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The history of Sunday Closing Laws goes back into United States colonial history and far back into English history.144 Commonly, the laws require the observance of the Christian Sabbath as a day of rest, although in recent years they have tended to become honeycombed with exceptions. The Supreme Court rejected an Establishment Clause challenge to Sunday Closing Laws in McGowan v. Maryland.145 The Court acknowledged that historically the laws had a religious motivation and were designed to effectuate concepts of Christian theology. However, ”[i]n 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. . . .”146 ”[T]he fact that this [prescribed day of rest] 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.”147 The choice of Sunday as the day of rest, while originally religious, now reflected simple legislative inertia or recognition that Sunday was a traditional day for the choice.148 Valid secular reasons existed for not simply requiring one day of rest and leaving to each individual to choose the day, reasons of ease of enforcement and of assuring a common day in the community for rest and leisure.149 More recently, a state statute mandating that employers honor the Sabbath day of the employee’s choice was held invalid as having the primary effect of promoting religion by weighing the employee’s Sabbath choice over all other interests.150
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[Footnote 144] The history is recited at length in the opinion of the Court in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961), and in Justice Frankfurter’s concurrence. Id. at 459, 470-551 and appendix.
[Footnote 145] 366 U.S. 420 (1961). Decision on the establishment question in this case also controlled the similar decision on that question in Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see infra, pp.1011-12.
[Footnote 146] McGowan v. Maryland, 366 U.S. 420, 444 (1961).
[Footnote 147] Id. at 445.
[Footnote 148] Id. at 449-52.
[Footnote 149] Id. Justice Frankfurter, with whom Justice Harlan concurred, arrived at the same conclusions by a route that did not require approval of Everson v. Board of Education, from which he had dissented.
[Footnote 150] Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).