Blue Sunday

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.

In upholding blue laws, the Supreme Court conceded that they do inflict hardship upon the Orthodox Jewish storekeeper, prohibited by his religion from doing business on Saturday. In an effort to relieve that special hardship, New York City has just passed a new ordinance permitting a merchant to sell "any property" on Sunday if he "keep another day of the week as holy time.' But many a New York City storekeepe has long stayed open on both Saturda] and Sunday, anyway, reluctantly pay ing an occasional $5 fine when a police man checks on his trespasses.

It is almost as if Supreme Cour justices and laymen alike are resigned to the letter of blue laws living on for ever, although their spirit has long beer dead. New York State Supreme Court Justice William J. Gaynor spoke for the majority of the citizens in 1904 when he rebuked the police for trying to enforce "dead-letter laws" not supported by the public. "It is not the business of the police to revive them," he said. "They are not employed and paid by the citizens for any such purpose."

* Why they are called blue is a matter of dispute among scholars. Some say the laws got their name because the 17th century Puritans adopted blue as their emblematic color. Others maintain it was because early New England blue laws were bound in blue or printed on blue paper.

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