Friday, February 29, 2008

Thou shall not drink on the Sabbath, at least not heavily

Recently, a friend sent me the following e-mail:

"(Another person forwarded me) a petition to let the state of Georgia vote on whether each individual county can sell alcohol on Sunday in stores. So I thought some of you might want to sign it too! Even if you don't drink, not allowing alcohol to be sold on Sunday is imposing some people's religious beliefs on the entire state of Georgia! Hey and it can increase tax revenue too! Anyway thought you might be interested!"

I thank my friend for sending me this, although I shall decline to sign. (Personal to her: while I won't support alcohol sales on Sundays, I favor the Atlanta Falcons winning more games on Sundays. If you have any petitions to that effect, please send them and I will sign at once.)

You can bet that as soon as I got this communication, I started thinking about the constitutional implications. Before I get to those, however, let me address something else I really like: animals. The friend who forwarded me the petition is someone I know through both of our involvement in the field of animal care. It's ironic then, that the Fourth Commandment, source of the notion of Sunday as a day of rest, can be viewed as a very early anti-cruelty statute. Look at the text of Exodus 20: 8-10:

"Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: but the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates..."

The emphasis is mine, of course. (My Bible is highlighted in two ways: the words of Christ are in red, courtesy of the publisher, and references to animals are underlined, courtesy of me.)

I doubt there are any cattle out there who care if you personally keep the sabbath holy or not. But there is no question that having a day of rest is beneficial for an animal that labors hard pulling a plow.

It's easy for us in industrial America to forget how recent in human history is the process of doing work by machine rather than by domestic livestock, and that many in developing nations still depend on an ox, an ass, or a water buffalo. And it's interesting to note that in the horse and buggy days of 1816, when Congress debated whether to cease transportation of mail on Sundays, New York Representative James Tallmadge of New York argued in favor of such an act by asserting:

"The cessation of labor through one day out of seven, serves greatly to relieve and refresh both man and beast, and thus to fit them more effectually to perform the duties of the ensuing week." (29 Annals of Congress at 1123, again my emphasis.)

If you don't work, your creatures can't. That cuts down on seriously overworking beasts of burden.

Okay, now to the constitutional matter. Without directly mentioning the First Amendment's prohibition of governmental establishment of religion, my friend seems to be invoking this provision as an argument against Sunday liquor sales.

There's a bit of an oddity here, in that it's challenging to argue that the First Amendment negates keeping Sundays dry, when for fourteen years from 1919 to 1933 the Eighteenth Amendment mandated that all seven days of the week must be alcohol-free. Fine, that Amendment was repealed. Still, it's instructive to consider a little of the history that led this country to a total ban on liquor as opposed to what we're talking about here, simply not selling booze on Sundays.

Prohibition was championed by the Anti-Saloon League, founded in the late nineteenth century; as legal historian Lawrence M. Friedman notes: "The league had strong allies among American Protestant churches" (American Law in the 20th Century, 2002, p. 102). Friedman also characterizes the movement as "a crusade led by small-town, solid, respectable Protestant worthies," p. 105.

So it seems many supported Prohibition for religious reasons. (For a list of over a dozen Biblical references to the evils of alcohol, see But no one in this country is denied the power to support or oppose legislation for reasons of faith; those Christians a century ago had as much right to attempt a ban on alcohol for religious convictions as their grandparents had opposing slavery as an abomination before God. While I disagree with Justice Scalia's dissent in Edwards v. Aguillard, 482 U.S. 578, 610, (1987), a case involving teaching of creation in public schools, I think he was definitely on the right track when he wrote: "We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved," Edwards at 615.

Okay, that's an argument about the past. We may laugh about preachers of yesteryear preaching temperance, but what about today? Is it acceptable to ban liquor sales on Sundays without running afoul of the standard interpretations of the First Amendment and its disallowance of establishment of religion?

Yes, said the Supreme Court in the 1961 case of McGowan v. Maryland, 366 U.S. 420. In that case, seven department store employees were "indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of (Maryland's blue laws, which) prohibited, throughout the State, the Sunday sale of (most)merchandise," McGowan at 422-23. Notice that we're not talking about beer here; the McGowan Seven got in trouble for selling floor wax on Sunday, for Pete's sakes. The Anti-Saloon League has been consigned to history; I doubt we'll ever see an Anti-Floor Wax League trying to accomplish similar ends.

For Chief Justice Warren, writing for the eight to one majority, there was no violation of the Establishment clause. While acknowledging that Sunday closing laws had a sectarian origin, he asserted that by the late twentieth century this was no longer the case:

"In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that, as presently written and administered, most of them, at least, are of a secular, rather than of a religious, character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States. . . Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, weekend diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare, rather than one of mere separation of church and State," McGowan at 444-445.

Only Justice William Douglas dissented. He was troubled less by the laying aside of Sunday as a day of rest than he was that criminal sanctions were imposed on those who did not comply, McGowan at 561.

One might protest that McGowan was decided nearly a half century ago and it was therefore product of an earlier view of the nexus between church and government that is not necessarily shared today. But consider this: virtually the same court that declared blue laws did not violate the establishment clause ruled over the following two years that prayer and Bible reading in public schools did run afoul of that Constitutional provision, Engel v. Vitale 370 U.S. 421 (1962) and Abington School District v. Schempp 374 U.S. 203 (1963). Five of the Justices who said yea to blue laws also said nay to prayer and Bibles in public schools (the five were Warren, Black, Clark, Harlan, and Brennen; two others from the McGowan majority--Frankfurter and Whittaker--were gone from the court when Engel and Schempp were decided).

So basically the same group of men who said you could face criminal charges for selling floor wax on Sundays also said public school children couldn't recite the Lord's Prayer Monday through Friday. Whether you agree with them or not in the school prayer cases--and Lord knows, there are a lot of people to this date who regret those decisions--it's pretty obvious that the early sixties Court wasn't composed of personnel who went out of their way to allow Christian principles to creep into government policy. They've been slammed mostly for going too hard in the other direction. (See The Court and the Constitution by Archibald Cox, 1987, pp. 200-202.)

Bringing us back to the here and now, I can't see what harm is done by keeping the cash registers shut at package stores in Atlanta on Sundays. Given that a lot of people are killed and maimed by drunk drivers, that children are beaten by alcoholic mothers or fathers, and that even responsible people can quickly become boorish slobs after a few shots, I think having one day dry might be valuable to remind folks of the high cost of alcohol abuse.

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