Sunday closing laws, Orthodox Jewish merchants and the 1961 Sabbath rulings

Here is a puzzle. A state passes a law that shuts down retail stores on Sunday. Is that an establishment of religion, or a day off?

Both answers are defensible, and in 1961 the Supreme Court gave them both a hearing, and then it gave a ruling that satisfied almost nobody and taught a lot of people something. Four cases, decided the same day, produced a set of opinions that still repay careful reading. They are an education in how a pluralist republic handles a law with religious roots and a secular purpose, and in what it costs the minority who keep a different day.

Let us do this properly. Define the terms, set out the facts, state the holdings, steelman the dissents and then draw the conclusions.

Terms: blue laws, establishment and free exercise

A blue law is a statute restricting commerce or amusement on Sunday. The name is old, and its origin is disputed, so we will not pretend to settle it. What is not disputed is that Sunday restrictions are very old in the English-speaking world. In the Roman Empire, Constantine issued an edict in 321 requiring rest from work in towns on the day of the sun. In the American colonies, the earliest codes included strict Sabbath rules, and Virginia's early code of 1610 and 1611, administered by Sir Thomas Dale, was harsh about church attendance. After independence, most states kept some version of Sunday restrictions on their books.

Two clauses of the First Amendment are at stake. The Establishment Clause says Congress shall make no law "respecting an establishment of religion," and the Court had applied that to the states through the Fourteenth Amendment. The Free Exercise Clause protects "the free exercise thereof." Sunday closing laws put the two in tension: a law with a religious pedigree is challenged as an establishment, and its burden on a believer who keeps a different day is challenged as a violation of free exercise.

The cases

The Court decided several cases on May 29, 1961. The main two for our purposes are McGowan v. Maryland and Braunfeld v. Brown, with a companion, Gallagher v. Crown Kosher Super Market, and a fourth involving Two Guys from Harrison-Allentown.

McGowan. Maryland law prohibited the sale of most goods on Sunday but made numerous exceptions. Employees of a large discount department store in Anne Arundel County were charged with selling, on a Sunday, items including a loose-leaf binder, a can of floor wax, a stapler and a toy. They argued that the law was a religious establishment, and that its patchwork of exceptions was arbitrary. Chief Justice Earl Warren wrote the opinion for the Court. His holding: whatever the origins of Sunday laws, they had evolved into laws that served a secular purpose, a uniform day of rest and recreation. The legislature, he reasoned, was entitled to choose one day, and Sunday was the practical choice because it was the day most people already observed. The law did not compel anyone to worship, and it did not prefer one church over another in any way that the Establishment Clause forbids.

Braunfeld. Here the challengers were Orthodox Jewish merchants in Philadelphia who sold clothing and home furnishings. Their faith required them to close from sundown Friday to sundown Saturday. Pennsylvania's law required them to close Sunday as well, which meant losing a full day of business that their Christian competitors kept. They argued that the law burdened their free exercise: it forced them to choose between their religion and their livelihood. Warren, writing a plurality opinion, rejected the claim. The law did not make their religious practice unlawful. It made it more expensive. The burden was indirect, and the state had a secular purpose, so the law stood. The Court worried that a rule granting exemptions would create enforcement problems, and that the legislature's choice of one uniform day was reasonable.

Gallagher v. Crown Kosher extended the result to a kosher supermarket in Massachusetts that stayed open on Sunday after closing on Saturday.

The dissents: Douglas, Brennan and Stewart

The rulings were not unanimous, and the dissents are the most instructive part of the record.

Justice William O. Douglas, who dissented in McGowan and the related cases, argued that the laws were, in substance, an establishment: the day chosen was the Christian day, and the state had no business compelling the observance of any particular day of religious significance, however the legislature phrased the purpose. He put the burden on the state's choice of the day, noting that a person who observes another day, or none, is being made to accommodate a majority's holy day. His position had a long pedigree, because it reflects the Founding generation's suspicion of using the civil power to enforce religious duties.

Justice William Brennan wrote separately in Braunfeld, concurring in part and dissenting. His point was the practical one: the law forced the Orthodox Jewish merchant to choose between his religion and his business, and he thought the state had to show a compelling interest to justify that. He argued that the states could accommodate Sabbatarians without destroying the uniform day of rest, since other states already exempted those who observed a different day.

Justice Potter Stewart dissented in Braunfeld too, with an opinion often remembered for its plainness. In substance he said that Pennsylvania had passed a law that forced an Orthodox Jew to choose between his religious faith and his economic survival, and that he considered that a cruel choice, one the First Amendment should not permit.

Now state the dissenters' best case in one fair paragraph. The dissenters did not say that a day of rest is unconstitutional, or that legislatures may not regulate commerce. They said something narrower and harder to dismiss: when a general law falls unevenly on a religious minority, and an exemption would not defeat the law's purpose, the Constitution should require the exemption. The Orthodox merchant was not asking to abolish the Sunday law. He was asking to be left alone to keep his own Sabbath, and that is exactly what the Free Exercise Clause was written to protect.

The answer: why the Court's secular-purpose holding was right on the first question and wrong on the second

I want to separate the two questions the Court decided, because they have different answers.

Question one: is a Sunday closing law an establishment of religion? The Court was right to say no. Here are the reasons, in numbered premises.

1. The Establishment Clause is aimed at compelled worship and legal preference among churches. A statute that sets a common day of rest does not require anyone to pray, attend a service or support a church.
2. A law can have religious roots and a secular function. Plenty of laws we do not call establishments, such as laws against theft and murder, track moral teachings found in Scripture. If religious ancestry were disqualifying, much of the law would fall. The test is what the law now does.
3. A common day of rest has real secular value. A shared pause lets families and communities gather, and a world in which everyone's rest day is different is a world in which nobody's is. That is a legitimate goal for a legislature, and a regional or national custom of Sunday rest is a reasonable way to serve it.
4. The alternative would require courts to decide which holidays are religious. Thanksgiving is a proclaimed day of thanks. Christmas is a federal holiday. If every day with religious meaning had to be struck from the calendar, the judiciary would be policing the calendar for centuries.

Question two: must the law yield to the Sabbath-observant merchant? Here the Braunfeld plurality was wrong, and Brennan and Stewart were right. The reasons:

1. The burden was real. A man who keeps Saturday and is forced to close Sunday loses a sixth of his week. His Christian competitor loses none. The law did not forbid his worship, but it taxed it.
2. The state's interest did not require the burden. An exemption for those who observe another day, as many states provided, did not destroy the uniform day of rest. The plurality's worry about enforcement was speculative.
3. The Free Exercise Clause is not merely a ban on direct prohibition. It protects believers from being forced to choose between their conscience and their livelihood. A law that does so should have to justify itself.

So the same Court was right that Sunday rest laws are not an establishment, and wrong that they must be applied without exception to those who observe a different day. The cases teach that the answers to the two questions are independent.

Sherbert v. Verner: the Court changes course

The Court corrected itself two years later. In Sherbert v. Verner, decided in 1963, Adell Sherbert, a Seventh-day Adventist in South Carolina, was fired from her textile-mill job when she refused to work on Saturday, her Sabbath. South Carolina then denied her unemployment benefits because she would not accept work that required Saturday labor. Justice Brennan, writing for the Court, held that this burdened her free exercise, because it forced her to choose between following her religion and receiving benefits. The state, he said, needed a compelling interest to justify the burden, and it had none that met the standard. The Court distinguished Braunfeld in the opinion, although Justice Stewart, concurring, thought the cases could not be reconciled and that Braunfeld should be overruled.

The result was the "compelling interest" test for free exercise claims, which survived for decades until Employment Division v. Smith (1990) narrowed it. If you want the later chapter of that story, Employment Division v. Smith and the Scalia rule that still splits conservatives covers it. The Court also came back to the Sabbath in Thornton v. Caldor (1985), striking down a Connecticut law that gave every employee an absolute right not to work on his chosen Sabbath, on the ground that it gave religion an absolute preference and ignored the interests of the employer and of other workers. And in Groff v. DeJoy (2023) the Court unanimously reaffirmed that an employer must show substantial burden before denying a religious accommodation under federal law. The thread runs from 1961 to the present: the question of how to accommodate the believer without crowning his faith is a permanent one.

What the Founding teaches about rest and pluralism

Now measure the cases against the Founding. The Constitution itself takes notice of Sunday. Article I, Section 7 gives the President ten days to act on a bill, with the parenthetical "Sundays excepted." The framers wrote the first day of the week into the structure of government, treating it as a day when business paused. That does not make the Constitution an establishment of religion. It shows that a day of rest was part of the ordinary rhythm of the country, and that its observation was assumed.

The framers also left the states free to legislate on morals, health and safety under their general police power, which is the answer to why Maryland and Pennsylvania could pass these laws in the first place. For the question of what the Establishment and Free Exercise clauses together require, Sixteen words on religion in the First Amendment, read phrase by phrase reads the text clause by clause.

What do the cases teach about pluralism? Three things.

First, a free society is allowed to have a calendar. The idea that a neutral state would have no common rhythm is a fantasy. A calendar is a necessary public good.

Second, the minority has a claim on the majority's patience. The burden on the Sabbath-observant is not to be waved away by the observation that the law is neutral on its face. A rule that is neutral in text can fall unequally in practice, and the Constitution asks whether the state can accommodate at modest cost.

Third, the law of religious accommodation works best when it is tempered by the legislature's own good judgment. Many states chose exemptions for Sabbatarians. That was the better course, and it required no judicial command. See 'Religious liberty is a license to discriminate,' answered with the law and What a state RFRA does and does not do, in twelve plain questions for how the modern law of accommodation handles the same tension.

Why rest matters

Last, a word on why any of this is worth a constitutional fight. The day of rest is not trivial. It is a moral claim about human beings: that a person is more than a worker, that a family needs time together and that a community needs a pause in which it remembers what it is for. The Sabbath is the oldest labor protection on record, so why do we mock it? makes that case at length, and Eric Liddell would not run on Sunday, then won Olympic gold anyway tells of a man who paid a price for it.

A conservative who values both the Sabbath and the First Amendment should be able to hold both thoughts at once: that a shared day of rest is a good thing a legislature may choose, and that no merchant should be punished for keeping a different one.

The case in brief

1. In McGowan v. Maryland (1961), Chief Justice Warren held that Sunday closing laws, whatever their religious origin, serve a secular purpose of a common day of rest, and so are not an establishment of religion.
2. In Braunfeld v. Brown (1961), a plurality held that the burden on Orthodox Jewish merchants who also closed on Saturday was only an indirect economic cost, over the dissents of Brennan and Stewart.
3. The first holding was sound, because a law may have religious roots and a secular function; the second was wrong, because an exemption would have cost the state little and the burden on conscience was real.
4. Sherbert v. Verner (1963) changed course and required the state to show a compelling interest before burdening a Sabbath-keeper's livelihood, and later cases have kept returning to the balance.
5. The cases teach that a free republic may keep a common calendar, and that the minority who keep another day deserve accommodation by choice of the legislature and, where it fails, by command of the Constitution.

What you can do: read your own state's current law on Sunday sales and on religious accommodation in employment, then ask your state legislator whether Sabbath-keepers are protected.