Blue laws

By David L. Hudson Jr., First Amendment Scholar

Updated August 2009

They are known by a variety of names — blue laws, Sunday blue laws, Sunday-closing laws, Sunday statutes. They affect a variety of activities on Sundays, ranging from liquor sales to hunting to car-buying. Many blue laws are county and city ordinances, though some are statewide statutes.

Some of the laws apply to commerce generally, while others target specific business practices. For example, a Michigan law specifically prohibits pawnshops from operating on Sundays. A North Carolina law prohibits hunting on Sunday.

Supporters contend blue laws serve valid secular purposes, such as providing a uniform day of rest and reducing workloads on police departments (in the case of laws restricting alcohol sales and the potentially resulting law-enforcement problems).

Critics charge that the laws are economically burdensome and violate the religious-liberty clauses of the First Amendment. Some argue the laws violate the free-exercise clause by imposing a disadvantage on those whose Sabbath day is not Sunday, while others argue the laws violate the establishment clause by endorsing and advancing Christianity. Still others say that the laws — though religious in origin — are now justified by secular purposes.

Blue laws have a long history and tradition in the United States, dating to Colonial times. Colonial leaders simply followed the model of such laws in England. However, Sabbath laws mandating a day of rest on Sunday surfaced in the Roman Empire in the 4th century A.D. with the influence of Christianity.

The origin of the term “blue laws” engenders some historical dispute. According to David N. Laband and Deborah Hendry Heinbuch in their book, Blue Laws: The History, Economics, and Politics of Sunday-Closing Laws, a common explanation for the term is that laws in the New Haven colony in the late 17th century were printed on blue paper. The book cites other historians who say the term comes from the term “true blue,” referring to people who don’t change their convictions or policies. “Blue, then, is the color of constancy and fidelity,” write Laband and Heinbuch. Still others argue that the term was coined by critics to ridicule the effort to prevent “blue” or indecent behavior, such as drinking and fornication.

Supreme Court decisions
In 1961, the U.S. Supreme Court issued four opinions that rejected challenges to Sunday laws in Maryland, Pennsylvania and Massachusetts on the basis of the equal-protection clause of the 14th Amendment and the religious-liberty clauses of the First Amendment. The cases are McGowan v. Maryland, Braunfeld v. Brown, Gallagher v. Crown Kosher Super Market of Massachusetts and Two Guys from Harrison-Allentown, Inc. v. McGinley.

The two most-cited opinions are McGowan and Braunfeld. The McGowan case arose after several Maryland department-store employees were convicted and fined for selling items such as a stapler, a loose-leaf binder, and floor wax. The Maryland blue law prohibited the sale of most items on Sunday except for tobacco, milk, bread, gas and a few other products.

In rejecting the constitutional challenges in McGowan, the Court ruled with respect to the free-exercise claim that the challengers had no standing because they did not explain how their rights to practice religion were hindered.

Most of the Court’s analysis concerned the establishment clause. The justices acknowledged that the original purpose of the Sunday-closing laws was religious in nature: “There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces.” However, the Court determined that the laws now served secular purposes, including establishing a day of rest “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.”

The Court further said that “the present purpose … 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.”

Justice William O. Douglas dissented, writing, “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.”

Similarly, the Court in Braunfeld v. Brown rejected constitutional challenges to a Pennsylvania blue law that prohibited the conducting of many types of business on Sundays. Abraham Braunfeld and other Orthodox Jews sued in federal court, contending that the law violated their constitutional rights. Braunfeld noted that he already closed his business on his Sabbath day, Saturday, and that the required Sunday closing would impose severe economic burdens on him.

But the Court rejected his free-exercise claim, finding that the law was generally applicable to business owners regardless of religious faith. Chief Justice Earl Warren wrote that “the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.”

Lower courts
Some lower courts have invalidated blue laws in other states, primarily because they found them to violate the establishment clause. A New York criminal court in People v. Yafee (2004) invalidated a blue law that limited the sale of alcohol on Sunday, writing:

“In view of the acknowledgement by the Court of Appeals that Sabbath Laws are founded in religious beliefs, it is time to declare all such laws unconstitutional. The substitution of a secular concern such as protecting ‘mom and pop’ from being overworked for the earlier concern that the religious nature of the day be observed does not make the statute in question less reprehensible, especially when the government tells the retailer which day is the Sabbath.”

The court determined that there “is no secular reason why beer cannot be sold on Sunday morning as opposed to any other morning.”

However, other courts have upheld the constitutionality of blue laws.

The Tennessee Court of Appeals upheld a Dickson city ordinance prohibiting Sunday beer sales in Martin v. Beer Board for City of Dickson (1995). “While Sunday was originally a day of religious observance, the passage of time has converted it into a secular day for many citizens and has freed it from its exclusively religious origins,” the appeals court wrote. “The cities have valid secular reasons for prohibiting the sale of beer on Sunday, including enhancing the safety of the travelling public, promoting domestic tranquility, shielding children from the effects of drinking, and accommodating the reduced number of law enforcement officers working on weekends.”

Future of blue laws
The question remains whether blue laws will remain on the books for years to come or will wither away. Some of the laws have come under increasing fire during tough economic times. For example, critics have charged that the staggering auto industry in Michigan would be well served if the ban on Sunday car sales in large counties was ended.

Others assert that the laws violate the First Amendment. Legal commentator Lesley Lawrence-Hammer in her 2007 Vanderbilt Law Review article, “Red, White, but Mostly Blue: The Validity of Modern Sunday Closing Laws Under the Establishment Clause,” argues that the laws violate the establishment clause. She reasons that the laws “have the effect of both endorsing religion and coercing citizens to participate in a religious exercise, namely, observing the Christian Sabbath.” She concludes that “the time has come to reevaluate the constitutionality of blue laws.”

Certainly the controversy over blue laws will continue.