Sunday law in the nineteenth century

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Author: Andrew J. King
Date: Winter 2000
From: Albany Law Review(Vol. 64, Issue 2)
Publisher: Albany Law School
Document Type: Article
Length: 45,221 words

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I. INTRODUCTION

Since the late nineteenth century the grip of Sunday laws on American behavior has slowly relaxed. Even in states that retain these regulations, the "blue laws" are now a pale reminder of a time when legislation banned Sunday work, travel, and recreation.(1) Urbanization and secularization have long since eroded support for enforcement of traditional sectarian Sunday observance. Although enforced Sabbath observance was always controversial, its modern erosion began after the Civil War, when governments began to display a distaste for vigorous enforcement of the Sunday laws, especially in the cities.(2) While legislatures left penalties for Sabbath-breaking at their late-eighteenth century levels, enforcement was often relaxed.(3) An Eastern court observed that "[t]here is more walking and riding done on the first day of the week than any other.... [t]he whole population is in motion."(4) Treatise writers noted the lax enforcement. A.H. Lewis wrote that "these laws are `dead letter.' Whoever wishes to disobey them, does so. Many of them which seem to be stringent, are open enough to `drive a coach and four through without touching.'"(5) George Harris noted that enforcement of Sunday laws depended "to a greater or less extent upon the state of public sentiment as to the strictness with which the Sabbath should be observed."(6) And, in 1882 a California court remarked that there had been little effort to enforce California's Sunday law since its enactment twenty years earlier.(7) "Many have devoted the day to religious exercises, some to recreation, and others to labor, and all apparently ignorant of the existence of this law."(8)

In their approach to Sunday matters, nineteenth-century judges displayed both religious and secular outlooks. The religious approach reflected a commitment to a de facto Protestant establishment.(9) These judges believed that America was a Christian nation, that Christianity was a source of the country's common law norms, and that the judges guarded this religious heritage.(10) To them "religious liberty" meant toleration of groups that deviated from normative Protestantism.(11) Toleration meant freedom from coercion but it did not mean equality for all religious groups or untrammeled free exercise.(12) During the nineteenth century this position became increasingly difficult to maintain in the face of criticism.(13) Thomas Cooley, for example, wrote that the "laws against the desecration of the Christian Sabbath by labor or sports are not so readily defensible by arguments the force of which will be felt and admitted by all."(14) The editor of the Federal Reporter pointed to a Georgia court's "obvious error" when it rested enforcement of a Sunday law on the Bible.(15)

Judicial secularism manifested itself in two ways. First, the courts responded to the American doctrine of religious freedom by adopting a police power rationale for Sunday legislation.(16) The courts' discomfort with the sectarianism of re-enacted eighteenth century statutes demanded a non-religious justification.(17) Separation of church and state made a secular justification for Sunday statutes necessary;(18) the police power made it plausible.(19) The courts were able to treat Sunday laws as an aspect of the police power's protection of health.(20)...

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Gale Document Number: GALE|A78683505