Blue Laws

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.

Tom G Varik