Statutes: Blue Sunday

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One area of church-state relations virtually avoided by the Chicago conferees was the field of blue laws. And no wonder: it is one of the prickliest brier patches in U.S. law.

Blue laws* are relics of a time when church and state seemed inextricably intertwined. They survive through the same sort of legislative inertia that preserves the numerous city ordinances against kite flying—a pastime once feared as a sure horse-frightener.

Today every state of the Union except Alaska has some sort of never-on-Sunday law on the books. They range from prohibitions directed at a single activity—boxing in California, barbering in Oregon—to broad bans on industry and commerce. Several states, including Pennsylvania, North Carolina, Texas, Vermont and Virginia, have toughened their Sunday statutes within the past few years, and only last week the Supreme Court refused to hear an Ohio merchant's case challenging that state's blue laws.

Illegal Tricycles. What has faded away over the generations is the old religious motivation behind the laws. Only a minority of U.S. Christians today would argue that blue laws serve any purpose valuable enough to justify imposing them on non-Christians. There is not even any clear theological reason, much less a legal one, for insisting that Sunday be an official day of rest. It was on the seventh day, according to the Old Testament, that the Lord rested from the labors of Creation. Nevertheless, Sunday has been the state-decreed day of rest in Christendom ever since A.D. 321, when the Emperor Constantine, a convert to Christianity, decreed that citizens "shall rest upon the venerable day of the sun."

With that same decree, though, Constantine set a pattern for future blue laws: he made an exception. He said that farm people might work on Sunday to take advantage of fair weather. Ever since, every blue law seems inevitably to have picked up similar variations. In the U.S., state legislatures have repeatedly yielded to various business groups that wanted to be exempted from Sunday closing. As a result U.S. blue laws are riddled with erratic contradictions. In Pennsylvania it is legal to sell a bicycle on Sunday, but not a tricycle; in Massachusetts it is against the law to dredge for oysters, but not to dig for clams; in Connecticut genuine antiques may lawfully be sold, but not reproductions. The New York blue law code is particularly messy. Bars may open at 1 p.m., but baseball games may not begin until 2 p.m. It is legal to sell fruits but not vegetables, an automobile tire but not a tire jack, tobacco but not a pipe. It is unlawful to sell butter or cooked meat after 10 a.m., except that delicatessens may sell these foods between 4 p.m. and 7:30 p.m.

Flabby Argument. It is all so confusing that even the U.S. Supreme Court gets lost in the tangle. Only two years ago, Chief Justice Earl Warren, writing for the majority, said in effect that blue laws would violate the First Amendment only if their essential purpose were to aid religion, but nowadays "most of them, at least, are of a secular rather than a religious character." Sunday, said Warren, has come to be "a time for family activity, for late sleeping, for passive and active entertainments, for dining out and the like." Seldom has an issue of liberty been argued on flabbier grounds.