Red, white, but mostly blue: The validity of modern sunday closing laws under the establishment clause

Vanderbilt Law Review

Volumn 60, Issue 4, 2007, Pages 1273-1306

  Lawrence Hammer, Lesley ^a  

^a NONE

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EID: 38349070647     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (254)

1. Sunday restrictions were first called "blue laws" during the colonial period. DAVID N. LABAND & DEBORAH HENDRY HEINBUCH, BLUE LAWS: THE HISTORY, ECONOMICS, AND POLITICS OF SUNDAY-CLOSING LAWS 8 (1987). Some commentators assert that the term derives from the 1665 laws of the New Haven Colony, which were printed on blue paper. Id. However, other commentators argue that the term originates from the expression "true blue," a derogatory term for the Puritans that referred to their constant virtue and the strictness of their convictions. Id.
2. See BLACK'S LAW DICTIONARY 183 (8th ed. 2004) (defining blue laws as "statute[s] regulating or prohibiting commercial activity on Sundays"); LABAND & HEINBUCH, supra note 1, at 3 (describing blue laws as "laws that prohibit or restrict individuals from engaging in certain acts on Sunday"). Blue laws are also frequently referred to as "Sunday restrictions," "Sunday closing laws," or "Sunday statutes" and will be called such throughout this note. Id.
3. See McGowan v. Maryland, 366 U.S. 420, 431 (1961) (explaining that blue laws "go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century"). The Fourth Commandment states: Remember to observe the Sabbath day by keeping it holy. Six days a week are set apart for your daily duties and regular work, but the seventh day is a day of rest dedicated to the Lord your God. On that day no one in your household may do any kind of work. Exodus 20:8-10.
4. LABAND & HEINBUCH, supra note 1, at 48. Although Laband and Heinbuch originally made this observation in 1985, research performed in early 2006 and outlined infra in Part II.B proves their statement remains accurate today.
5. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I.
6. McGowan, 366 U.S. at 420.
7. Id. at 431, 452.
8. LABAND & HEINBUCH, supra note 1, at 9 (quoting Code Just. 3.12.3 (Constantine/321)).
9. Id. at 8-9.
10. Id. at 9-10 (quoting a proclamation from emperors Gratianus, Valentinianus, and Theodosius stating that "on the day of the sun, properly called the Lord's day" there should be no lawsuits, business, indictments, or debt collection, as such activities would violate "an institute and rite of holy religion").
11. See McGowan, 366 U.S. at 433 (finding that early "English Sunday legislation was in aid of the established church"); LABAND & HEINBUCH, supra note 1, at 10-29 (listing English Sabbath legislation passed between the fifth and seventeenth centuries). Blue laws were passed throughout England until as recently as 1950, with many remaining in effect today. Id. at 208.
12. See McGowan, 366 U.S. at 431-32 (describing Sunday restrictions passed from 1237 to the mid-seventeenth century by a variety of English rulers).
13. LABAND & HEINBUCH, supra note 1, at 30.
14. Id.
15. Id.
16. See WARREN L. JOHNS, DATELINE SUNDAY, U.S.A.: THE STORY OF THREE AND A HALF CENTURIES OF SUNDAY-LAW BATTLES IN AMERICA 6 (1967) (stating that most colonial blue laws were not punishable by death).
17. LABAND & HEINBUCH, supra note 1, at 38-39. Enforcement was so common that even newly elected President George Washington was stopped when traveling from Connecticut to New York for violating Connecticut's ban on Sunday travel. Id. at 38.
18. McGowan v. Maryland, 366 U.S. 420, 433 (1961).
19. LABAND & HEINBUCH, supra note 1, at 33-34.
20. McGowan, 366 U.S. at 432 (quoting The Sunday Observance Act, 1677, 29 Car. 2, c. 7 (Eng.)).
21. Id. (emphasis omitted).
22. Id.
23. Andrew J. King, Sunday Law in the Nineteenth Century, 64 ALB. L. REV. 675, 683 (2000).
24. McGowan, 366 U.S. at 434.
25. JOHNS, supra note 16, at 60.
26. King, supra note 23, at 683-84.
27. Id. at 684.
28. See id. at 684-85 (describing the campaign of Protestant ministers to overturn federal legislation allowing Sunday mail delivery and the temperance movement's focus on Sunday in the nineteenth century). Efforts to eliminate Sunday mail delivery succeeded in 1912. JOHNS, supra note 16, at 77.
29. See JOHNS, supra note 16, at 64-65 (describing typical Sunday laws in the 1930's and 1940's).
30. McGowan v. Maryland, 366 U.S. 420 (1961). See discussion infra Part III.A.
31. Alaska, Arizona, California, Florida, Hawaii, Montana, Nebraska, Nevada, New Mexico, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming have eliminated all non-alcohol related blue laws.
32. LABAND & HEINBUCH, supra note 1, at 48. Although Laband and Heinbuch based their observation on data from 1985, research performed in early 2006 and outlined in this section suggests their statement remains accurate today. Id. at 47.
33. See discussion infra Part IV.A.1.
34. See ALA. CODE §§ 13A-12-1 to 13A-12-2 (2006) (prohibiting any person from compelling another to "perform any labor on Sunday, except the customary domestic duties of daily necessity or comfort, or works of charity" or opening "[a]ny place where people assemble for the purchase and sale of goods, wares and merchandise, [or] provisions"); CONN. GEN. STAT. § 53-302a (2007) (stating that "[n]o person, firm or corporation shall engage in work, labor or business . . . on Sunday); KY. REV. STAT. ANN. § 436.160 (West 2006) (providing that "[a]ny person who works on Sunday . . . in labor or other business, whether for profit or amusement . . . shall be fined"); ME. REV. STAT. ANN. tit. 17, § 3204 (2006) (stating that "[a] person may not keep a place of business open to the public" on Sunday unless for "works of necessity, emergency, or charity"); MASS. GEN. LAWS ch. 136, § 5 (2007) (providing that "[w]hoever on Sunday keeps open his shop, warehouse, factory or other place of business, or sells foodstuffs, goods, wares, merchandise or real estate, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine"); N.H. REV. STAT. ANN. § 332-D:1 to D:2 (2006) (stating that "[n]o person shall do any work, business, or labor of his secular calling . . . on the first day of the week, commonly called the Lord's Day" or "keep his shop, warehouse, cellar, restaurant or workshop open"); N.Y. GEN. BUS. LAW § 5 (McKinney 2007) (prohibiting "[a]ll labor on Sunday" except "works of necessity and charity"); OKLA. STAT. ANN. tit. 21, § 908 (West 2006) (forbidding "[s]ervile labor, except works of necessity or charity" and "[a]ll manner of public selling . . . of any commodities"); W. VA. CODE § 61-10-25 (2007) (making it unlawful "for any person to engage in work, labor or business" on Sunday "except in household or other work of necessity or charity").
35. See MO. ANN. STAT. § 578.100 (West 2006) (prohibiting retail sale of motor vehicles, clothing, furniture, house wares, office supplies, appliances, hardware, tools, paints, building supplies, jewelry, silverware, watches, clocks, luggage, instruments, and musical recordings).
36. See N.D. CENT. CODE §§ 12.1-30-01 to 12.1-30-02 (2005) (making it a misdemeanor to "conduct business or labor for profit" or sale or rent a specific list of items before noon on Sunday); S.C. CODE ANN. §§ 53-1-5, 53-1-40, 53-1-60 (2006) (deeming it "unlawful for any person to engage in worldly work, labor, business of his ordinary calling or the selling . . . to the consumer any goods, wares or merchandise, excepting work of necessity or charity" before one-thirty p.m. on Sundays).
37. See ARK. CODE ANN. § 23-110-402 (2006) (prohibiting all Sunday horseracing unless approved by voters in the affected jurisdiction through referendum); 230 ILL. COMP. STAT. 5/19 (2006) (prohibiting all Sunday horseracing unless approved by voters in the affected jurisdiction through referendum); LA. REV. STAT. ANN. § 4:157 (2006) (prohibiting all Sunday racing unless approved by resolution or ordinance of the governing body of the affected jurisdiction); MD. CODE ANN., BUS. REG. § 11-504 (LexisNexis 2007) (prohibiting mile thoroughbred racing on Sunday before noon); ME. REV. STAT. ANN. tit. 17, § 3205 (2006) (allowing Sunday sports when approved by referendum of a city, "except boxing, horseracing, air circuses or wrestling"); N.H. REV. STAT. ANN. § 332-D:3 (2006) (prohibiting horseracing before "midday").
38. See CONN. GEN. STAT. § 14-164a (2007) (banning motor vehicle racing before noon on Sunday unless a permit is issued by the jurisdiction where the race will be held); TENN. CODE ANN. § 55-22-109 (2006) (prohibiting Sunday racing before noon or after six p.m.).
39. See ARK. CODE ANN. § 23-111-502 (2006) (prohibiting any dog racing on Sunday); N.H. REV. STAT. ANN. § 332-D:3 (2006) (prohibiting dog racing before "midday").
40. See CONN. GEN. STAT. § 26-73 (2007) (declaring Sunday "a closed season except for the purpose of trapping," although "[a]rtificially propagated birds . . . may be shot on Sundays on licensed private shooting preserves;" under discussion for amendment as of April 2007); MD. CODE ANN., NAT. RES. § 10-410 (LexisNexis 2007) (banning the hunting of game birds or mammals on Sunday unless the hunter uses state certified raptors, is part of an unarmed fox chase, or is hunting specific pen-reared game birds; under discussion for amendment as of April 2007); N.J. STAT. ANN. § 23:4-24 (West 2007) (banning hunting on Sunday unless hunting raccoon between midnight and sunrise or trapping fur-bearing animals; under discussion for amendment as of April 2007); N.C. GEN. STAT. § 103-2 (2006) (banning all hunting on Sunday unless in defense of one's property).
41. See N.J. STAT. ANN. § 50:2-11 (West 2007) (prohibiting any person from catching clams or oysters on Sunday unless they do so on Rarian Bay, Sandy Hook Bay, Shrewsbury River, or Navesink River); VA. CODE ANN. § 28.2-530 (2007) (prohibiting persons from taking oysters on Sunday unless not more than a bushel is taken for personal use by hand or the oysters are "cultured").
42. MICH. COMP. LAWS § 446.217 (2007).
43. See MD. CODE. ANN., CRIM. LAW § 13-606(e)(2) (LexisNexis 2007) (prohibiting bingo on Sundays in Baltimore county); N.J. STAT. ANN § 5:8-58 (West 2007) (banning "games of chance" unless allowed by a municipality's ordinance).
44. TENN. CODE ANN. § 7-51-1402 (2006).
45. See 625 ILL. COMP. STAT. 5/5-106 (2006);
46. LA. REV. STAT. ANN. § 51:193 (2006); ME. REV. STAT. ANN. tit. 17, § 3203 (2006); MD. CODE ANN., BUS. REG. § 18-101(d) (LexisNexis 2006) (banning Sunday sale of motor vehicles except in Howard, Montgomery, and Prince George counties); MICH. COMP. LAWS § 435.251 (2007); MINN. STAT. § 168.275 (2007) (under discussion for amendment as of April 2007); MO. ANN. STAT. § 578.120 (West 2006); OKLA. STAT. tit. 21, § 918 (2007); R.I. GEN. LAWS § 31-5-19 (2006)(under discussion for amendment as of April 2007).
47. E.g., TEX. ALCO. BEV. CODE ANN. § 105.01 (Vernon 2006) (under discussion for amendment as of April 2007).
48. See, e.g., CONN. GEN. STAT. § 30-91(d) (2007) (prohibiting Sunday sale of "alcoholic liquor in places operating under package store permits, drug store permits, manufacturer permits for beer or grocery store beer permits").
49. See, e.g., CAL. BUS. & PROF. CODE § 25633 (West 2007) (providing that no "manufacturer, winegrower, distilled spirits manufacturer's agent, rectifier, or wholesaler of any alcoholic beverage shall deliver . . . any alcoholic beverage to or for any person holding an on-sale or off-sale license on Sunday").
50. See, e.g., MINN. STAT. ANN. § 340A.504 (West 2007) (prohibiting sale of 3.2% malt liquor between two a.m. and ten a.m. on Sunday and "intoxicating liquor for consumption on the licensed premises" after two a.m. on Sunday unless dispensed from a hotel mini-bar or with food at a restaurant, club, bowling alley, or hotel that can seat at least thirty).
51. See MO. ANN. STAT. § 578.100 (West 2006) (allowing any county to exempt itself from the state Sunday restriction by adopting an ordinance after public hearing, and permitting counties or cities with a population over four hundred thousand to do the same by referendum); N.H. REV. STAT. ANN. § 332-D:4 (2006) (stating that nothing prevents "the governing body of any city or town from adopting bylaws and ordinances permitting and regulating retail business, plays, games, sports, and exhibitions on Sundays"); S.C. CODE ANN. § 53-1-160 (2006) (providing that "the county governing body may by ordinance suspend the application of the Sunday work prohibitions").
52. KY. REV. STAT. ANN. § 436.165 (West 2006). New Jersey maintains a ban on specific activities, including the sale of clothing, building materials, furniture, and home or business furnishings; however, a municipality must vote to opt into the statute by referendum. N.J. STAT. ANN. § 40A:64-1 to -2 (West 2005) (under discussion for amendment as of April 2007).
53. See, e.g., ARK. CODE ANN. § 3-3-210 (2006) (prohibiting the sale of "intoxicating alcoholic liquor" on Sunday unless approved by referendum of a city or county, in which case it can be sold after noon); IDAHO CODE ANN. § 23-307 to 308 (2007) (prohibiting Sunday sale or delivery of "any alcoholic liquor" unless approved by resolution of a county's board of commissioners).
54. KY. REV. STAT. ANN. § 436.165 (West 2006); N.H. REV. STAT. ANN. § 332-D:4 (2006).
55. See MISS. CODE. ANN. § 21-19-39 (2006) ("[T]he governing authorities of counties and municipalities may adopt . . . ordinances regulating, restricting and prohibiting the sale of goods and services at retail on the day of the week commonly called 'Sunday.' Such ordinances . . . may also regulate and restrict the hours during which such goods and services may be sold . . . ."). Interestingly, a city in Louisiana with a population greater than twenty-five thousand can regulate or prohibit the Sunday operation of bakeries, meat markets, and butcher shops, while any municipality in New Jersey can regulate the Sunday operation of beauty parlors. See LA. REV. STAT. ANN. § 33:4783 (2006); N.J. STAT. ANN. § 40:48-2.1 (West 2006).
56. This different treatment often manifests itself by region. For example, Sunday restrictions are much more common in the East and South than the West and Midwest. LABAND & HEINBUCH, supra note 1, at 48.
57. Id. at 136.
58. Id.
59. Id.
60. Megan Tench & Chase Davis, Bustling Stores Ask: What Blue Laws? Super 88 Says Warning Missed, BOSTON GLOBE, Nov. 25, 2005, at A1. Although it may seem strange to view a law prohibiting an activity on Thanksgiving as "blue," Thanksgiving is actually a religious holiday.
61. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2149 (1996) (explaining that "[t]he Thanksgiving holiday was unquestionably a religious holiday both at Plymouth Rock and when George Washington proclaimed the first American Thanksgiving," and that "the religious aspect . . . endures").
62. Tench & Davis, supra note 59.
63. Id.
64. Id.
65. Mac Daniel, Back and Blue: Largely Ignored, Puritan Laws Like 'Common Day of Rest' Revisited for the Holidays, BOSTON GLOBE, Dec. 4, 2005, at B1.
66. See, e.g., King, supra note 23, at 676 (claiming current blue laws are "a pale reminder of a time when legislation banned Sunday work, travel, and recreation").
67. Soon Hing v. Crowley, 113 U.S. 703 (1885).
68. Id. at 705, 710.
69. Id. at 710.
70. Gallagher v. Crown Kosher Super Market, Inc., 366 U.S. 617 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); Two Guys from Harrison-Allentown, Inc., v. McGinley, 366 U.S. 582 (1961); McGowan v. Maryland, 366 U.S. 420 (1961).
71. McGowan, 366 U.S. at 420.
72. Id. at 422-23.
73. Id. at 423.
74. Id. at 422.
75. Id. at 425-26.
76. Id. at 426.
77. Id.
78. Id. at 427-28.
79. Id. at 428.
80. Id. at 429.
81. Id. at 431.
82. Id.
83. Id. at 435.
84. Id. at 445.
85. Id.
86. Id. at 448.
87. Id.
88. Id. at 435.
89. Id. at 452.
90. Id.
91. Wholesome recreation was defined as "golf, tennis, boating, swimming, bowling, basketball, picnicking, shooting at inanimate targets or similar healthful or recreational exercises and activities." Two Guys from Harrison-Allentown, Inc., v. McGinley, 366 U.S. 582, 585 (1961).
92. Id.
93. Id. at 589-92.
94. Id. at 592-98.
95. Id. at 592, 594. Those traces included several provisions referring to Sunday as "the Lord's day" or "Sabbath Day." However, the Court found these lacked significance since the "traces that have remained are simply the result of legislative oversight in failing to remove them." Id. at 594.
96. Id. at 598.
97. Id. at 592 (stating that appellant lacks standing to allege "that the statute discriminates against certain religions").
98. Braunfeld v. Brown, 366 U.S. 599, 600-01 (1961).
99. Id. at 601-02.
100. Id. at 601.
101. Id.
102. Id. at 601-02.
103. Id. at 602.
104. Id. at 605.
105. Id. at 607.
106. Id. at 608.
107. Id. at 608-09. Today, many states have taken the Supreme Court's advice and enacted statutes that exempt those who celebrate a Saturday Sabbath from blue law prosecution; however, these statutes do not apply to those who do not observe a Sabbath. See CONN. GEN STAT. § 53-303 (2007) (exempting liability for a person who "conscientiously believes" in a Saturday Sabbath and "actually refrains from work, labor or business" on that day); 820 ILL. COMP. STAT. 140/4 (2006) (requiring employers to designate a day of rest for each employee that is to work on Sunday); KY. REV. STAT. ANN. § 436.160 (West 2006) (exempting from liability persons who observe as a Sabbath one day out of each seven days); ME. REV. STAT. ANN. tit. 17, § 3209 (2006) (exempting persons "conscientiously believing" in a Saturday Sabbath and "refraining from secular business and labor on that day" so long as they "do[] not disturb other persons"); MASS. GEN. LAWS ch. 136, § 6 (2007) (exempting, among other things, persons who observe a Saturday Sabbath and close all of their business located within the Commonwealth during that twenty-four hour period; under discussion for amendment as of April 2007); N.Y. GEN. BUS. LAW § 6 (McKinney 2007) (exempting persons who "uniformly keep[] another day of the week as holy time;" under discussion for amendment as of April 2007); N.D. CENT. CODE § 12.1-30-01 (2005) (exempting persons who close their place of business from midnight until noon on the day observed as the Sabbath); OKLA. STAT. tit. 21, § 909 (2007) (allowing as a defense that "the accused uniformly keeps another day of the week as holy time"); S.C. CODE ANN. § 53-1-40 (2006) (providing for a Saturday Sabbath defense only within Charleston County).
108. Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961).
109. Id. at 622-23.
110. Id. at 624, 627.
111. Id. at 630-31.
112. McGowan v. Maryland, 366 U.S. 420, 561 (1961) (Douglas, J., dissenting). Justice Frankfurter wrote a separate concurrence also applying to all four cases. Id. at 459 (Frankfurter, J., concurring).
113. Id. at 435 (majority opinion).
114. Id. at 572-73 (Douglas, J., dissenting).
115. Id. at 573 n. 6.
116. Id. at 565.
117. Id. at 576.
118. Id. at 577 (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)).
119. See discussion supra Part III.A.
120. See Lemon v. Kurtzman, 403 U.S. 602, 606 (1971) (holding that state statutes providing financial aid to religious schools were unconstitutional).
121. Id. at 612-13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
122. Id.
123. See Marc A. Stadtmauer, Remember the Sabbath? The New York Blue Laws and the Future of the Establishment Clause, 12 CARDOZO ARTS & ENT. L.J. 213, 227-28 (1994) (examining the constitutionality of New York's blue laws).
124. See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 1501 (5th ed. 2005) (noting that although the Lemon test "has not been formally repudiated by the Supreme Court [,] a majority of the justices sitting in 2005 have criticized it); Stadtmauer, supra note 121, at 226-27 (stating that the "Lemon test became the standard by which many cases were evaluated" but noting the "fairly scathing criticism" it has received from commentators and Supreme Court justices).
125. See Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting) (arguing that the Lemon test should be abandoned because it "has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results"); Lisa M. Kahle, Comment, Making "Lemon-Aid" from the Supreme Court's Lemon: Why Current Establishment Clause Jurisprudence Should be Replaced by a Modified Coercion Test, 42 SAN DIEGO L. REV. 349, 363 (claiming "all three prongs of the Lemon test contain inherent flaws that prevent the test from being practically workable in a satisfactory manner").
126. See Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting) (stating that "discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task").
127. Kahle, supra note 123, at 359-60.
128. KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 1547 (15th ed. 2004) (internal quotations omitted).
129. Id.
130. McCreary County v. ACLU, 545 U.S. 844 (2005) (holding that two Kentucky displays of the Ten Commandments violated the Establishment Clause).
131. Van Orden v. Perry, 545 U.S. 677 (2005) (holding that a Texas display of the Ten Commandments did not violate the Establishment Clause).
132. McCreary, 545 U.S. at 852.
133. Id. at 859-65.
134. Id. at 859-60.
135. Id.
136. Id. at 868-74.
137. Id. at 861.
138. Id. at 862-63.
139. Van Orden v. Perry, 545 U.S. 677 (2005).
140. Id. at 681.
141. Id.
142. Id.
143. Id. at 686.
144. See id. (stating that "[w]hatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence," it was inapplicable to the facts of this case).
145. Id. at 699 (Breyer, J., concurring).
146. Id. at 700.
147. Id. at 703-04.
148. Lynch v. Donnelly, 465 U.S. 668, 671 (1984). Throughout its opinion, the Supreme Court refers to the nativity scene by its formal name, crèche. Beyond the nativity scene itself, the display also included a Santa Claus house, sleigh, Christmas tree, carolers, elephant, teddy bear, and a "Seasons Greetings" banner. Id.
149. Id. at 679, 687.
150. Id. at 681.
151. Id. at 682. The other benefits and endorsements mentioned include spending public money on textbooks and transportation for students in church-sponsored schools, providing grants to church-sponsored colleges and universities, exempting church properties from certain taxes, allowing legislative prayers, allowing a release time program from religious training, and, notably, maintaining Sunday Closing Laws. Id. at 681-82.
152. Id. at 684.
153. See id. at 687 (O'Connor, J., concurring) (stating that she "write[s] separately to suggest a clarification of [the Court's] Establishment Clause doctrine").
154. Id. at 689.
155. See id. at 689-90 (finding no entanglement with religion and describing as the "central issue in this case" whether the city endorsed Christianity by displaying a nativity scene).
156. Id. at 690.
157. See id. at 688-90 (explaining that "[i]t has never been entirely clear . . . how the three parts of the [Lemon] test relate to the principles enshrined in the Establishment Clause").
158. Id. at 687.
159. Id. at 688.
160. Id. at 694.
161. Id. at 691.
162. Id. at 692.
163. Id. at 694.
164. County of Allegheny v. ACLU, 492 U.S. 573, 593-94 (1989). That majority included Justices Blackmun, Brennan, Marshall, Stevens, and O'Connor.
165. Id. at 578.
166. See id. at 580-81 (explaining that beyond the nativity scene, the display only included a fence, poinsettias, and two small evergreen trees).
167. Id. at 581-82.
168. Id. at 592.
169. Id. at 593.
170. Id. at 579.
171. Id. at 601.
172. See id. at 620 (explaining that "the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season"); id. at 637 (O'Connor, J., concurring) (finding that the city's display "had neither the purpose nor the effect of endorsing religion").
173. See id. at 616 (majority opinion) (finding by Blackmun that the menorah's purpose was to "recogniz[e] that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society"); id. at. 635-36 (O'Connor, J., concurring) (explaining that "a reasonable observer would . . . appreciate that the combined display is an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or nonbelief).
174. See id. at 637-38 (Brennan, J., concurring in part and dissenting in part) (labeling as unsound the premises Justice Blackmun relied on to reach his conclusion that no endorsement had occurred).
175. Id. at 655 (Kennedy, J., concurring in part and dissenting in part).
176. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 291 (2000) (holding that a policy allowing student-led prayer at public school football games was unconstitutional in part because it "involve[d] both perceived and actual endorsement of religion").
177. Lee v. Weisman, 505 U.S. 577, 587 (1992) (holding that allowing prayer at a public school graduation was unconstitutional).
178. Id. at 588; see also Engel v. Vitale, 370 U.S. 421, 431 (1962) (invalidating a school's practice of daily prayer because "[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain").
179. Lee, 505 U.S. at 586, 599.
180. Id. at 593.
181. Id.
182. Van Orden v. Perry, 545 U.S. 677, 692-98 (2005) (Thomas, J., concurring); see discussion supra Part III.B.1.
183. Id. at 693. Thomas explains that the constitutional framers understood establishment to involve legal coercion, like mandatory religious observance or payment of taxes supporting ministers. Id.
184. Id.
185. Lee v. Weisman, 505 U.S. 577, 587 (1992).
186. Van Orden, 545 U.S. at 693-94 (Thomas, J., concurring).
187. See Lee, 505 U.S. at 642 (Scalia, J., dissenting) (agreeing with the majority's use of the coercion test but finding it wrongly applied).
188. See discussion supra Part III.B.
189. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); see discussion supra Part III.B.1.
190. Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring); see discussion supra Part III.B.2.
191. Id. at 690; see discussion supra Part III.B.2
192. See Michele Hyndman, Tradition Is Not Law: Advocating a Single Determinative Test for Establishment Clause Cases, 31 T. MARSHALL L. REV. 101, 119-20 (2005) (explaining that, "[u]nder the coercion test, a court could find a government practice constitutional when the facts reveal that the purpose of the government practice was of a religious nature").
193. See Edwards v. Aguillard, 482 U.S. 578, 636-39 (1987) (Scalia, J., dissenting) (attacking the purpose prong of the Lemon test).
194. See Hyndman, supra note 190, at 119-20. Although Hyndman sees the coercion test's focus on effect as making it "drastically different" from the Lemon and endorsement tests, this Note views it as a factor that unifies the three tests. Id. at 119.
195. See McCreary County v. ACLU, 545 U.S. 844, 883 (2005) (O'Connor, J., concurring) (stating that "[t]he purpose behind the [Ten Commandments] display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer").
196. See Van Orden v. Perry, 545 U.S. 677, 694 (2005) (Thomas, J., concurring) (explaining that "the mere presence of the monument along [Van Orden's] path involves no coercion and thus does not violate the Establishment Clause" because "[i]n no sense does Texas compel [him] to do anything").
197. See discussion supra Part III.B.1-2. Although the endorsement test requires that the government cannot have the purpose of "endorsing" religion, the consideration is sufficiently synonymous to Lemon's "secular purpose" prong to justify using the terms interchangeably. See discussion supra Part III.C.
198. McGowan v. Maryland, 366 U.S. 420 (1961); see discussion supra Part III.A.
199. McGowan, 366 U.S. at 435, 445.
200. Id. at 448.
201. Id. at 422-23.
202. Id. at 423.
203. Id. at 424.
204. Id. at 426.
205. See LABAND & HEINBUCH, supra note 1, at 48 (explaining that exceptions to Sunday restrictions "have been granted to special interest groups with strong enough lobbying influence in the corridors of the state capital [sic]").
206. S.C. CODE ANN. §§ 53-1-5, 53-1-40 (2006).
207. Id. § 53-1-100.
208. Id. § 53-1-110.
209. Id. §§ 53-1-40, 53-1-130.
210. Id. § 53-1-150.
211. Id.
212. ME. REV. STAT. ANN. tit. 17, § 3204 (2006).
213. Id. § 3204 (1)(A)(2).
214. W. VA. CODE § 61-10-25 (2007).
215. Id. § 61-10-26.
216. N.J. STAT. ANN. § 50:2-11 (West 2007).
217. CONN. GEN. STAT. § 30-91(a)(4) (2007).
218. Id. § 30-91(b).
219. See COLO. REV. STAT. § 12-47-901 (2006) (prohibiting the Sunday sale of "malt, vinous, or spirituous liquors . . . except that, for a limited winery or vintner's restaurant licensee, sales of vinous liquors in sealed containers or by the glass shall be permitted on Sunday beginning at 8 a.m. until 12 midnight"); DEL. CODE ANN. tit. 4, § 512A(1) (2007) (exempting from the Sunday prohibition on alcohol sales wineries or farm wineries, although sales can only occur from noon until six p.m.).
220. Jaime Sarrio, Liquor Stores Close Doors for New Year's Eve Sunday, TENNESSEAN, Dec. 27, 2006, at 1A, available at http://www.tennessean.com/apps/pbcs.dll/article?AID=/20061227/ NEWS01/612270417.
221. Id.
222. Id.
223. See TENN. CODE ANN. § 57-5-301 (2006) (allowing for limited sale of beer and other alcoholic beverages containing less than five percent alcohol).
224. See id. § 57-3-101 (defining "alcoholic beverage" to include "alcohol, spirits, liquor, [and] wine" other than beer; "under discussion for amendment as of April 2007); id. § 57-3-406 (prohibiting the retail sale of "alcoholic beverages" between eleven p.m. on Saturday and eight a.m. on Monday).
225. See Fresh Thinking on Sunday Sales, MEMPHIS COM. APPEAL, Dec. 11, 2005, at V6 (explaining that liquor is not sold in Tennessee on Sunday because of the lobbying pressure of liquor wholesalers, who see the system as keeping prices high, and beer distributors, who like reduced competition).
226. Such interference with the marketplace is why many free-market economists oppose blue laws. See JOHNS, supra note 16, at 217 (explaining that "the arbitrary restraint on commerce and competition demanded by Sunday-observance laws mock free enterprise"); LABAND & HEINBUCH, supra note 1, at 4 (explaining that Laband, as a free-market economist, had to overcome his own bias towards blue laws because of their interference with the marketplace).
227. See ME. REV. STAT. ANN. tit. 17, § 3201 (2006) (defining the "Lord's Day" to include "the time between 12 o'clock on Saturday night and 12 o'clock on Sunday night" in a subchapter entitled "Holy Days"); N.H. REV. STAT. ANN. § 332-D:1 (2006) (prohibiting "work, business, or labor . . . on the first day of the week commonly called the Lord's Day").
228. See N.Y. GEN. BUS. LAW § 2 (McKinney 2007) (explaining why activities are prohibited on "[t]he first day of the week" in a section entitled "The Sabbath"; under discussion for amendment as of April 2007).
229. OKLA. STAT. tit. 21, § 907 (2007).
230. Id.; N.Y. GEN. BUS. LAW § 3 (McKinney 2007).
231. Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 594 (1961).
232. McGowan v. Maryland, 366 U.S. 420, 424 (1961).
233. See TENN. CODE ANN. § 55-22-109 (2006) (forbidding automobile racing on Sunday unless it occurs after noon).
234. See 18 PA. CONS. STAT. ANN. § 7105 (West 2006) (prohibiting operation of public pool or billiard rooms on Sunday unless in a city of the first class, when the establishment can open after one p.m.).
235. See supra notes 37, 39 and accompanying text.
236. See 4 PA. CONS. STAT. ANN. §§ 82, 152, 182 (West 2006) (prohibiting (1) baseball or football between two p.m. and six p.m. on Sunday unless approved by voters in the effected municipality, (2) polo before one p.m. if voters in the effected municipality voted against allowing it, and (3) tennis games that charge admission before one p.m. regardless of what the effected municipality wants).
237. See supra note 40 and accompanying text.
238. See supra note 43 and accompanying text.
239. See Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 595 (1961) (explaining that allowing recreational exercises on Sunday is inconsistent with aiding church attendance).
240. See KY. REV. STAT. ANN. § 436.165 (West 2006) (allowing municipalities to regulate retail sales on Sunday as long as those sales do not occur between six a.m. and noon); MICH. COMP. LAWS § 436.2113 (2007) (providing that a county legislative body or municipality by referendum can allow "spirits and mixed spirit drink" to be sold on Sunday for on-site consumption, presuming such consumption occurs after noon); NEB. REV. STAT. § 53-179 (2006) (allowing a city or county to permit the sale of liquor on Sunday, but not between six a.m. and noon); N.D. CENT. CODE §§ 12.1-30-01 to 12.1-30-02 (2005) (making it a misdemeanor to "conduct business or labor for profit" or sale or rent a specific list of items before noon on Sunday); S.C. CODE ANN. §§ 53-1-5, 53-1-40, 53-1-60 (2006) (deeming it "unlawful for any person to engage in worldly work, labor, business of his ordinary calling or the selling . . . to the consumer any goods, wares, or merchandise . . . excepting work of necessity or charity" before one-thirty p.m. on Sundays).
241. See discussion supra Part III.A.
242. See discussion supra Part III.B.1-2.
243. See discussion supra Part III.B.3.
244. McGowan v. Maryland, 366 U.S. 420, 565 (1961) (Douglas, J., dissenting).
245. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring) (explaining that "an affirmative answer to either [Lemon's purpose or effect inquires] should render the challenged practice invalid" when applying the endorsement test).
246. Lee v. Weisman, 505 U.S. 577, 593 (1992); see also discussion supra Part III.B.3.
247. Lee, 505 U.S. at 587.
248. Exodus 20:8-10.
249. See Stadtmauer, supra note 121, at 214 (stating that "[f]ew laws illustrate the contention that America is a Christian nation more vividly than the 'Blue Laws'").
250. McGowan v. Maryland, 366 U.S. 420, 564 (1961) (Douglas, J., dissenting).
251. TEX. LAB. CODE ANN. § 52.001 (Veron 2006).
252. McGowan, 366 U.S. at 450.
253. Exodus 20:8.
254. McGowan, 366 U.S. at 453.