Appellants are members of the Orthodox Jewish Faith, which
requires the closing of their places of business and total
abstention from all manner of work from nightfall each Friday until
nightfall each Saturday. As merchants engaged in the retail sale of
clothing and home furnishings in Philadelphia, they sued to enjoin
enforcement of a 1959 Pennsylvania criminal statute which forbade
the retail sale on Sundays of those commodities and other specified
commodities. They claimed that the statute violated the Equal
Protection Clause of the Fourteenth Amendment and constituted a law
respecting an establishment of religion, and that it interfered
with the free exercise of their religion by imposing serious
economic disadvantages upon them if they adhere to the observance
of their Sabbath, and that it would operate so as to hinder the
Orthodox .Jewish Faith in gaining new members.
Held: the statute does not violate the Equal Protection
Clause of the Fourteenth Amendment, nor constitute a law respecting
an establishment of religion,
Two Guys from Harrison-Allentown,
Inc. v. McGinley, ante, p.
366 U. S. 582, and
it does not prohibit the free exercise of appellants' religion,
within the meaning of the First Amendment, made applicable to the
States by the Fourteenth Amendment. Pp.
366 U. S.
600-610.
184 F.
Supp. 352 affirmed.
Page 366 U. S. 600
MR. JUSTICE WARREN announced the judgment of the Court and an
opinion in which MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR.
JUSTICE WHITTAKER concur.
This case concerns the constitutional validity of the
application to appellants of the Pennsylvania criminal statute,
[
Footnote 1] enacted in 1959,
which proscribes the Sunday retail sale of certain enumerated
commodities. Among the questions presented are whether the statute
is a law
Page 366 U. S. 601
respecting an establishment of religion and whether the statute
violates equal protection. Since both of these questions, in
reference to this very statute, have already been answered in the
negative,
Two Guys from Harrison-Allentown, Inc. v. McGinley,
ante, p.
366 U. S. 582, and
since appellants present nothing new regarding them, they need not
be considered here. Thus, the only question for consideration is
whether the statute interferes with the free exercise of
appellants' religion.
Appellants are merchants in Philadelphia who engage in the
retail sale of clothing and home furnishings within the
proscription of the statute in issue. Each of the appellants is a
member of the Orthodox Jewish faith, which requires the closing of
their places of business and a total abstention from all manner of
work from nightfall each Friday until nightfall each Saturday. They
instituted a suit in the court below seeking a permanent injunction
against the enforcement of the 1959 statute. Their complaint, as
amended, alleged that appellants had previously kept their places
of business open on Sunday; that each of appellants had done a
substantial amount of business on Sunday, compensating somewhat for
their closing on Saturday; that Sunday closing will result in
impairing the ability of all appellants to earn a livelihood, and
will render appellant Braunfeld unable to continue in his business,
thereby losing his capital investment; that the statute is
unconstitutional for the reasons stated above.
A three-judge court was properly convened and it dismissed the
complaint on the authority of the
Two Guys from Harrison
case.
184 F.
Supp. 352. On appeal brought under 28 U.S.C. § 1253, we noted
probable jurisdiction, 362 U.S. 987.
Appellants contend that the enforcement against them of the
Pennsylvania statute will prohibit the free exercise
Page 366 U. S. 602
of their religion because, due to the statute's compulsion to
close on Sunday, appellants will suffer substantial economic loss,
to the benefit of their non-Sabbatarian competitors, if appellants
also continue their Sabbath observance by closing their businesses
on Saturday; that this result will either compel appellants to give
up their Sabbath observance, a basic tenet of the Orthodox Jewish
faith, or will put appellants at a serious economic disadvantage if
they continue to adhere to their Sabbath. Appellants also assert
that the statute will operate so as to hinder the Orthodox Jewish
faith in gaining new adherents. And the corollary to these
arguments is that if the free exercise of appellants' religion is
impeded, that religion is being subjected to discriminatory
treatment by the State.
In
McGowan v. Maryland, ante, at pp.
366 U. S.
437-440, we noted the significance that this Court has
attributed to the development of religious freedom in Virginia in
determining the scope of the First Amendment's protection. We
observed that, when Virginia passed its Declaration of Rights in
1776, providing that "all men are equally entitled to the free
exercise of religion," Virginia repealed its laws which in any way
penalized "maintaining any opinions in matters of religion,
forbearing to repair to church, or the exercising any mode of
worship whatsoever." But Virginia retained its laws prohibiting
Sunday labor.
We also took cognizance, in
McGowan, of the evolution
of Sunday Closing Laws from wholly religious sanctions to
legislation concerned with the establishment of a day of community
tranquillity, respite and recreation, a day when the atmosphere is
one of calm and relaxation, rather than one of commercialism, as it
is during the other six days of the week. We reviewed the still
growing state
Page 366 U. S. 603
preoccupation with improving the health, safety, morals and
general wellbeing of our citizens.
Concededly, appellants and all other persons who wish to work on
Sunday will be burdened economically by the State's day of rest
mandate, and appellants point out that their religion requires them
to refrain from work on Saturday as well. Our inquiry, then, is
whether, in these circumstances, the First and Fourteenth
Amendments forbid application of the Sunday Closing Law to
appellants.
Certain aspects of religious exercise cannot in any way be
restricted or burdened by either federal or state legislation.
Compulsion by law of the acceptance of any creed or the practice of
any form of worship is strictly forbidden. The freedom to hold
religious beliefs and opinions is absolute.
Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S. 303;
Reynolds v. United States, 98 U. S.
145,
98 U. S. 166.
Thus, in
West Virginia State Board of Education v.
Barnette, 319 U. S. 624,
this Court held that state action compelling school children to
salute the flag, on pain of expulsion from public school, was
contrary to the First and Fourteenth Amendments when applied to
those students whose religious beliefs forbade saluting a flag. But
this is not the case at bar; the statute before us does not make
criminal the holding of any religious belief or opinion, nor does
it force anyone to embrace any religious belief or to say or
believe anything in conflict with his religious tenets.
However, the freedom to act, even when the action is in accord
with one's religious convictions, is not totally free from
legislative restrictions.
Cantwell v. Connecticut, supra,
at pp.
310 U. S.
303-304,
310 U. S. 306.
As pointed out in
Reynolds v. United States, supra, at p.
98 U. S. 164,
legislative power over mere opinion is forbidden, but it may reach
people's actions when they are found to be in violation of
important social duties or subversive of good order, even when
Page 366 U. S. 604
the actions are demanded by one's religion. This was articulated
by Thomas Jefferson when he said:
"Believing with you that religion is a matter which lies solely
between man and his God, that he owes account to none other for his
faith or his worship, that
the legislative powers of government
reach actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American people which
declared that their legislature should 'make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof,' thus building a wall of separation between church and
State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with
sincere satisfaction the progress of those sentiments which tend to
restore to man all his natural rights, convinced he
has no
natural right in opposition to his social duties."
(Emphasis added.) 8 Works of Thomas Jefferson 113. [
Footnote 2] And, in the
Barnette case, the Court was careful to point out that
"The freedom asserted by these appellees does not bring them
into collision with rights asserted by any other individual. It is
such conflicts which most frequently require intervention of the
State to determine where the rights of one end and those of another
begin. . . . It is . . . to be noted that the compulsory flag
salute and
Page 366 U. S. 605
pledge requires
affirmation of a belief and an
attitude of mind."
319 U.S. at
319 U. S. 630,
319 U. S. 633.
(Emphasis added.)
Thus, in
Reynolds v. United States, this Court upheld
the polygamy conviction of a member of the Mormon faith despite the
fact that an accepted doctrine of his church then imposed upon its
male members the duty to practice polygamy. And, in
Prince v.
Massachusetts, 321 U. S. 158,
this Court upheld a statute making it a crime for a girl under
eighteen years of age to sell any newspapers, periodicals, or
merchandise in public places despite the fact that a child of the
Jehovah's Witnesses faith believed that it was her religious duty
to perform this work.
It is to be noted that, in the two cases just mentioned, the
religious practices themselves conflicted with the public interest.
In such cases, to make accommodation between the religious action
and an exercise of state authority is a particularly delicate task,
id. at
321 U. S. 165,
because resolution in favor of the State results in the choice to
the individual of either abandoning his religious principle or
facing criminal prosecution.
But, again, this is not the case before us because the statute
at bar does not make unlawful any religious practices of
appellants; the Sunday law simply regulates a secular activity and,
as applied to appellants, operates so as to make the practice of
their religious beliefs more expensive. Furthermore, the law's
effect does not inconvenience all members of the Orthodox Jewish
faith, but only those who believe it necessary to work on Sunday.
[
Footnote 3] And even these are
not faced with as serious a choice as forsaking their religious
practices or subjecting themselves to criminal prosecution. Fully
recognizing that the alternatives
Page 366 U. S. 606
open to appellants and others similarly situated -- retaining
their present occupations and incurring economic disadvantage or
engaging in some other commercial activity which does not call for
either Saturday or Sunday labor -- may well result in some
financial sacrifice in order to observe their religious beliefs,
still the option is wholly different than when the legislation
attempts to make a religious practice itself unlawful.
To strike down, without the most critical scrutiny, legislation
which imposes only an indirect burden on the exercise of religion,
i.e., legislation which does not make unlawful the
religious practice itself, would radically restrict the operating
latitude of the legislature. Statutes which tax income and limit
the amount which may be deducted for religious contributions impose
an indirect economic burden on the observance of the religion of
the citizen whose religion requires him to donate a greater amount
to his church; statutes which require the courts to be closed on
Saturday and Sunday impose a similar indirect burden on the
observance of the religion of the trial lawyer whose religion
requires him to rest on a weekday. The list of legislation of this
nature is nearly limitless.
Needless to say, when entering the area of religious freedom, we
must be fully cognizant of the particular protection that the
Constitution has accorded it. Abhorrence of religious persecution
and intolerance is a basic part of our heritage. But we are a
cosmopolitan nation made up of people of almost every conceivable
religious preference. These denominations number almost three
hundred. Year Book of American Churches for 1958, 257
et
seq. Consequently, it cannot be expected, much less required,
that legislators enact no law regulating conduct that may in some
way result in an economic disadvantage to some religious sects and
not to others because of the special practices of the various
religions. We do not believe that such an effect is an absolute
test
Page 366 U. S. 607
for determining whether the legislation violates the freedom of
religion protected by the First Amendment.
Of course, to hold unassailable all legislation regulating
conduct which imposes solely an indirect burden on the observance
of religion would be a gross oversimplification. If the purpose or
effect of a law is to impede the observance of one or all
religions, or is to discriminate invidiously between religions,
that law is constitutionally invalid even though the burden may be
characterized as being only indirect. But if the State regulates
conduct by enacting a general law within its power, the purpose and
effect of which is to advance the State's secular goals, the
statute is valid despite its indirect burden on religious
observance unless the State may accomplish its purpose by means
which do not impose such a burden.
See Cantwell v. Connecticut,
supra, at pp.
310 U. S.
304-305. [
Footnote
4]
As we pointed out in
McGowan v. Maryland, supra, at pp.
366 U. S.
444-445, we cannot find a State without power to provide
a weekly respite from all labor and at the same time, to set one
day of the week apart from the others as a day of rest, repose,
recreation and tranquillity -- a day when the hectic tempo of
everyday existence ceases and a more pleasant atmosphere is
created, a day which all members of the family and community have
the opportunity to spend and enjoy together, a day on which people
may visit friends and relatives who are not available during
working days, a day when the weekly laborer may best regenerate
himself. This is particularly true in this day and age of
increasing state concern with public welfare legislation.
Page 366 U. S. 608
Also, in
McGowan, we examined several suggested
alternative means by which it was argued that the State might
accomplish its secular goals without even remotely or incidentally
affecting religious freedom.
Ante at pp.
366 U. S.
450-452. We found there that a State might well find
that those alternatives would not accomplish bringing about a
general day of rest. We need not examine them again here.
However, appellants advance yet another means at the State's
disposal which they would find unobjectionable. They contend that
the State should cut an exception from the Sunday labor
proscription for those people who, because of religious conviction,
observe a day of rest other than Sunday. By such regulation,
appellants contend, the economic disadvantages imposed by the
present system would be removed, and the State's interest in having
all people rest one day would be satisfied.
A number of States provide such an exemption, [
Footnote 5] and this may well be the wiser
solution to the problem. But our concern is not with the wisdom of
legislation, but with its constitutional limitation. Thus, reason
and experience teach that to permit the exemption might well
undermine the State's goal of providing a day that, as best
possible, eliminates the atmosphere of commercial noise and
activity. Although not dispositive of the issue, enforcement
problems would be more difficult since there would be two or more
days to police, rather than one, and it would be more difficult to
observe whether violations were occurring.
Additional problems might also be presented by a regulation of
this sort. To allow only people who rest on a day other than Sunday
to keep their businesses open on that day might well provide these
people with an economic advantage over their competitors who
must
Page 366 U. S. 609
remain closed on that day; [
Footnote 6] this might cause the Sunday observers to
complain that their religions are being discriminated against. With
this competitive advantage existing, there could well be the
temptation for some, in order to keep their businesses open on
Sunday, to assert that they have religious convictions which compel
them to close their businesses on what had formerly been their
least profitable day. This might make necessary a state-conducted
inquiry into the sincerity of the individual's religious beliefs,
[
Footnote 7] a practice which a
State might believe would itself run afoul of the spirit of
constitutionally protected religious guarantees. Finally, in order
to keep the disruption of the day at a minimum, exempted employers
would probably have to hire employees who themselves qualified for
the exemption because of their own religious beliefs, [
Footnote 8] a practice which a State
might feel to be opposed to its general policy prohibiting
religious discrimination in hiring. [
Footnote 9] For all of these reasons, we cannot say that
the Pennsylvania statute before us is invalid, either on its face
or as applied.
MR. JUSTICE HARLAN concurs in the judgment. MR. JUSTICE BRENNAN
and MR. JUSTICE STEWART concur in
Page 366 U. S. 610
our disposition of appellants' claims under the Establishment
Clause and the Equal Protection Clause. MR. JUSTICE FRANKFURTER and
MR. JUSTICE HARLAN have rejected appellants' claim under the Free
Exercise Clause in a separate opinion.
Accordingly, the decision is
Affirmed.
[For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE
HARLAN,
see ante, p.
366 U. S.
459.]
[For dissenting opinion of MR. JUSTICE DOUGLAS,
see
ante, p.
366 U. S.
561.]
[
Footnote 1]
18 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 4699.10
provides:
"Selling certain personal property on Sunday"
"Whoever engages on Sunday in the business of selling, or sells
or offers for sale, on such day at retail, clothing and wearing
apparel, clothing accessories, furniture, housewares, home,
business or office furnishings, household, business or office
appliances, hardware, tools, paints, building and lumber supply
materials, jewelry, silverware, watches, clocks, luggage, musical
instruments and recordings, or toys, excluding novelties and
souvenirs, shall, upon conviction thereof in a summary proceeding
for the first offense, be sentenced to pay a fine of not exceeding
one hundred dollars ($100), and for the second or any subsequent
offense committed within one year after conviction for the first
offense, be sentenced to pay a fine of not exceeding two hundred
dollars ($200) or undergo imprisonment not exceeding thirty days in
default thereof."
"Each separate sale or offer to sell shall constitute a separate
offense."
"Information charging violations of this section shall be
brought within seventy-two hours after the commission of the
alleged offense and not thereafter."
[
Footnote 2]
Oliver Ellsworth, a member of the Constitutional Convention and
later Chief Justice, wrote:
"But, while I assert the rights of religious liberty, I would
not deny that the civil power has a right, in some cases, to
interfere in matters of religion. It has a right to prohibit and
punish gross immoralities and impieties, because the open
practice of these is of evil example and detriment."
(Emphasis added.) Written in the Connecticut Courant, Dec. 17,
1787, as quoted in 1 Stokes, Church and State in the United States,
535.
[
Footnote 3]
See the concurring opinion of Mr. Justice Cardozo,
joined by Mr. Justice Brandeis and Mr. Justice Stone, in
Hamilton v. Regents, 293 U. S. 245,
293 U. S.
265-268.
[
Footnote 4]
Thus, in cases like
Murdock v. Pennsylvania,
319 U. S. 105, and
Follett v. McCormick, 321 U. S. 573,
this Court struck down municipal ordinances which, in application,
required religious colporteurs to pay a license tax as a condition
to the pursuit of their activities because the State's interest,
the obtaining of revenue, could be easily satisfied by imposing
this tax on nonreligious sources.
[
Footnote 5]
E.g., Ind.Ann.Stat. § 10-4301.
[
Footnote 6]
"If he [the Orthodox Jewish storekeeper] opens on Saturday, he
is subjected to very fierce competition indeed from Christian
shopkeepers, whereas, on Sunday, supposing he closes on Saturday,
he has an absolutely free run, and no competition from Christian
shopkeepers at all."
311 Parliamentary Debates, Commons, 492.
"It is true that the orthodox Jew will only be allowed to trade
until two o'clock on Sunday, but, during that time, he will have a
monopoly. That is a tremendous advantage. In many districts, he
will be the only trader with a shop open in that district."
101 Parliamentary Debates, Lords, 430.
[
Footnote 7]
Connecticut, which has such an exemption statute, requires that
Sabbatarians, in order to qualify, file a written notice of
religious belief with the prosecuting attorney. Conn.Gen.Stat.Rev.
§ 53-303.
[
Footnote 8]
E.g., Va.Code Ann., § 18.1-359.
[
Footnote 9]
E.g., 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) §§
951-963.
MR. JUSTICE BRENNAN, concurring and dissenting.
I agree with THE CHIEF JUSTICE that there is no merit in
appellants' establishment and equal protection claims. I dissent,
however, as to the claim that Pennsylvania has prohibited the free
exercise of appellants' religion.
The Court has demonstrated the public need for a weekly surcease
from worldly labor, and set forth the considerations of convenience
which have led the Commonwealth of Pennsylvania to fix Sunday as
the time for that respite. I would approach this case differently,
from the point of view of the individuals whose liberty is --
concededly -- curtailed by these enactments. For the values of the
First Amendment, as embodied in the Fourteenth, look primarily
towards the preservation of personal liberty, rather than towards
the fulfillment of collective goals.
The appellants are small retail merchants, faithful
practitioners of the Orthodox Jewish faith. They allege -- and the
allegation must be taken as true, since the case comes to us on a
motion to dismiss the complaint -- that ". . . one who does not
observe the Sabbath [by refraining from labor] . . . cannot be an
Orthodox Jew."
Page 366 U. S. 611
In appellants' business area, Friday night and Saturday are busy
times; yet appellants, true to their faith, close during the Jewish
Sabbath, and make up some, but not all, of the business thus lost
by opening on Sunday. "Each of the plaintiffs," the complaint
continues,
"does a substantial amount of business on Sundays, and the
ability of the plaintiffs to earn a livelihood will be greatly
impaired by closing their business establishment on Sundays."
Consequences even more drastic are alleged:
"Plaintiff, Abraham Braunfeld, will be unable to continue in his
business if he may not stay open on Sunday, and he will thereby
lose his capital investment."
In other words, the issue in this case -- and we do not
understand either appellees or the Court to contend otherwise -- is
whether a State may put an individual to a choice between his
business and his religion. The Court today holds that it may. But I
dissent, believing that such a law prohibits the free exercise of
religion.
The first question to be resolved, however, is somewhat broader
than the facts of this case. That question concerns the appropriate
standard of constitutional adjudication in cases in which a statute
is assertedly in conflict with the First Amendment, whether that
limitation applies of its own force or as absorbed through the less
definite words of the Fourteenth Amendment. The Court in such cases
is not confined to the narrow inquiry whether the challenged law is
rationally related to some legitimate legislative end. Nor is the
case decided by a finding that the State's interest is substantial
and important, as well as rationally justifiable. This canon of
adjudication was clearly stated by Mr. Justice Jackson, speaking
for the Court in
West Virginia State Board of Education v.
Barnette, 319 U. S. 624,
319 U. S. 639
(1943):
"In weighing arguments of the parties, it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for
Page 366 U. S. 612
transmitting the principles of the First Amendment and those
cases in which it is applied for its own sake. The test of
legislation which collides with the Fourteenth Amendment, because
it also collides with the principles of the First, is much more
definite than the test when only the Fourteenth is involved. Much
of the vagueness of the due process clause disappears when the
specific prohibitions of the First become its standard. The right
of a state to regulate, for example, a public utility may well
include, so far as the due process test is concerned, power to
impose all of the restrictions which a legislature may have a
'rational basis' for adopting. But freedoms of speech and of press,
of assembly, and of worship, may not be infringed on such slender
grounds. They are susceptible of restriction only to prevent grave
and immediate danger to interests which the state may lawfully
protect. It is important to note that, while it is the Fourteenth
Amendment which bears directly upon the state, it is the more
specific limiting principles of the First Amendment that finally
govern this case."
This exacting standard has been consistently applied by this
Court as the test of legislation under all clauses of the First
Amendment, not only those specifically dealing with freedom of
speech and of the press. For religious freedom -- the freedom to
believe and to practice strange and, it may be, foreign creeds --
has classically been one of the highest values of our society.
See, e.g., Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 115
(1943);
Jones v. City of Opelika, 319 U.
S. 103 (1943);
Martin v. City of Struthers,
319 U. S. 141
(1943);
Follett v. Town of McCormick, 321 U.
S. 573 (1944);
Marsh v. Alabama, 326 U.
S. 501,
326 U. S. 510
(1946). Even the most concentrated and fully articulated attack on
this high standard has seemingly admitted its validity in
principle, while
Page 366 U. S. 613
deploring some incidental phraseology.
See Kovacs v.
Cooper, 336 U. S. 77,
336 U. S. 89,
336 U. S. 95-96
(1949) (concurring opinion);
but cf. Ullmann v. United
States, 350 U. S. 422
(1956). The honored place of religious freedom in our
constitutional hierarchy, suggested long ago by the argument of
counsel in
Permoli v. Municipality No. 1
of City of New Orleans, 3 How. 589, 600 [argument
of counsel -- omitted](1845), and foreshadowed by a prescient
footnote in
United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S. 152
(1938), note 4, must now be taken to be settled. Or at least so it
appeared until today. For, in this case, the Court seems to say,
without so much as a deferential nod towards that high place which
we have accorded religious freedom in the past, that any
substantial state interest will justify encroachments on religious
practice, at least if those encroachments are cloaked in the guise
of some nonreligious public purpose.
Admittedly, these laws do not compel overt affirmation of a
repugnant belief, as in
Barnette, nor do they prohibit
outright any of appellants' religious practices, as did the federal
law upheld in
Reynolds v. United States, 98 U. S.
145 (1878), cited by the Court. That is, the laws do not
say that appellants must work on Saturday. But their effect is that
appellants may not simultaneously practice their religion and their
trade without being hampered by a substantial competitive
disadvantage. Their effect is that no one may, at one and the same
time, be an Orthodox Jew and compete effectively with his
Sunday-observing fellow tradesmen. This clog upon the exercise of
religion, this state-imposed burden on Orthodox Judaism, has
exactly the same economic effect as a tax levied upon the sale of
religious literature. And yet such a tax, when applied in the form
of an excise or license fee, was held invalid in
Follett v.
Town of McCormick, supra. All this the Court, as I read its
opinion, concedes.
What, then, is the compelling state interest which impels the
Commonwealth of Pennsylvania to impede
Page 366 U. S. 614
appellants' freedom of worship? What overbalancing need is so
weighty in the constitutional scale that it justifies this
substantial, though indirect, limitation of appellants' freedom? It
is not the desire to stamp out a practice deeply abhorred by
society, such as polygamy, as in
Reynolds, for the custom
of resting one day a week is universally honored, as the Court has
amply shown. Nor is it the State's traditional protection of
children, as in
Prince v. Massachusetts, 321 U.
S. 158 (1944), for appellants are reasoning and fully
autonomous adults. It is not even the interest in seeing that
everyone rests one day a week, for appellants' religion requires
that they take such a rest. It is the mere convenience of having
everyone rest on the same day. It is to defend this interest that
the Court holds that a State need not follow the alternative route
of granting an exemption for those who, in good faith, observe a
day of rest other than Sunday.
It is true, I suppose, that the granting of such an exemption
would make Sundays a little noisier, and the task of police and
prosecutor a little more difficult. It is also true that a majority
-- 21 -- of the 34 States which have general Sunday regulations
have exemptions of this kind. [
Footnote
2/1] We are not told that those States are significantly
noisier, or that their police are significantly more burdened,
than
Page 366 U. S. 615
Pennsylvania's. Even England, not under the compulsion of a
written constitution, but simply influenced by considerations of
fairness, has such an exemption for some activities. [
Footnote 2/2] The Court conjures up several
difficulties with such a system which seem to me more fanciful than
real. Non-Sunday observers might get an unfair advantage, it is
said. A similar contention against the draft exemption for
conscientious objectors (another example of the exemption
technique) was rejected with the observation that "its unsoundness
is too apparent to require" discussion.
Selective Draft Law
Cases, 245 U. S. 366,
245 U. S. 390
(1918). However widespread the complaint, it is legally baseless,
and the State's reliance upon it cannot withstand a First Amendment
claim. We are told that an official inquiry into the good faith
with which religious beliefs are held might be itself
unconstitutional. But this Court indicated otherwise in
United
States v. Ballard, 322 U. S. 78
(1944). Such an inquiry is no more an infringement of religious
freedom than the requirement imposed by the Court itself in
McGowan v. Maryland, ante, p.
366 U. S. 420,
that a plaintiff show that his good faith religious beliefs are
hampered before he acquires standing to attack a statute under the
Free Exercise Clause of the First Amendment. Finally, I find the
Court's mention of a problem under state antidiscrimination
statutes almost chimerical. Most such statutes provide that hiring
may be made on a religious basis if religion is a
bona
fide occupational qualification. [
Footnote 2/3] It happens, moreover, that Pennsylvania's
statute has such a provision. [
Footnote
2/4]
In fine, the Court, in my view, has exalted administrative
convenience to a constitutional level high enough to
Page 366 U. S. 616
justify making one religion economically disadvantageous. The
Court would justify this result on the ground that the effect on
religion, though substantial, is indirect. The Court forgets, I
think, a warning uttered during the congressional discussion of the
First Amendment itself: " . . . the rights of conscience are, in
their nature, of peculiar delicacy, and will little bear the
gentlest touch of governmental hand. . . ." [
Footnote 2/5]
I would reverse this judgment and remand for a trial of
appellants' allegations, limited to the free exercise of religion
issue.
[
Footnote 2/1]
Conn.Gen.Stat., 1958 rev., § 53-303; Fla.Laws 1959, c. 59-1650,
§ 2; Ill.Rev.Stat., 1959, c. 38, § 549; Burns' Ind.Ann.Stat., 1956
repl., § 10-4301; Kan.Gen.Stat.Ann., 1949, § 21-953; Ky.Rev.Stat.,
1959, § 436.160(2); Me.Rev.Stat., 1954, c. 134, § 44; Mass.Gen.Laws
Ann., 1958, c. 136, § 6; Mich.Stat.Ann., 1957 rev., §§ 18.855,
18.122, 9.2702, Comp.Laws Supp.1956, § 435.252; Comp.Laws 1948, §§
338.682, 435.7; Mo.Rev.Stat., 1959, § 563.700; Neb.Rev.Stat., 1943,
§ 28-940; N.J.Stat.Ann., 1953, § 2A:171-4; McKinney's N.Y.Laws,
Penal Law, § 2144; N.D.Rev.Code, 1943, § 12-2117; NDCC 12-21-17;
Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958,
Tit. 21, § 909; R.I.Gen.Laws, 1956, § 11-40-4; S.D.Code, 1939, §
13.1710; Vernon's Ann.Tex.Pen.Code art. 284; Va.Code, 1950, §
18.1-359; Wash.Rev.Code, 1951, § 9.76.020; W.Va.Code Ann., 1955, c.
61, Art. 8, § 6073.
Cf. Wis.Stat.Ann., 1958, § 301.33.
[
Footnote 2/2]
E.g., Shops Act, 1950, 14 Geo. VI, c. 28, § 53.
[
Footnote 2/3]
E.g., Mass.Gen.Laws Ann., 1958, c. 151B, § 4, par.
1.
[
Footnote 2/4]
43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 955.
[
Footnote 2/5]
I Annals of Cong. 730 (remarks of Representative Daniel Carroll
of Maryland, August 15, 1789).
MR. JUSTICE STEWART, dissenting.
I agree with substantially all that MR. JUSTICE BRENNAN has
written. Pennsylvania has passed a law which compels an Orthodox
Jew to choose between his religious faith and his economic
survival. That is a cruel choice. It is a choice which I think no
State can constitutionally demand. For me, this is not something
that can be swept under the rug and forgotten in the interest of
enforced Sunday togetherness. I think the impact of this law upon
these appellants grossly violates their constitutional right to the
free exercise of their religion.