Software Nerd

Tuesday, November 20, 2007

Blue Laws

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.


  • I think you need to take a look at the Supreme Court's reasoning in the case of Lemon v. Kurtzman (1971), in which they establish a 3-prong test for determining if the Establishment Clause of the First Amendment has been violated. Clearly, in light of this test, Blue Laws do not pass muster.
    However, I'm not sure that any Blue Laws have been challenged in recent times since the Court's holding in the Lemon case.

    By Anonymous Anonymous, at 8:42 AM  

  • Thanks, I'll check it out sometime.

    Sometimes I'm cynical enough to think that the SCOTUS is like a "super-senate", a body that will basically reflect democratic opinion, but with much more "lag" that the legislature, because they have to justify every move by arguments.

    By Blogger softwareNerd, at 6:02 AM  

  • Thinking back to the recent case involving sodomy laws in Texas, my guess is that Scalia would vote to uphold the law.

    By Anonymous dbclawyer, at 3:53 PM  

  • Qwertz (who's studying law) has done an informative post on this topic.

    By Blogger softwareNerd, at 8:22 PM  

  • These are annoying! When I am in Wal-mart and wanna pick up a nice bottle of wine I can't because its Sunday :|

    Its a retarded law and I hope it gets struck down soon.

    Oh yeah, Ron Paul is pro-choice state-by-state.

    Check this out and let me know what you think.

    By Blogger Zeke, at 9:48 AM  

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