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.