McGowan v. Maryland (1961)
Supreme Court Decisions on Religious Liberty
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Background Information
This case involved the question of what sort of business - if any business at all - could be conducted on Sundays. At the time, Maryland's laws were typical of those found around the country and were not particularly onerous. Generally speaking, businesses were to be closed on Sundays.
However, following a precendent which existed as early as the days of Emperor Constantine, some exceptions existed - for example with occupations of necessity or charity. These included occupations like hospital personnel and police.
The selling of certain items was also excepted. At the time, he accepted items included: tobacco products, confectioneries, milk, bread, fruit, gasoline, oils, greases, drugs, medicines, newspapers, and periodicals.
Employees of a Mayrland department store were fined for selling items on Sunday that were not included expresly permitted for Sunday sales: a notebook, a can of floor wax, a stapler and staples, and a toy submarine. With the advent of large department stores which sold such a wide variety of products, such violations were becoming more common.
The employees claimed that the laws violated the Equal Protection and Due Process Clauses because they were based on specific religious beliefs and compelled at least minimal observance of the Christian day of worship - at least the day recognized by most Christian denominations.
Court Decision
The Supreme Court, with Chief Justice Warren writing the majority opinion, ruled that Maryland's Sunday closing laws now had secular purposes and therefore did not violate the Establishment Clause.
The Court used primarily an argument from history - although the original Sunday closing laws were religious in orientation and designed to protect the Christian day of worship from profanation and distracting activities, at least since the eighteenth century nonreligious arguments were being used to support such laws.
Such secular arguments included the idea that it was desirable and healthy for the government to encourage people to take a day off each week for rest and relaxation. The laws had, in effect, become social-welfare legislation. These benefits could not be achieved if Maryland allowed people to select on their own one day each week to set aside their work.
In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.
Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and state.
In addition, the petitioners used the religious freedom argument but alleged only economic harm rather than an infringement on their own religious beliefs. Because they did not mention their own religious beliefs, they did not have standing to make a religious liberty argument. To rule on the Establishment argument, the Court had to determine if these laws that were instituted for religious reasons retain their religious character.
The Court did not, however, explain how and why the prohibition of the sale of specific items managed to fulfill any of the alleged secular goals they said the Sunday Closing Laws had.
Justice Douglas dissented strongly, writing:
I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.
The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish - whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind government must be neutral. This freedom plainly includes freedom from religion with the right to believe, speak, write, publish and advocate antireligious programs.
We said in Everson v. Board of Education, that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.
It seems to me plain that by these laws the States compel one, under sanction of law, to refrain from work or recreation on Sunday because of the majority's religious views about that day. The State by law makes Sunday a symbol of respect or adherence. Refraining from work or recreation in deference to the majority's religious feelings about Sunday is within every person's choice. By what authority can government compel it?
Here it can be seen that he attempts to explain, very clearly, that an idea based only on religion and deriving only from religious tradition cannot suddenly be masked as a secular regulation. He furthermore emphasis the idea that the government must remain neutral in the area of religion, including the fact that freedom of religion includes the concept of freedom from religion.
Significance
This decision permited laws with religious origins to continue, but only if the government can effectively argue that they now have a secular purpose.
These Sunday closing laws, in the opinion of the Court, had evolved into constitutionally acceptable laws because of the ways that they are viewed by those who advocate them. But how, exactly, that happened remains a mystery.
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