Sunday, July 29, 2012

Can Communities Enact Sunday Closing Ordinances?

Book cover of The True-Blue Laws of Connecticut and New Haven and the False Blue-Laws Invented by the Rev Samuel PetersAn issue that has come up in our community, Highland, Utah, regarding the a city ordinance that precluded businesses being open on Sunday (these types of laws and ordinances are often referred to as Blue Laws). The issue arose because of a challenge with the city budget. The rationale for removing the restriction was it would help the city attract new businesses thus raising additional sales tax revenues. The city council, after much discussion with the residents, passed an ordinance which eliminates the community day of rest.

Personally, I am opposed to the change but I have respected friends who are supportive of it. While the concept of a shared community day of rest coincides with one of the 10 Commandments, the adoption of Sunday business restrictions is no more “enforced religion” than laws that prohibit stealing, lying (perjury), or killing, each of which are also one of the 10 Commandments.

Before we get into a lengthy discussion on the matter (see Can Communities Enact Sunday Closing Ordinances – Part II?) let’s get some facts on the table:

  1. Are ordinances restricting business operations Constitutional?

    Yes, at least according to a 1961 ruling by the U.S Supreme Court. They found 8 to 1 in McGowan v. Maryland that laws and ordinances which restrict business operations on Sunday are NOT unconstitutional. The U.S. Supreme Court has made at least 3 other rulings upholding Sunday closing.
  2. Are municipalities within Utah allowed to enact ordinances that affect businesses within their community; including those that restrict when businesses can operate.

    Yes. Utah Code Title 10 “Utah Municipal Code” Section 102 “Municipal Land, Use, Development and Management Act” states the following:

“(1) The purposes of this chapter are to provide for the health, safety, and welfare, and promote the prosperity, improve the morals, peace and good order, comfort, convenience, and aesthetics of each municipality and its present and future inhabitants and businesses, to protect the tax base, to secure economy in governmental expenditures, to foster the state's agricultural and other industries, to protect both urban and nonurban development, to protect and ensure access to sunlight for solar energy devices, to provide fundamental fairness in land use regulation, and to protect property values.

”(2) To accomplish the purposes of this chapter, municipalities may enact all ordinances, resolutions, and rules and may enter into other forms of land use controls and development agreements that they consider necessary or appropriate for the use and development of land within the municipality, including ordinances, resolutions, rules, restrictive covenants, easements, and development agreements governing uses, density, open spaces, structures, buildings, energy efficiency, light and air, air quality, transportation and public or alternative transportation, infrastructure, street and building orientation and width requirements, public facilities, fundamental fairness in land use regulation, considerations of surrounding land uses and the balance of the foregoing purposes with a landowner's private property interests, height and location of vegetation, trees, and landscaping, unless expressly prohibited by law.”

Clearly ordinances enacted that restrict business operations on Sunday fall within the guidelines listed above.

  1. What would the Founders think about regulating Sunday business.

    In 1786 Virginia passed “An Act for Establishing Religious Freedom.” This statute, originally drafted by Thomas Jefferson in 1779 and then later with the assistance of James Madison it was passed in 1786. This “act” forbade Virginia from collecting taxes to be used to pay religious teachers. In 1785 Madison introduced another bill drafted by Jefferson entitled “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers” which includes the following language:

    If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence." 
    Source: The Papers of Thomas Jefferson, University of Virginia Press (Rotunda)

    In Chief Justice Warren’s opinion of the court in the McGowen v. Madision case he notes the following:

    ”In 1799, Virginia pronounced ‘An act for establishing religious freedom’ as ‘a true exposition of the principles of the bill of rights and constitution, and repealed all subsequently enacted legislation deemed inconsistent with it. Virginia's statute banning Sunday labor stood.”

    Not only were there Sunday business restrictions in Virginia but the other 12 original states (see item 4 below) had them as well. Both pre and post Constitution. This means that a majority the legislatures in each state and the governors worked together to enact such legislation—the very people who were alive during the revolution, some of whom fought in it and some of whom were considers founding fathers.
  2. Below is some interesting information from the Appendix I of Justice Frankfurter’s concurring opinion in the McGowen v. Madison case. You will note that Sunday laws long preceded the Constitution and remained in effect afterwards. That is to say those that were closest to the Founders or were Founders themselves, fought in the revolution and were in a place to understand “original intent" kept those laws in place.



    New Haven Colony:

    1656: Prophanation of the Lord's Day, New Haven's Settling in New England. And Some Laws for Government (1656), reprinted in Hinman, The Blue Laws (1838), 132, 206.

    See also Prince, An Examination of Peters' "Blue Laws," H. R. Doc. No. 295, 55th Cong., 3d Sess. 95, 109, 113-114, 123-125.

    Connecticut Colony:

    1668: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852), 88 (traveling, playing).

    1672: Prophanation of the Sabbath, Laws of Connecticut, 1673 (Brinley reprint 1865), 58.

    1676: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852), 280. [366 U.S. 420, 544]

    See An Act for the due Observation, and keeping the Sabbath, or Lord's Day; and for Preventing, and Punishing Disorders, and Prophaneness on the same, Acts and Laws of His Majesty's English Colony of Connecticut in New-England (1750), 139; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1784), 213; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1796), 368.


    1740: An Act to prevent the Breach of the Lord's Day commonly called Sunday, Laws of the Government of New-Castle, Kent and Sussex Upon Delaware (1741), 121.

    1795: An Act more effectually to prevent the profanation of the Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700-1797 (1797), 1209.


    1762: An Act For preventing and punishing Vice, Profaneness, and Immorality, and for keeping holy the Lord's Day, commonly called Sunday, Acts Passed by the General Assembly of Georgia, 1761-1762 (ca. 1763), 10.

    See Marbury and Crawford, Digest of the Laws of Georgia, 1755-1800 (1802), 410.


    1649: An Act concerning Religion, 1 Archives of Maryland (Proceedings and Acts of the General Assembly), 1637/8-1664 (1883), 244.

    1654: Concerning the Sabboth Day, id., at 343.

    1674: An Act against the Prophaning of the Sabbath day, 2 Archives of Maryland (Proceedings and Acts of [366 U.S. 420, 545] the General Assembly), 1666-1676 (1884), 414 (innkeepers).

    1692: An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province, 13 Archives of Maryland (Proceedings and Acts of the General Assembly), 1684-1692 (1894), 425.

    1696: An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday, 19 Archives of Maryland (Proceedings and Acts of the General Assembly), 1693-1697 (1899), 418.

    1723: An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers . . ., Bacon, Laws of Maryland (1765), Sf2.

    See 1 Dorsey, General Public Statutory Law of Maryland, 1692-1839 (1840), 65.


    Plymouth Colony:

    1650: Prophanacon the Lord's Day, Compact with the Charter and Laws of the Colony of New Plymouth (1836), 92.

    1658: Id., at 113 (traveling).

    1671: General Laws of New Plimouth, c. III, 9, 10 (1672), in id., at 247.

    Massachusetts Bay Colony:

    1653: Sabbath, Colonial Laws of Massachusetts (reprinted from the edition of 1672 with the supplements through 1686) (1887), 132 (traveling, sporting, drinking).

    1668: For the better Prevention of the Breach of the Sabbath, id., at 134.

    1692: An Act for the better Observation and Keeping the Lord's Day, Acts and Laws of His Majesty's Province [366 U.S. 420, 546] of the Massachusetts-Bay in New-England, in Charter of the Province of the Massachusetts-Bay in New-England (1759 [sic]), 13.

    1761: An Act for Repealing the several Laws now in Force which relate to the Observation of the Lord's-Day, and for making more effectual Provision for the due Observation thereof, id., at 392.

    1782: An Act for Making More Effectual Provision for the Due Observation of the Lord's Day . . ., Acts and Laws of Massachusetts, 1782 (reprinted 1890), 63.

    1792: An Act providing for the due Observation of the Lord's Day, 2 Laws of Massachusetts, 1780-1800 (1801), 536.

    See also the act of 1629 set forth in Blakely, American State Papers on Freedom in Religion (4th rev. ed. 1949), at 29-30.


    1700: An Act for the better Observation and Keeping the Lords Day, Acts and Laws Passed by the General Court of His Majesties Province of New-Hampshire in New-England, 1726 (reprinted 1886), 7.

    1715: An Act for the Inspecting, and Supressing of Disorders in Licensed Houses, id., at 57 (innkeepers).

    1785: An Act for the Better Observation and Keeping the Lords Day, 5 Laws of New Hampshire (First Constitutional Period), 1784-1792 (1916), 75.

    1789: An Act for the better Observation of the Lord's day . . ., id., at 372.

    1799: An Act for the better observation of the Lords day . . ., 6 Laws of New Hampshire (Second Constitutional Period), 1792-1801 (1917), 592. [366 U.S. 420, 547]


    1675: Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New-Jersey with the Acts Passed during the Proprietary Governments (ca. 1752), 98.

    1683: Against prophaning the Lord's Day, id., at 245.

    1693: An Act for preventing Profanation of the Lords Day, id., at 519.

    1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of the General Assembly of the Province of New Jersey, 1703-1752 (1752), 3.

    1790: An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . ., Acts of the Fourteenth General Assembly of the State of New Jersey, c. 311 (1790), 619.

    1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800), 329.


    1685: A Bill against Sabbath breaking, 1 Colonial Laws of New York, 1664-1775 (1894), 173.

    1695: An Act against profanation of the Lords Day, called Sunday, id., at 356.

    1788: An Act for suppressing immorality, Laws of New York, 1785-1788 (1886), 679.


    1741: An Act for the better observation and keeping of the Lord's day, commonly called Sunday; and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142. [366 U.S. 420, 548]


    1682: The Great Law or The Body of Laws, in Charter and Laws of the Province of Pennsylvania, 1682-1700 (with the Duke of Yorke's Book of Laws, 1676-1682) (1879), 107.

    1690: The Law Concerning Liberty of Conscience (A Petition of Right, First Law), id., at 192.

    1700: The Law Concerning Liberty of Conscience, 2 Statutes at Large of Pennsylvania (1896), 3.

    1705: An Act to Restrain People from Labor on the First Day of the Week, id., at 175.

    1779: An Act for the Suppression of Vice and Immorality, 9 Statutes at Large of Pennsylvania (1903), 333.

    1786: An Act for the Prevention of Vice and Immorality . . ., 12 Statutes at Large of Pennsylvania (1906), 313.

    1794: An Act for the Prevention of Vice and Immorality . . ., 15 Statutes at Large of Pennsylvania (1911), 110.


    1673: 2 Records of the Colony of Rhode Island and Providence Plantations, 1664-1677 (1857), 503 (alcoholic beverages).

    1679: 3 Records of the Colony of Rhode Island and Providence Plantations, 1678-1706 (1858), 30 (employing servants).

    1679: An Act Prohibiting Sports and Labours on the First Day of the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island and Providence-Plantations (1730), 27. [366 U.S. 420, 549]

    1784: Rhode Island Acts and Resolves, Aug. 1784 (1784), 9 (excepting members of Sabbatarian societies; but exception does not extend to opening shops, to mechanical work in compact places, etc.).

    1798: An Act prohibiting Sports and Labour on the first Day of the Week, Public Laws of Rhode-Island and Providence Plantations (1798), 577.


    1692: An Act for the better Observance of the Lord's Day, commonly called Sunday, 2 Statutes at Large of South Carolina (1837), 74.

    1712: An Act for the better observation of the Lord's Day, commonly called Sunday, id., at 396.

    See Grimke, Public Laws of South-Carolina (1790), 19.


    1610: For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10 (gaming).

    1629: 1 Hening, Statutes of Virginia (1823), 144.

    1642-1643: Id., at 261 (traveling, shooting).

    1657: The Sabboth to bee kept holy, id., at 434 (traveling, shooting, lading).

    1661-1662: Sundays not to bee profaned, 2 Hening, Statutes of Virginia (1823), 48.

    1691: An act for the more effectual suppressing the severall sins and offences of swaring, cursing, profaineing Gods holy name, Sabbath abuseing, drunkenness, fornication, and adultery, 3 Hening, Statutes of Virginia (1823), 71. [366 U.S. 420, 550]

    1705: An act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons, id., at 358.

    1786: An act for punishing disturbers of Religious Worship and Sabbath breakers, 12 Hening, Statutes of Virginia (1823), 336.

    In some of the Colonies the English Sunday laws were also in effect. See, e.g., Martin, Collection of the Statutes of England in Force in North-Carolina (1792), 379. [366 U.S. 420, 551]

  3. Since a large percentage of Highland is LDS it is interesting to note that the the Nauvoo charter included the follow in sections 11 & 12. “

    Sec. 11. The City Council shall have power and authority to make, ordain, establish and execute all such ordinances, not repugnant to the Constitution of the United States or of this State, as they may deem necessary for the peace, benefit, good order, regulation, convenience, and cleanliness of said city: for the protection of property therein from destruction by fire, or otherwise, and for the health and happiness thereof: … to impose such fines, not exceeding one hundred dollars, for each offense, as they may deem just, for refusing to accept any office under the corporation, or for misconduct therein; … .

    Sec. 12. To license, tax, and regulate auctions, merchants, retailers, grocers, hawkers, peddlers, butchers, pawnbrokers, and money-changers.

    This charter clearly gives the city council the ability to create regulations the put limits on business activities within the city.

Please let me know of other relevant items and I’ll add them to the list.

See also: Can Communities Enact Sunday Closing Ordinances – Part II.

Note, to see a list of all posts the Sunday Opening issue click here.

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