NEW YORK (Aug. 24)
Major American Jewish religious and civic organizations today filed a brief with the United States Supreme Court asking the court to declare compulsory Sunday closing laws unconstitutional.
The organizations joining in the brief include in their constituencies most American rabbis, an overwhelming majority of members of Jewish congregations in the United States, and a substantial proportion of Americans affiliated with Jewish civic organizations.
The brief argues that Sunday laws infringe the First and Fourteenth Amendments to the United States Constitution. The First Amendment prohibits any establishment of religion or any law prohibiting the free exercise of religion. The Fourteenth Amendment enjoins states from depriving persons of liberty or property without due process of law or from denying them equal protection of the laws.
Specifically challenged in the brief are the compulsory Sunday laws of Massachusetts and Pennsylvania. In both those states, Sabbath-observing Jews had sought in lower courts to enjoin enforcement of the laws against them. These cases are now on appeal to the Supreme Court. Any clear-cut Supreme Court ruling will have far-reaching effects, since many states have Sunday laws like those of Massachusetts and Pennsylvania.
The Jewish organizations joining in the brief as “friends of the court” are affiliated in two national coordinating agencies, the Synagogue Council of America and the National Community Relations Advisory Council. The latter also includes 52 Jewish councils in cities throughout the United States.
A joint advisory committee of these two coordinating groups has been working for some years to maintain strict separation of church and state. This committee is made up of officially designated representatives of the national rabbinic and congregational bodies of Orthodox, Conservative and Reform Judaism, and of the American Jewish Congress, the Jewish Labor Committee, the Jewish War Veterans of the U. S. A., and the Jewish councils affiliated with the NCRAC. The brief was prepared under the direction of this joint advisory committee.
PRESENT ARGUMENTS SHOWING SUNDAY LAWS INFRINGE THE CONSTITUTION
The brief argues that the Sunday laws infringe the First Amendment because they are religious laws, forbidden by the constitutional ban on laws respecting an establishment of religion. Even if they are considered welfare laws–as has argued–the brief maintains, they still infringe the Amendment because they restrain the religious freedom of persons who observe some day other than Sunday as their Sabbath and thus interfere with the free exercise of religion.
In contending that the Sunday laws also infringe the Fourteenth Amendment, the brief rests on the so-called “due process” clause. The laws, the brief maintains, arbitrarily and unreasonably permit some activities and forbid others. This, in effect, deprives individuals of liberty and property without due process of law and denies equal protection of the laws, the brief argues.
While entering the case because they consider Sunday law enforcement against the Jewish plaintiffs in the original litigations a serious infringement of their civil, religious and economic rights, the Jewish organizations submitting the brief declare that their concern extends beyond the interests of the particular parties.
“We would be concerned,” the brief asserts. “even if (the plaintiffs) were not Jews or observers of the seventh day of the week as Sabbath. It is our position that the principle of religious liberty is impaired if any person is penalized for his religious beliefs, or for not adhering to any religious belief, so long as he does not interfere with the rights of others or endanger the public peace or security.”
That the Sunday observance laws are religious laws “is hardly controvertible,” the brief says. This contention is supported by a review of the historical background of such law, going back to the first promulgation of a Sunday law by the emperor Constantine and tracing their evolution through European and Anglo-Saxon times and the American colonial period. Early Massachusetts and Pennsylvania statutes beginning with the time of the Massachusetts Bay Colony and William Penn are cited.
Recent attempts to interpret these laws as welfare measures, intended to ensure at least one day of rest in seven, the brief calls “unreal, bordering in fact upon the fictitious.” In support of this contention, it points out that:
1. The Massachusetts law still designates the day on which certain activities are forbidden not as Sunday, but as “the Lord’s Day.”
2. Both the Massachusetts and Pennsylvania laws permit sports events after one or two P. M. on Sunday. This limitation, the brief shows, is designed to “avoid competition with church services.”
3. “The Sunday laws do not in fact require anyone to rest on Sunday.” They merely forbid certain trades, businesses and occupation from being pursued on that day. Thus a person who works six days at an occupation forbidden on Sunday may work Sunday also at an occupation not forbidden.
4. A law concerned with health and welfare would not necessarily designate “the Lord’s Day” as the required day of rest. This is shown by the fact that both Massachusetts and Pennsylvania, as well as other states, have separate laws regulating the number of days and hours that persons may work in any one week.
SUNDAY LAWS HELD UNCONSTITUTIONAL EVEN AS WELFARE LAWS
However, even should the laws be deemed welfare laws and not essentially religious laws, the brief contends, they are still unconstitutional because they in effect penalize individuals whose religion requires them to observe some day other than Sunday as their Sabbath.
It dismisses as “cavalier” the ruling of a Massachusetts court that “anyone who deems another day more suitable for rest or worship may devote that day to the religious observance which he deems appropriate.” Such a “costly alternative” to conformance with the Sunday law constitutes virtual compulsion, the brief argues, since many small Sabbatarian merchants “are afforded only the choice of giving up their means of livelihood or compromising their religious convictions.”
This makes the law unconstitutional, the Jewish organizations maintain, under the First Amendment which, they assert, protects “the free, not the purchased exercise of religion.” Pointing out that the Supreme Court has twice declared unconstitutional the imposition of a license tax for preaching, the brief argues that “the financial sanction imposed by a state for observing a day other than Sunday as holy time is certainly more serious economically” than such a license fee and is therefore surely not less unconstitutional.