p. 20 | Untitled article by Jas. T. Ringgold

Pacific Press Publishing Company · New York · January 19, 1893

Sunday Laws in the United States.

By Jas. T. Ringgold

[We reprint the following article, written by Jas. T. Ringgold, member of the Baltimore Bar and author of “The Law of Sunday,” by permission of the publishers of the American Law Register and Review, of Philadelphia, a magazine which, under its new and able management, is rapidly coming to the front among the leading periodicals of the country. The Register and Review now wisely deals with many questions of broad and general interest, besides paying due attention to topics of technical value to the legal profession.]

The constitutionality and the construction of “Sunday laws” have been considered by the courts of this country in nearly one thousand cases. So far as the mere weight of authority can settle anything, it is settled that such laws are valid under the Federal Constitution, and under the constitution of every State in which their validity has been contested.

There are traces of a union of Church and State elsewhere in the body of American law (as in statutes against blasphemy, qualifications required of witnesses, etc.), but Sunday laws are by far the most conspicuous portion of this inheritance of ours from the English form of government.

To say that Sunday laws represent a union of Church and State, and that the weight of authority sustains such laws in the United States, may sound to some like an impeachment of our judiciary, because the absolute separation of the two is commonly regarded as an axiom of American politics. Yet both propositions are demonstrable.

The second, of course, is established by a mere counting of the cases. The reading of them is enough to establish the first.† Occasionally an objection is made to Sunday laws as interfering with the rights of property, etc. But in every case their constitutionality has been assailed, and in most cases it has been exclusively assailed on the ground that they are infringements of religious liberty. And not one of the judges who have sustained them on other than religious grounds has ever ventured the assertion that they are passed, or that their enforcement is asked for, on any other ground than these. And a statute which is passed or the enforcement of which is asked for on religious grounds, represents a union of Church and State, pro tanto, no matter what other grounds the courts may allege for its enforcement.

It is difficult to formulate a general statement in American constitutional law, outside of the Federal system, because the language of the State constitutions differs widely, and the language of the statutes on any particular subject is equally at variance. The force of this proposition is lessened, but it is by no means nullified, by the interesting fact discovered and noted by Mr. Stimson (see the preface to his invaluable “American Statute Law”), that there are in the Union “streams of legislation,” that is to say, groups of States (of which he finds three, with some anomalies) whose legislation follows a uniform line, different from that followed by States of another group.

One of Mr. Stimson’s “streams of legislation” is followed by twenty-nine States, whose constitutions declare in substance that no “preference” shall be given by law to one religious sect over another. If we admit that there is a like intent inspiring the somewhat diversified phraseology of the provisions for “religious equality,” etc., in States outside of this stream—as we must admit, unless we are prepared to admit that a union of Church and State may be effected in such States—then we may frame this general statement regarding Sunday laws, as the result of the decisions to date: It is concluded that they would be invalid in any State, if they gave a “preference” to one religion over another, and it is denied that they give any such preference.

The constitutionality of a statute may be regarded from two standpoints—that of its design, and that of its effect. “Design” here must not be confounded with “motive.” The legislature may be influenced by corrupt motives in the accomplishment of a design within its constitutional authority. Nothing is better settled than that upon this consideration the court will never enter. But suppose the legislature, by no means corruptly, but in all honesty and sincerity aims at the accomplishment of a design which it is forbidden by the constitution to accomplish. And let us strengthen the case by assuming that if the statute passed with such an aim is sustained by the courts, the result will be the accomplishment of the unconstitutional design. Are the courts justified in sustaining the statute merely because some other purpose is incidentally effected, at which the legislature might constitutionally have aimed?

Now religion concerns itself with two things, belief and conduct, and the distinction between one religion and another is two-fold—one requires a certain belief and certain conduct which the other forbids or does not require. Hence, it is not enough to say concerning the Sunday law: “What religion or religious creed or dogma is inculcated in that statute? Or what religion is prohibited? . . . Does it ask that any citizen shall believe in the God of the Bible or its teachings, or the doctrines of the Bible, the Koran or of Confucius, or the Talmud, or the Old or New Testament? Certainly not”—because, though no religious creed or dogma be inculcated, yet a “preference” may be given by a statute to one religion over another by the mere regulation of conduct. And this preference is given whenever conduct is regulated on religious grounds, according to the special prescription of any religious sect, or when the design of a statute is to punish an offense against religion as such. That Sunday laws do embody the prescription of a certain sect for the “observance” of that day is indisputable. Are they passed on religious grounds? Are they designed to punish offenses against religion as such? Blackstone classifies them with the provisions against “apostasy,” “heresy,” “non-conformity,” and the like, all of which things he calls, “Offenses against God and religion.”

This classification is followed in the “Codes” and Digests of Statutes of nearly every State and Territory in the Union. In dealing with the Sunday laws, the courts uniformly allude to them as provisions against “profanation” or “desecration.” But only a sacred thing can be profaned or desecrated; and whether a thing be sacred or not is altogether a matter of religion. So that to punish profanation or desecration is to punish an offense against religion as such.

That Sunday laws are passed on religious grounds is perfectly well known to every reasonable person. Mr. Tiedeman correctly says: “The most common form of legal interference in matters of religion is that which requires the observance of Sunday as a holy day. In these days the legal requirements do not usually extend beyond the compulsory cessation of labor, the maintenance of quiet upon the streets and the closing of all the places of amusements; but the public spirit which calls for the compulsory observance of these regulations, is the same, which in the colonial days of New England, imposed a fine for an unexcused absence from divine worship. Although other reasons have been assigned for the State regulation of the observance of Sunday in order to escape the constitutional objections that can be raised against it if it takes the form of a religious institution, those who are most active in securing the enforcement of the Sunday laws do so because of the religious character of the day, and not for any economical reason.”

“The effectiveness of the laws is measured by the influence of the Christian idea of Sunday as a religious institution.” So says Judge Cooley: “It is clear that these laws are supportable on authority notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week.” And what is this but saying, and saying with perfect correctness, that Sunday laws simply embody the views of those who do recognize the “sacred” character of the first day of the week, and are therefore passed on religious grounds alone? “The Jew,” says Judge Cooley in a previous paragraph, “may plausibly urge that the law discriminates against his religion, and, by forcing him to keep a second Sabbath in each week unjustly, though by indirection, punishes him for his belief.” Why “plausibly”? Is not the discrimination perfectly plain? May it not be conclusively urged?

(To be continued.)