely, American
State Papers on Freedom in Religion (4th rev. ed.1949), at
29-30.

															NEW HAMPSHIRE:

															1700: An Act for the better Observation and Keeping the Lords
Day, Acts and Laws Passed by the General Court of His Majesties
Province of New-Hampshire in New-England, 1726 (reprinted 1886)
7.

															1715: An Act for the Inspecting, and Suppressing of Disorders in
Licensed Houses, id. at 57 (innkeepers).

															1785: An Act for the Better Observation and Keeping the Lords
Day, 5 Laws of New Hampshire (First Constitutional Period),
1784-1792 (1916) 75.

															1789: An Act for the better Observation of the Lord's day . . .
, id. at 372.

															1799: An Act for the better observation of the Lords day . . . ,
6 Laws of New Hampshire (Second Constitutional Period), 1792-1801
(1917) 592. Page 366 U. S. 547 NEW JERSEY:

															1675: Leaming and Spicer, Grants, Concessions and Original
Constitutions of the Province of New-Jersey with the Acts Passed
during the Proprietary Governments (ca. 1752) 98.

															1683: Against prophaning the Lord's Day, id. at
245.

															1693: An Act for preventing Profanation of the Lords Day, id. at 519.

															1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of
the General Assembly of the Province of New Jersey, 1703-1752
(1752) 3.

															1790: An Act to promote the Interest of Religion and Morality,
and for suppressing of Vice . . . , Acts of the Fourteenth General
Assembly of the State of New Jersey, c. 311 (1790) 619.

															1798: An Act for suppressing vice and immorality, Laws of New
Jersey, Revised and Published under the Authority of the
Legislature (1800) 329.

															NEW YORK:

															1685: A Bill against Sabbath breaking, 1 Colonial Laws of New
York, 1664-1775 (1894) 173.

															1695: An Act against profanation of the Lords Day, called
Sunday, id. at 356.

															1788: An Act for suppressing immorality, Laws of New York,
1785-1788 (1886) 679.

															NORTH CAROLINA:

															1741: An Act for the better observation and keeping of the
Lord's day, commonly called Sunday, and for the more effectual
suppression of vice and immorality, 1 Laws of North Carolina
(1821), 142. Page 366 U. S. 548 PENNSYLVANIA:

															1682: The Great Law or The Body of Laws, in Charter and Laws of
the Province of Pennsylvania, 1682-1700 (with the Duke of Yorke's
Book of Laws, 1676-1682) (1879) 107.

															1690: The Law Concerning Liberty of Conscience (A Petition of
Right, First Law), id. at 192.

															1700: The Law Concerning Liberty of Conscience, 2 Statutes at
Large of Pennsylvania (1896) 3.

															1705: An Act to Restrain People from Labor on the First Day of
the Week, id. at 175.

															1779: An Act for the Suppression of Vice and Immorality, 9
Statutes at Large of Pennsylvania (1903) 333.

															1786: An Act for the Prevention of Vice and Immorality . . 12
Statutes at Large of Pennsylvania (1906) 313.

															1794: An Act for the Prevention of Vice and Immorality . . . ,
15 Statutes at Large of Pennsylvania (1911) 110.

															RHODE ISLAND:

															1673: 2 Records of the Colony of Rhode Island and Providence
Plantations, 1664-1677 (1857) 503 (alcoholic beverages).

															1679: 3 Records of the Colony of Rhode Island and Providence
Plantations, 1678-1706 (1858) 30 (employing servants).

															1679: An Act Prohibiting Sports and Labours on the First Day of
the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island
and Providence-Plantations (1730) 27. Page 366 U. S. 549 1784: Rhode Island Acts and Resolves, Aug. 1784 (1784) 9
(excepting members of Sabbatarian societies; but exception does not
extend to opening shops, to mechanical work in compact places,
etc.).

															1798: An Act prohibiting Sports and Labour on the first Day of
the Week, Public Laws of Rhode-Island and Providence Plantations
(1798) 577.

															SOUTH CAROLINA:

															1692: An Act for the better Observance of the Lord's Day,
commonly called Sunday, 2 Statutes at Large of South Carolina
(1837) 74.

															1712: An Act for the better observation of the Lord's Day,
commonly called Sunday, id. at 396. See Grimke, Public Laws of South-Carolina (1790)
19.

															VIRGINIA:

															1610: For the Colony in Virginea Britannia, Lawes Divine, Morall
and Martially (1612), in 3 Force, Tracts Relating to the Colonies
in North America (1844) II, 10 (gaming).

															1629: 1 Hening, Statutes of Virginia (1823) 144.

															1642-1643: Id. at 261 (traveling, shooting).

															1657: The Sabbath to bee kept holy, id. at 434
(traveling, shooting, lading).

															1661-1662: Sundays not to bee profaned, 2 Hening, Statutes of
Virginia (1823) 48.

															1691: An act for the more effectual suppressing the severall
sins and offences of swaring, cursing, profaineing Gods holy name,
Sabbath abuseing, drunkenness, fornication, and adultery, 3 Hening,
Statutes of Virginia (1823) 71. Page 366 U. S. 550 1705: An act for the effectual suppression of vice, and
restraint and punishment of blasphemous, wicked, and dissolute
persons, id. at 358.

															1786: An act for punishing disturbers of Religious Worship and
Sabbath breakers, 12 Hening, Statutes of Virginia (1823) 336.

															In some of the Colonies the English Sunday laws were also in
effect. See, e.g., Martin, Collection of the Statutes of
England in Force in North-Carolina (1792) 379. Page 366 U. S. 551 | 366
U.S. 420 app2| APPENDIX II TO OPINION OF MR. JUSTICE FRANKFURTER ANALYSIS OF IMPORTANT STATE SUNDAY STATUTES CURRENTLY IN FORCE This Appendix sets forth the important state legislative
provisions currently in force prohibiting or regulating private
activity on Sunday. In reducing these often complex laws to tabular
form, a certain simplification has been required. Provisions in
different States which are found in a single category, e.g., "Trade in Alcoholic Beverages," or "Racing," may
differ considerably in detail. This Appendix does not include
references to: (1) provisions declaring Sunday a holiday or
non-business day; (2) provisions closing the courts on Sunday or
prohibiting the service of judicial process on that day; (3)
provisions giving various government employees Sunday off or
excepting Sunday from the days of labor for state prisoners; (4)
penalty sections where Sunday laws are parts of general regulatory
codes, e.g., fish and game laws; (5) jurisdictional
provisions or provisions authorizing arrest and detention on Sunday
of offenders against the various Sunday laws, unless these are of
special interest, and (6) definition provisions, statutes of
limitation of prosecution, and similar ancillary provisions. Page 366 U. S. 552 [Refer to vol. 366 U.S., pp. 552-560 for an extensive statutory
tabulation not presently suitable for electronic presentation.] Page 366 U. S. 561 MR. JUSTICE DOUGLAS, dissenting.*

															The question is not whether one day out of seven can be imposed
by a State as a day of rest. The question is not whether Sunday
can, by force of custom and habit, be retained as a day of rest.
The question is whether a State can impose criminal sanctions on
those who, unlike the Christian majority that makes up our society,
worship on a different day or do not share the religious scruples
of the majority.

															If the "free exercise" of religion were subject to reasonable
regulations, as it is under some constitutions, or if all laws
"respecting the establishment of religion" were not proscribed, I
could understand how rational men, representing a predominantly
Christian civilization, might think these Sunday laws did not
unreasonably interfere with anyone's free exercise of religion and
took no step toward a burdensome establishment of any religion.

															But that is not the premise from which we start, as there is
agreement that the fact that a State, and not the Federal
Government, has promulgated these Sunday laws does not change the
scope of the power asserted. For the classic view is that the First
Amendment should be applied to the States with the same firmness as
it is enforced against the Federal Government. See Lovell v.
Griffin, 303 U. S. 444 , 303 U. S. 450 ; Minersville District v. Gobitis, 310 U.
S. 586 , 310 U. S. 593 ; Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 ; Board of Education v. Barnette, 319 U.
S. 624 , 319 U. S. 639 ; Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 321 ; Talley v. Page 366 U. S. 562 California, 362 U. S. 60 . The
most explicit statement perhaps was in Board of Education v.
Barnette, supra, 366 U. S.
639 .

															"In weighing arguments of the parties, it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its own
sake. The test of legislation which collides with the Fourteenth
Amendment because it also collides with the principles of the First
is much more definite than the test when only the Fourteenth is
involved. Much of the vagueness of the due process clause
disappears when the specific prohibitions of the First become its
standard. The right of a State to regulate, for example, a public
utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a
legislature may have a 'rational basis' for adopting. But freedoms
of speech and of press, of assembly, and of worship, may not be
infringed on such slender grounds. They are susceptible of
restriction only to prevent grave and immediate danger to interests
which the State may lawfully protect. It is important to note that,
while it is the Fourteenth Amendment which bears directly upon the
State, it is the more specific limiting principles of the First
Amendment that finally govern this case."

															With that as my starting point, I do not see how a State can
make protesting citizens refrain from doing innocent acts on Sunday
because the doing of those acts offends sentiments of their
Christian neighbors.

															The institutions of our society are founded on the belief that
there is an authority higher than the authority of the State; that
there is a moral law which the State is powerless to alter; that
the individual possesses rights, conferred by the Creator, which
government must respect. Page 366 U. S. 563 The Declaration of Independence stated the now familiar
theme:

															"We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness."

															And the body of the Constitution, as well as the Bill of Rights,
enshrined those principles.

															The Puritan influence helped shape our constitutional law and
our common law; as Dean Pound has said: The Puritan "put individual
conscience and individual judgment in the first place." The Spirit
of the Common Law (1921), p. 42. For these reasons, we stated in Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 ,
"We are a religious people whose institutions presuppose a Supreme
Being."

															But those who who fashioned the First Amendment decided that, if
and when God is to be served, His service will not be motivated by
coercive measures of government. "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof" -- such is the command of the First Amendment
made applicable to the State by reason of the Due Process Clause of
the Fourteenth. This means, as I understand it, that, if a
religious leaven is to be worked into the affairs of our people, it
is to be done by individuals and groups, not by the Government.
This necessarily means, first, that the dogma, creed,
scruples, or practices of no religious group or sect are to be
preferred over those of any others; second, that no one
shall be interfered with by government for practicing the religion
of his choice; third, that the State may not require
anyone to practice a religion, or even any religion, and fourth, that the State cannot compel one so to conduct
himself as not to offend the religious scruples of another. The
idea, as I understand it, was to limit the power of government to
act in religious matters ( Board of Page 366 U. S. 564 Education v. Barnette, supra; McCollum v. Board of
Education, 333 U. S. 203 ),
not to limit the freedom of religious men to act religiously nor to
restrict the freedom of atheists or agnostics.

															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
produce Catholics, Jews, or Protestants, or 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, government must be neutral. This freedom
plainly includes freedom from religion, with the right to
believe, speak, write, publish and advocate anti-religious
programs. Board of Education v. Barnette, supra, 319 U. S. 641 .
Certainly the "free exercise" clause does not require that everyone
embrace the theology of some church or of some faith, or observe
the religious practices of any majority or minority sect. The First
Amendment, by its "establishment" clause, prevents, of course, the
selection by government of an "official" church. Yet the ban
plainly extends farther than that. We said in Everson v. Board
of Education, 330 U. S. 1 , 330 U. S. 16 ,
that it would be an "establishment" of a religion if the Government
financed one church or several churches. For what better way to
"establish" an institution than to find the fund that will support
it? The "establishment" clause protects citizens also against any
law which selects any religious custom, practice, or ritual, puts
the force of government behind it, and fines, imprisons, or
otherwise penalizes a person for not observing it. The Government
plainly could not join forces with one religious group and decree a
universal and symbolic circumcision. Nor could it require all
children to be baptized or give tax exemptions only to those whose
children were baptized.

															Could it require a fast from sunrise to sunset throughout the
Moslem month of Ramadan? I should think not. Page 366 U. S. 565 Yet why then can it make criminal the doing of other acts, as
innocent as eating, during the day that Christians revere?

															Sunday is a word heavily overlaid with connotations and
traditions deriving from the Christian roots of our civilization
that color all judgments concerning it. This is what the
philosophers call "word magic."

															"For most judges, for most lawyers, for most human beings, we
are as unconscious of our value patterns as we are of the oxygen
that we breathe."

															Cohen, Legal Conscience (1960), p. 169.

															The issue of these cases would therefore be in better focus if
we imagined that a state legislature, controlled by orthodox Jews
and Seventh-Day Adventists, passed a law making it a crime to keep
a shop open on Saturdays. Would a Baptist, Catholic, Methodist, or
Presbyterian be compelled to obey that law or go to jail or pay a
fine? Or 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?

															Dr. John Cogley recently summed up [ Footnote 3/1 ] the dominance of the three-religion
influence in our affairs:

															"For the foreseeable future, it seems, the United States is
going to be a three-religion nation. At the present time, all three
are characteristically 'American,' Page 366 U. S. 566 some think flavorlessly so. For religion in America is almost
uniformly 'respectable,' bourgeois, and prosperous. In the
Protestant world, the 'church' mentality has triumphed over the
more venturesome spirit of the 'sect.' In the Catholic world, the
mystical is muted in favor of booming organization and efficiently
administered good works. And in the Jewish world the prophet is too
frequently without honor, while the synagogue emphasis is focused
on suburban togetherness. There are exceptions to these rules, of
course; each of the religious communities continues to cast up its
prophets, its rebels and radicals. But a Jeremiah, one fears, would
be positively embarrassing to the present position of the Jews; a
Francis of Assisi upsetting the complacency of American Catholics
would be rudely dismissed as a fanatic, and a Kierkegaard, speaking
with an American accent, would be considerably less welcome than
Norman Vincent Peale in most Protestant pulpits."

															This religious influence has extended far, far back of the First
and Fourteenth Amendments. Every Sunday School student knows the
Fourth Commandment:

															"Remember the sabbath day, to keep it holy."

															"Six days shalt thou labour, and do all thy work:"

															"But the seventh day is the sabbath of the LORD thy God: in it
thou shalt not do any work, nor thy son, nor thy daughter, thy
manservant, nor thy Page 366 U. S. 567 maidservant, nor thy cattle, nor thy stranger that is within thy
gates:"

															"For in six days the LORD made heaven and earth, the sea, and
all that, in them is, and rested the seventh day: wherefore the
LORD blessed the sabbath day, and hallowed it."

															Exodus 20:8-11.

															This religious mandate for observance of the Seventh Day became,
under Emperor Constantine, a mandate for observance of the First
Day "in conformity with the practice of the Christian Church." See Richardson v.
Goddard , 23 How. 28, 64 U. S. 41 . This
religious mandate has had a checkered history, but in general its
command, enforced now by the ecclesiastical authorities, now by the
civil authorities, and now by both, has held good down through the
centuries. [ Footnote 3/2 ] The
general pattern of these laws in the United States was set in the
eighteenth century, and derives most directly from a seventeenth
century English statute. 29 Charles II, c. 7. Judicial comment on
the Page 366 U. S. 568 Sunday laws has always been a mixed bag. Some judges have
asserted that the statutes have a "purely" civil aim, i.e., limitation of work time and provision for a common
and universal leisure. But other judges have recognized the
religious significance of Sunday and that the laws existed to
enforce the maintenance of that significance. In general, both
threads of argument have continued to interweave in the case law on
the subject. Prior to the time when the First Amendment was held
applicable to the States by reason of the Due Process Clause of the
Fourteenth, the Court at least by obiter dictum approved
State Sunday laws on three occasions: Soon Hing v.
Crowley, 113 U. S. 703 , in
1885; Hennington v. Georgia, 163 U.
S. 299 , in 1896; Petit v. Minnesota, 177 U. S. 164 , in
1900. And in Friedman v. New York, 341 U.S. 907, the
Court, by a divided vote, dismissed [ Footnote 3/3 ] "for want of a substantial federal
question" an appeal from a New York decision upholding the validity
of a Sunday law against an attack based on the First Amendment.

															The Soon Hing, Hennington, and Petit cases all
rested on the police power of the State -- the right to safeguard
the health of the people by requiring the cessation of normal
activities one day out of seven. The Court in the Soon
Hing case rejected the idea that Sunday laws rested on the
power of government "to legislate for the promotion of religious
observances." 113 U.S. at 113 U. S. 710 .
The New York Court of Appeals in the Friedman case
followed the reasoning of the earlier cases, [ Footnote 3/4 ] 302 N.Y.
75 , 80, 96 N.E.2d 184, 186. Page 366 U. S. 569 The Massachusetts Sunday law involved in one of these appeals
was once characterized by the Massachusetts court as merely a civil
regulation providing for a "fixed period of rest." Commonwealth
v. Has, 122 Mass. 40, 42. That decision was, according to the
District Court in the Gallagher case, "an ad hoc improvisation" made

															"because of the realization that the Sunday law would be more
vulnerable to constitutional attack under the state Constitution if
the religious motivation of the statute were more explicitly
avowed." 176 F.
Supp. 466 , 473. Certainly, prior to the Has case, the
Massachusetts courts had indicated that the aim of the Sunday law
was religious. See Pearce v. Atwood, 13 Mass. 324,
345-346; Bennett v. Brooks, 91 Mass. 118, 121. After the Has case, the Massachusetts court construed the Sunday law
as a religious measure. In Davis v. Somerville, 128 Mass.
594, 596, 35 Am.Rep. 399, 400, it was said:

															"Our Puritan ancestors intended that the day should be not
merely a day of rest from labor, but also a day devoted to public
and private worship and to religious meditation and repose,
undisturbed by secular cares or amusements. They saw fit to enforce
the observance of the day by penal legislation, and the statute
regulations which they devised for that purpose have continued in
force, without any substantial modification, to the present
time." And see Commonwealth v. Detra, 143 Mass. 28, 8 N.E.
756. In Commonwealth v. White, 190 Mass. 578, 581, 77 N.E.
636, 637, the court refused to liberalize its construction of an
exception in its Sunday law for works of "necessity." That word, it
said,

															"was originally inserted to secure the observance of the Lord's
day in accordance with Page 366 U. S. 570 the views of our ancestors, and it ever since has stood, and
still stands, for the same purpose."

															In Commonwealth v. McCarthy, 244 Mass. 484, 486, 138
N.E. 835, 836, the court reiterated that the aim of the law was "to
secure respect and reverence for the Lord's day."

															The Pennsylvania Sunday laws before us in Nos. 36 and 67 have
received the same construction.

															"Rest and quiet, on the Sabbath day, with the right and
privilige of public and private worship, undisturbed by any mere
worldly employment, are exactly what the statute was passed to
protect." Sparhawk v. Union Passenger R. Co., 54 Pa. 401, 423. And see Commonwealth v. Nesbit, 34 Pa. 398, 405, 406-408.
A recent pronouncement by the Pennsylvania Supreme Court is found
in Commonwealth v. American Baseball Club, 290 Pa. 136,
143, 138 A. 497, 499: "Christianity is part of the common law of
Pennsylvania . . . , and its people are christian people. Sunday is
the holy day among christians."

															The Maryland court, in sustaining the challenged law in No. 8,
relied on Judefind v. State, 78 Md. 510, 28 A. 405, and Levering v. Park Commissioner, [ Footnote 3/5 ] 134 Md. 48, 106 A. 176. In the former, the
court said:

															"It is undoubtedly true that rest from secular employment on
Sunday does have a tendency to foster and encourage the Christian
religion -- of all sects and denominations that observe that day --
as rest from work and ordinary occupation enables many to engage in
public worship who probably would not otherwise do so. But it would
scarcely be asked of a Court, in what professes to be a Christian
land, to declare a law unconstitutional because it requires rest
from bodily labor on Sunday, (except works of necessity and
charity,) and thereby promotes the Page 366 U. S. 571 cause of Christianity. If the Christian religion is,
incidentally or otherwise, benefited or fostered by having this day
of rest, as it undoubtedly is, there is all the more reason for the
enforcement of laws that help to preserve it."

															78 Md. at 515-516, 128 A. at 407. In the Levering case,
the court relied on the excerpt from the Judefind decision
just quoted. 134 Md. at 54-55, 106 A. at 178.

															We have then in each of the four cases Sunday laws that find
their source in Exodus, that were brought here by the Virginians
and by the Puritans, and that are today maintained construed, and
justified because they respect the views of our dominant religious
groups and provide a needed day of rest.

															The history was accurately summarized a century ago by Chief
Justice Terry of the Supreme Court of California in Ex parte
Newman, 9 Cal. 502, 509:

															"The truth is, however much it may be disguised, that this one
day of rest is a purely religious idea. Derived from the Sabbatical
institutions of the ancient Hebrew, it has been adopted into all
the creeds of succeeding religious sects throughout the civilized
world, and whether it be the Friday of the Mohammedan, the Saturday
of the Israelite, or the Sunday of the Christian, it is alike fixed
in the affections of its followers, beyond the power of
eradication, and in most of the States of our Confederacy, the aid
of the law to enforce its observance has been given under the
pretence of a civil, municipal, or police regulation."

															That case involved the validity of a Sunday law under a
provision of the California Constitution guaranteeing the "free
exercise" of religion. Calif.Const., 1849, Art. I, § 4. Justice
Burnett stated why he concluded that the Page 366 U. S. 572 Sunday law, there sought to be enforced against a man selling
clothing on Sunday, infringed California's constitution: '

															"Had the act made Monday, instead of Sunday, a day of compulsory
rest, the constitutional question would have been the same. The
fact that the Christian voluntarily keeps holy the first
day of the week does not authorize the Legislature to make that
observance compulsory. The Legislature cannot compel the
citizen to do that which the Constitution leaves him free to do or
omit at his election. The act violates as much the religious
freedom of the Christian as of the Jew. Because the conscientious
views of the Christian compel him to keep Sunday as a Sabbath, he
has the right to object when the Legislature invades his freedom of
religious worship and assumes the power to compel him to do that
which he has the right to omit if he pleases. The principle is the
same whether the act of the Legislature compels us to do
that which we wish to do or not to do. . . ."

															"Under the Constitution of this State, the Legislature cannot
pass any act the legitimate effect of which is forcibly to
establish any merely religious truth or enforce any merely
religious observances. The Legislature has no power over such a
subject. When, therefore, 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 or observance, the act is unconstitutional." Id. at 513-515.

															The Court picks and chooses language from various decisions to
bolster its conclusion that these Sunday laws, in the modern
setting, are "civil regulations." No matter how much is written, no
matter what is said, the parentage of these laws is the Fourth
Commandment, and they Page 366 U. S. 573 serve and satisfy the religious predispositions of our Christian
communities. [ Footnote 3/6 ] After
all, the labels a State places on its laws are not binding on us
when we are confronted with a constitutional decision. We reach our
own conclusion as to the character, effect, and practical operation
of the regulation in determining its constitutionality. Carpenter v. Shaw, 280 U. S. 363 , 280 U. S.
367 -368; Dyer v. Sims, 341 U. S.
22 , 341 U. S. 29 ; Memphis Steam Landry v. Stone, 342 U.
S. 389 , 342 U. S. 392 ; Society for Savings v. Bowers, 349 U.
S. 143 , 349 U. S. 151 ; Gomillion v. Lightfoot, 364 U. S. 339 , 364 U. S.
341 -342.

															It seems to me plain that, by these laws, the States compel one,
under sanction of law, to refrain from work or recreation on Sunday
because of the majority's religious views about that day. The
State, by law, makes Sunday a symbol of respect or adherence.
Refraining from work or recreation in deference to the majority's
religious feelings about Sunday is within every person's choice. By
what authority can government compel it?

															Cases are put where acts that are immoral by our standards, but
not by the standards of other religious Page 366 U. S. 574 groups are made criminal. That category of cases, until today,
has been a very restricted one confined to polygamy ( Reynolds
v. United States, 98 U. S. 145 ) and
other extreme situations. The latest example is Prince v.
Massachusetts, 321 U. S. 158 ,
which upheld a statute making it criminal for a child under twelve
to sell papers, periodicals, or merchandise on a street or in any
public place. It was sustained in spite of the finding that the
child thought it was her religious duty to perform the act. But
that was a narrow holding which turned on the effect which street
solicitation might have on the child solicitor:

															"The state's authority over children's activities is broader
than over like actions of adults. This is peculiarly true of public
activities and in matters of employment. A democratic society
rests, for its continuance, upon the healthy, well rounded growth
of young people into full maturity as citizens, with all that
implies. It may secure this against impeding restraints and dangers
within a broad range of selection. Among evils most appropriate for
such action are the crippling effects of child employment, more
especially in public places, and the possible harms arising from
other activities subject to all the diverse influences of the
street. It is too late now to doubt that legislation appropriately
designed to reach such evils is within the state's police power,
whether against the parent's claim to control of the child or one
that religious scruples dictate contrary action." Id. 321 U. S.
168 -169. None of the acts involved here implicates
minors. None of the actions made constitutionally criminal today
involves the doing of any act that any society has deemed to be
immoral.

															The conduct held constitutionally criminal today embraces the
selling of pure, not impure, food; wholesome, Page 366 U. S. 575 not noxious, articles. Adults, not minors, are involved. The
innocent acts, now constitutionally classified as criminal,
emphasize the drastic break we make with tradition.

															These laws are sustained because, it is said, the First
Amendment is concerned with religious convictions or opinion, not
with conduct. But it is a strange Bill of Rights that makes it
possible for the dominant religious group to bring the minority to
heel because the minority, in the doing of acts which intrinsically
are wholesome and not antisocial, does not defer to the majority's
religious beliefs. Some have religious scruples against eating
pork. Those scruples, no matter how bizarre they might seem to
some, are within the ambit of the First Amendment. See United
States v. Ballard, 322 U. S. 78 , 322 U. S. 87 . Is
it possible that a majority of a state legislature having those
religious scruples could make it criminal for the nonbeliever to
sell pork? Some have religious scruples against slaughtering
cattle. Could a state legislature, dominated by that group, make it
criminal to run an abattoir?

															The Court balances the need of the people for rest, recreation,
late sleeping, family visiting and the like against the command of
the First Amendment that no one need bow to the religious beliefs
of another. There is in this realm no room for balancing. I see no
place for it in the constitutional scheme. A legislature of
Christians can no more make minorities conform to their weekly
regime than a legislature of Moslems, or a legislature of Hindus.
The religious regime of every group must be respected -- unless it
crosses the line of criminal conduct. But no one can be forced to
come to a halt before it or refrain from doing things that would
offend it. That is my reading of the Establishment Clause and the
Free Exercise Clause. Any other reading imports, I fear, an element
common in other societies but foreign to us. Thus, Nigeria, in
Article 23 of her Constitution, after Page 366 U. S. 576 guaranteeing religious freedom, adds,

															"Nothing in this section shall invalidate any law that is
reasonably justified in a democratic society in the interest of
defence, public safety, public order, public morality, or public
health." And see Article 25 of the Indian Constitution. That may
be a desirable provision. But when the Court adds it to our First
Amendment, as it does today, we make a sharp break with the
American ideal of religious liberty as enshrined in the First
Amendment.

															The State can, of course, require one day of rest a week: one
day when every shop or factory is closed. Quite a few States make
that requirement. [ Footnote 3/7 ]
Then the "day of rest" becomes purely and simply a health measure.
But the Sunday laws operate differently. They force minorities to
obey the majority's religious feelings of what is due and proper
for a Christian community; they provide a coercive spur to the
"weaker brethren," to those who are indifferent to the claims of a
Sabbath through apathy or scruple. Can there be any doubt that
Christians, now aligned vigorously in favor of these laws, would be
as strongly opposed if they were prosecuted under a Moslem law that
forbade them from engaging in secular activities on days that
violated Moslem scruples?

															There is an "establishment" of religion in the constitutional
sense if any practice of any religious group has the sanction of
law behind it. There is an interference with the "free exercise" of
religion if what in conscience one Page 366 U. S. 577 can do or omit doing is required because of the religious
scruples of the community. Hence, I would declare each of those
laws unconstitutional as applied to the complaining parties,
whether or not they are members of a sect which observes as its
Sabbath a day other than Sunday.

															When these laws are applied to Orthodox Jews, as they are in No.
11 and in No. 67, or to Sabbatarians, their vice is accentuated. If
the Sunday laws are constitutional, kosher markets are on a
five-day week. Thus, those laws put an economic penalty on those
who observe Saturday, rather than Sunday, as the Sabbath. For the
economic pressures on these minorities, created by the fact that
our communities are predominantly Sunday-minded, there is no
recourse. When, however, the State uses its coercive powers -- here
the criminal law -- to compel minorities to observe a second
Sabbath not their own, the State undertakes to aid and "prefer one
religion over another" -- contrary to the command of the
Constitution. See Everson v. Board of Education, supra, 330 U. S. 15 .

															In large measure, the history of the religious clause of the
First Amendment was a struggle to be free of economic sanctions for
adherence to one's religion. Everson v. Board of Education,
supra, 330 U. S. 11 -14.
A small tax was imposed in Virginia for religious education.
Jefferson and Madison led the fight against the tax, Madison
writing his famous Memorial and Remonstrance against that law. Id. 330 U. S. 12 . As
a result, the tax measure was defeated, and instead Virginia's
famous "Bill for Religious Liberty," written by Jefferson, was
enacted. Id. 330 U. S. 12 .
That Act provided: [ Footnote
3/8 ]

															"That no man shall be compelled to frequent or support any
religious worship, place, or ministry whatsoever, nor shall be
enforced, restrained, molested, or burthened in his body or goods,
nor shall otherwise Page 366 U. S. 578 suffer on account of his religious opinions or belief. . .
."

															The reverse side of an "establishment" is a burden on the "free
exercise" of religion. Receipt of funds from the State benefits the
established church directly; laying an extra tax on nonmembers
benefits the established church indirectly. Certainly the present
Sunday laws place Orthodox Jews and Sabbatarians under extra
burdens because of their religious opinions or beliefs. Requiring
them to abstain from their trade or business on Sunday reduces
their workweek to five days unless they violate their religious
scruples. This places them at a competitive disadvantage and
penalizes them for adhering to their religious beliefs.

															"The sanction imposed by the state for observing a day other
than Sunday as holy time is certainly more serious economically
than the imposition of a license tax for preaching, [ Footnote 3/9 ]"

															which we struck down in Murdock v. Pennsylvania, 319 U. S. 105 , and
in Follett v. McCormick, 321 U. S. 573 . The
special protection which Sunday laws give the dominant religious
groups and the penalty they place on minorities whose holy day is
Saturday constitute, in my view, state interference with the "free
exercise" of religion. [ Footnote
3/10 ] Page 366 U. S. 579 I dissent from applying criminal sanctions against any of these
complainants, since to do so implicates the States in religious
matters contrary to the constitutional mandate. [ Footnote 3/11 ] Reverend Allan C. Parker, Jr.,
Pastor of the Page 366 U. S. 580 South Park Presbyterian Church, Seattle, Washington, has stated
my views:

															"We forget that, though Sunday-worshiping Christians are in the
majority in this country among religious people, we do not have the
right to force our practice upon the minority. Only a Church which
deems itself without error and intolerant of error can justify its
intolerance of the minority."

															"A Jewish friend of mine runs a small business establishment.
Because my friend is a Jew, his business is closed each Saturday.
He respects my right to worship on Sunday, and I respect his right
to worship on Saturday. But there is a difference. As a Jew, he
closes his store voluntarily, so that he will be able to worship
his God in his fashion. Fine, but, as a Jew living under
Christian-inspired Sunday closing laws, he is required to close his
store on Sunday so that I will be able to worship my God in my
fashion."

															"Around the corner from my church, there is a small Seventh Day
Baptist church. I disagree with the Seventh Day Baptists on many
points of doctrine. Among the tenets of their faith with which I
disagree is the 'seventh day worship.' But they are good neighbors
and fellow Christians, and, while we disagree, we respect one
another. The good people of my congregation set aside their jobs on
the first of the week and gather in God's house for worship. Of
course, it is easy for them to set aside their jobs, since Sunday
closing laws -- inspired by the Church -- keep them from their
work. At the Seventh Day Baptist church, the people set aside their
jobs on Saturday to worship God. This takes real sacrifice, because
Saturday is a good day for business. But that is not all -- they
are required by law to set aside Page 366 U. S. 581 their jobs on Sunday while more orthodox Christians
worship."

															". . . I do not believe that, because I have set aside Sunday as
a holy day, I have the right to force all men to set aside that day
also. Why should my faith be favored by the State over any other
man's faith? [ Footnote 3/12 ]"

															With all deference, none of the opinions filed today in support
of the Sunday laws has answered that question.

															* [NOTE: This opinion applies also to No. 36, Two Guys From
Harrison-Allentown, Inc. v. McGinley, District Attorney, Lehigh
County, Pennsylvania, et al., post, p. 366 U. S. 582 ; No.
67, Braunfeld et al. v. Brown, Commissioner of Police of
Philadelphia, et al., post, p. 366 U. S. 599 , and
No. 11, Gallagher, Chief of Police of Springfield,
Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al.,
post, p. 366 U. S.
617 .]

															[ Footnote 3/1 ]

															The Problems of Pluralism, Danforth Lectures, Miami University,
Oxford, Ohio (1960). Other writers suggest that America is still
subject to a customary and nonlegal "Protestant establishment"
which comes to the surface only on certain political issues. Thus,
a Rabbi Arthur Hartzberg was able to analyze the "religious issue"
of the recent presidential campaign in these terms:

															"As we have seen, the First Amendment was the battleground, at
the end of the 18th century, of a major transition in American
society in which the old Protestant establishment was forced to
yield to the newer ethos of Protestant nonconformity. Today in
American society we are witnessing a change perhaps as important --
the full entry of the post-bellum immigrant groups into the
national life. Though the battle once again seems to be raging
around the First Amendment, it would appear from the foregoing
analysis that the true issue is not the separation of church and
state, but the symbolic significance for American life and culture
of having a non-Protestant -- whether he be a Catholic, a Jew, or
an avowed atheist -- as President of the United States."

															Hartzberg, "The Protestant Establishment,' Catholic Dogma,
and the Presidency," Commentary (October 1960), p. 285. [ Footnote 3/2 ]

															Blackstone's Commentaries, Bk. IV, c. 4, entitled "Of Offenses
Against God and Religion," says in part:

															"IX. Profanation of the Lord's day, vulgarly (but improperly)
called Sabbath-breaking, is a ninth offence against God
and religion, punished by the municipal law of England. For,
besides the notorious indecency and scandal of permitting any
secular business to be publicly transacted on that day in a country
professing christianity, and the corruption of morals which usually
follows its profanation, the keeping one day in 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; it imprints on the minds of the
people that sense of their duty to God, so necessary to make them
good citizens, but which yet would be worn out and defaced by an
unremitted continuance of labour without any stated times of
recalling them to the worship of their Maker."

															[ Footnote 3/3 ] See also Ullner v. Ohio, 358 U.
S. 131 ; Kidd v. Ohio, 358 U.
S. 132 ; McGee v. North Carolina, 346 U.S. 802; cf. Grochowiak v. Pennsylvania, 358 U. S.
47 ; Gundaker Cent. Motors, Inc. v. Gassert, 354
U.S. 933; Towery v. North Carolina, 347 U.S. 925.

															[ Footnote 3/4 ]

															As respects the First Amendment, the court said:

															"It does not set up a church, make attendance upon religious
worship compulsory, impose restrictions upon expression of
religious belief, work a restriction upon the exercise of religion
according to the dictates of one's conscience, provide compulsory
support, by taxation or otherwise, of religious institutions, nor
in any way enforce or prohibit religion."

															302 N.Y. at 79, 96 N.E.2d at 186.

															[ Footnote 3/5 ] Cf. Bowman v. Secular Society, Ltd. [1917] A.C. 406,
464 (opinion of Lord Sumner).

															[ Footnote 3/6 ]

															Today we retreat from that jealous regard for religious freedom
which struck down a statute because it was "a handy implement for
disguised religious persecution." Board of Education v.
Barnette, supra, 319 U. S. 644 (concurring opinion). It does not do to say, as does the majority,
"Sunday is a day apart from all others. The cause is irrelevant;
the fact exists." The cause of Sunday's being a day apart is
determinative; that cause should not be swept aside by a
declaration of parochial experience.

															The judgment the Court is called upon to make is a delicate one.
But, in the light of our society's religious history, it
cannot be avoided by arguing that a hypothetical lawgiver could
find nonreligious reasons for fixing Sunday as a day of rest. The
effect of that history is, indeed, still with us. Sabbath is no
less Sabbath because it is now less severe in its strictures, or
because it has come to be expedient for some nonreligious purposes.
The Constitution must guard against "sophisticated as well as
simple-minded modes" of violation. Lane v. Wilson, 307 U. S. 268 , 307 U. S.
275 .

															[ Footnote 3/7 ]

															Or the State may merely fix a maximum hours' limitation in other
terms, either for particular classes of employees, particular
classes of employment, or straight across the board. See laws and decisions gathered in 1 & 2 CCH Labor Law Reporter,
State Laws, par. 44,500 et seq. On argument, there was
much made over the desirability of fixing a single day for rest,
either on grounds of administrative convenience or on grounds of
the need for leisure. In light of the history and meaning of the
shared leisure of Sunday, this aim still has religious overtones. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.
S. 495 , 343 U. S.
505 .

															[ Footnote 3/8 ]

															Hening, Stat. Va. (1823), p. 86.

															[ Footnote 3/9 ]

															Pfeffer, Church, State, and Freedom (1953), p. 235.

															[ Footnote 3/10 ]

															". . . assuming that the idle Sunday is an 'institution' of
Christianity, does a statute which for that reason requires men to
be idle on Sunday give a preference to one particular religion? How
can it be maintained that it does not unless a similar institution
of every other religion be honored with like recognition? As to the
individual aspect of the case, if the law is to assist Christianity
by making idleness compulsory on its sacred day, thereby presumably
commending it to those who reject it and strengthening its hold
upon its devotees, is there not a 'preference' given to a religion
unless the Hebrew and all other faiths have a like recognition
extended to their sacred day? And as to the social aspect, assuming
that it is an advantage to have other people kept extraordinarily
quiet while we pray, and to have an especial 'peace' established by
law on the day we select for public worship, and that we have the
right to prevent our neighbor from earning his living at a certain
time because the practice of his avocation interferes with our
religious exercises, must it not be called a 'preference' to do all
this for the Christian's benefit, and not to do it for the benefit
of the followers of Moses, or Mahomet, or Confucius or Buddha?"

															Ringgold, Legal Aspects of the First Day of the Week (1891), pp.
68-69.

															[ Footnote 3/11 ]

															It is argued that the wide acceptance of Sunday laws at the time
of the adoption of the First Amendment makes it fair to assume that
they were never thought to come within the "establishment" Clause,
and that the presence in the country at that time of large numbers
of Orthodox Jews makes it clear that those laws were not thought to
run afoul of the "free exercise" Clause. Those reasons would be
compelling if the First Amendment had, at the time of its adoption,
been applicable to the States. But since it was then applicable
only to the Federal Government, it had no possible bearing on the
Sunday laws of the States. The Fourteenth Amendment, adopted years
later, made the First Amendment applicable to the States for the
first time. That Amendment has had unsettling effects on many
customs and practices -- a process consistent with Jefferson's
precept "that laws and institutions must go hand in hand with the
progress of the human mind." 15 The Writings of Thomas Jefferson
(Memorial ed.1904), p.41.

															Moreover, there is solid evidence to suggest that the Jewish
population of our Nation was then minuscule.

															"Despite the roseate estimates of some Jewish writers on the
subject, it is safe to say there were never more than one thousand
Jews living among the three million and more inhabitants of the
colonies. The Newport community in its heyday totaled at most one
hundred and fifty to one hundred and seventy-five Jews. Perhaps New
York had as many or more. Philadelphia, Charleston and Savannah
were certainly smaller communities. Even when combining their
Jewish populations with the lonely groups in the back county, we
still are far from an impressive total."

															Goodman, American Overture: Jewish Rights in Colonial Times
(1947), p. 3.

															[ Footnote 3/12 ]

															56 Liberty, January-February 1961, No. 1, pp. 21-22.