Blue Laws

softwareNerd · November 21, 2007

By softwareNerd from Software Nerd,cross-posted by MetaBlog

Ari Armstrong posted about "blue laws". These are laws that restrict various business activities on Sunday.

On the face of it, such laws violate the constitution, because they use the religious idea of a sabbath (i.e. a mandatory day of rest), to restrict the rights of non-religious people who do not agree with the day-of-rest ideology in the same sense as the democratic majority.

In 1961, the SCOTUS decided a case, [GALLAGHER v. CROWN KOSHER MARKET] and ruled 6-3 that blue-laws were indeed constitutional. The judges offered some pretty specious rationalizations. For instance, they say that the most current version of the law now had a preamble, giving secular reasons for the restrictions. Even though the law speaks of Sunday as the "lord's day", the majority said this was simply a "relic", and not the basis for the blue laws.

In essence, the majority of the SCOTUS found that those blue-laws did not have a Christian basis. A rationalist might buy that argument, but I bet you couldn't put it past a truck-driver!

The judges then pointed out how an assortment of things were allowed in the current law (unlike the old ones which were really strict). The clear reason for this is simple: the democratic majority loosened up their religious observances, and were now doing a lot of things that their forefathers did not do on Sunday. Somehow, the SCOTUS rationalized that because the law had been loosened up, therefore the remaining restrictions were no longer be religious. The court reasons thus: since the latest version allows the sales of soda and tobacco and allows amusement parks to open, therefore it cannot be religious. (In fact, the new law merely reflects the new, easier-going religion of the democratic majority.)

The SCOTUS essentially affirmed that the government has the right to force its citizens to take a day of rest and recreation. (Not sure what constitution they're reading.) And, given this right, it made sense, says the SCOTUS, for Sunday to be that day since most people are Christians. Right reasoning from the wrong starting premise.

This got me thinking: how might a "constructionists" like Scalia rule on something like this? Since blue laws have been around ever since the constitution, wouldn't he take that as proof that the founders could not have meant to disallow them? And what of the slightly older, but still post-Constitution versions that were more explicitly religious but still hung around? Wouldn't those be upheld on the same basis?

What say, you lawyers out there?

Has Scalia ever had to rule on a blue-law? If so, I'd like to know.