Ari Armstrong, the Software Nerd, and Gus Van Horn have recently discussed so-​​called “Blue Laws.”

Ari discusses the Denver Post’s editorial support for a Colorado legislative push to overturn that state’s Sunday alcohol sales prohibitions.

Software Nerd mentions the Supreme Court’s decision in Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961). Gallagher is one of three cases on Blue Laws (specif­i­cally Sunday Closing laws, requiring certain busi­nesses to close on Sundays, often including alcohol and liquor retailers), decided on the same day in 1961. Gallagher and Braunfeld v. Brown, 366 U.S. 599 (1961) both concern Blue Laws as applied to Orthodox Jews, whose claims are based on the Equal Protection, Establishment, and Free Exercise Clauses. McGowan v. Maryland, 366 U.S. 420 (1961), however, is slightly different, also making an argument that Blue Laws are void for vagueness, and thus violative of Due Process. McGowan is the most cited case, because the religious beliefs of the chal­lengers were not the basis of their claims. McGowan is the controlling law, at least from a Due Process standpoint.

The main problem here is the Court’s view of what consti­tutes a “legit­imate” state interest. Under due process analysis, whether we apply “strict scrutiny” or “rational basis,” the state law has to advance a “legit­imate” state interest. Unfortunately, “legit­imate” is not refer­enced to reality. It means “legit­imate” within the system, not objec­tively legit­imate. In short, this means that a state law serves a legit­imate state interest if it is not explicitly denied to the states by the consti­tution. Health, safety, welfare, and morals (sometimes called the “police power”) are “legit­imate” state interests. (Morals are no longer alone suffi­cient to establish legit­imacy of an interest. See Lawrence v. Texas, 539 U.S. 558 (2003).)

Even though a statute advances a legit­imate state interest, it can still be uncon­sti­tu­tional. The best cases (from a current consti­tu­tional jurispru­dence stand­point, that is) for uncon­sti­tu­tion­ality of the Blue Laws are Due Process (strict scrutiny) and Establishment (the Lemon test). Unfortunately, neither of these concepts were available at the time. Strict scrutiny was new and disfa­vored in 1961, and the Lemon test turned up a decade too late. The Court’s decisions in Gallagher, Braunfeld, and McGowan were entirely consistent with consti­tu­tional jurispru­dence up to that time. Establishment Clause analysis was limited to the question of whether the statutes could be “ratio­nally” char­ac­terized as having a secular purpose. Due Process analysis was limited to the “rational basis” test. And the essential element of legit­imacy of the asserted state interest (in these cases, estab­lishing a uniform day of rest and relax­ation, promoting the tran­quility of that day, and encour­aging recre­ational activ­ities on that day to the exclusion of commercial or business activ­ities) relied on a very broad and well settled “police power” of the states.

If Blue Laws (by which I mean Sunday Closing Laws in general, not just as they are applied to alcohol sales) were to be chal­lenged today, I think they would still be upheld. First, the asserted state interest would still be viewed as legit­imate, because it can be asserted as a health, safety, and welfare interest, not exclu­sively a morals interest (which would make it fail under Lawrence).

Using the (rela­tively new) Lemon test, the laws do not violate the Establishment Clause. The Lemon test requires

1. a legit­imate state interest with an arguably secular purpose,
2. that the statute not primarily advance or hinder religion, and
3. that the statute not exces­sively entangle government with religion.

Under current Lemon test jurispru­dence, including cases like McCreary County v. ACLU and Van Orden v. Perry (The Ten Commandments Cases), the Sunday Closing laws meet all three require­ments. The effect of making Christianity easier (and Judaism and Islam harder) is inci­dental to the statute’s secular purposes. Besides, Establishment isn’t really the major problem here. Imagine if the states moved the Sunday Closing laws to Tuesday. They’d be no more or less offensive. The choice of Sunday is, in fact, quite sensible if we pretend the goal is legitimate.

Even if we were to do a Substantive Due Process analysis, assert an impli­cated liberty interest, and apply strict scrutiny, I still don’t think they would be found uncon­sti­tu­tional. With strict scrutiny, the state interest has to be legit­imate and compelling, and the statute has to be likely to advance that interest and must be the least restrictive means for doing so. If the goal is to establish a uniform day of rest (for economic, health, safety, welfare reasons, etc.), then the statute is likely to accom­plish that (because it does establish a uniform day of rest), and there is no less restrictive means of accom­plishing it. There might be a question of whether the interest is compelling, but the Court has never estab­lished firm guide­lines for deciding what is compelling.

Even so, I doubt strict scrutiny would even apply, because the courts would likely draw the impli­cated right narrowly, as is their practice. Instead of saying that the statute affects the right to liberty, the Court would say it affects the “right to engage in commercial activity at the time and place of one’s choosing,” or something like that. That’s not a right in the Constitution, and is probably not “deeply ingrained in our nation’s history and tradition,” since there have always been limits on when and where commercial activity can take place. So the Court would probably still apply the rational basis test, which would uphold the statute just as it did in the past.

So I don’t think Blue Laws, as they exist today, are really an Establishment Clause issue. I think they are a legit­imacy issue. The asserted secular interest is not objec­tively legit­imate — the state should have no interest in promoting a uniform day of rest on any day of the week. The state has no legit­imate interests that require violating the liberty of its citizens by telling them when and where they may engage in non-​​coercive or exces­sively dangerous commercial activity. But this inter­pre­tation demands a major shift in judicial philosophy (from posi­tivism back to “natural law”), or a major rewrite of the Constitution (e.g. inserting an inter­pretive clause insisting on a “natural law” type inter­pre­tation). [NB: Among judicial philoso­phies, the term “natural law” refers to the propo­sition that there is a “right law” out there for the courts to discover. Unfortunately, “natural law” makes no distinction as to the source of that law. That would also need to be corrected.]

The Supreme Court has not addressed the issue of Sunday Closing laws since 1961, and a search on Westlaw turned up no opinions authored by Antonin Scalia on the issue. If I had to guess as to how Scalia would decide this kind of issue, I would say he would uphold Blue Laws because of his (rightful) disdain for “standards” as opposed to “rules,” and his (wrongful) view of the power of the states under the Constitution. Scalia hates “standards” and “balancing tests” and prefers bright-​​line rules. On this point, he and I are in agreement. Law cannot be objective if it includes balancing tests, because a potential actor will not be able to antic­ipate how a judge might later weigh the facts. The actor will therefore not be able to determine the legality of his actions before he takes them, no matter how many facts he has at his disposal before acting. The legality of the action will depend on the highly subjective balancing performed by the judge after the fact. Balancing tests are inimical to objective law, so on that count Scalia would get it right. But Scalia views the power structure of the Constitution all backwards, as do the vast majority of modern jurists. He thinks of the Constitution as a limiting document instead of an empow­ering document, espe­cially when it comes to the states. In Scalia’s view, the states have absolute and plenary power, except when some part of that power is expressly delegated to the Federal government. In one sense, Scalia is an author­i­tarian, because he believes govern­ments in general can exercise huge authority over their citizens. So Scalia would certainly view the purpose of Blue Laws as legit­imate to govern­ments in general, and would read the Constitution literally for any prohi­bition of that power to the states. Finding none, he would engage in no balancing tests of the state versus the private interest and would side with the state as a matter of course.

Another fun aspect of the Blue Laws as they exist today is the fact that, in many states, the state government is the exclusive retailer of certain alcoholic beverages. In some states (e.g. Ohio), the state sells liquor through private, licensed retailers, who earn a commission. In others (e.g. New Hampshire), the state runs the retail stores itself. (Most states today have licensing require­ments, but are not them­selves the exclusive distributor of any type of alcoholic beverages. Colorado is among these.) Where the state runs the business, you have a contra­diction. On one hand, the retailer should be allowed to set whatever hours it likes. On the other hand, the state should not determine commercial business hours. Where the state is the retailer, there are no right answers, only wrong ones.