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The degree of explicitness of these provisions in so many jurisdictions demonstrates the intricacy of the adjustments which they are designed to make. How delicate those adjustments can be is strikingly illustrated, once again, by a remark of the sponsor of the British closing bill of 1936, the most extensively documented modern Sunday statute. Supporting an amendment which permitted local authority to authorize the opening, during [366 U.S. 420, 531]   a portion of the year, of shops in areas frequented as seaside resorts, Mr. Loftus said:

". . . In a Bill such as this one must have elasticity. . . . We had a unanimous demand from the Association of Fish Fryers, representing the trade all over England, asking that fish-frying shops should be closed on Sundays, and we agreed and took them out of the First Schedule [which exempts shops selling meals or refreshments]. But then we heard from Blackpool, which is visited every year by, I suppose, millions of poor people, cotton operatives and others, who like to get cheap meals of fried fish on Sunday afternoons and Sunday evenings, and we feel there must be some provision in the Bill to allow the grant of exemptions in such a case. The difficulty is to avoid putting in a Clause which is open to abuse and I submit that there are two provisions which provide a safeguard. The first is that the local authority must approve the granting of exemptions, and the second is that the local authority cannot approve unless two-thirds of those particular shops in its locality are in favour of exemption. Having no desire that hardships should be inflicted on poor class people I would ask the House to accept the Clause." 132  

When these standards are applied, first, to the Maryland statute challenged in the McGowan case, appellants' claims under the Due Process and Equal Protection Clauses show themselves clearly untenable. Counsel contend that the Sunday sales prohibition, Md. Code Ann., 1957, Art. 27, 521, is rendered arbitrary by its exception of retail sales of tobacco items and soft drinks, [366 U.S. 420, 536]   ice and ice cream, confectionery, milk, bread, fruit, gasoline products, newspapers and periodicals, and of drugs and medical supplies by apothecaries - by the further exemption in Anne Arundel County, under 509, of certain recreational activities and sales incidental to them - and by the permissibility under other state and local regulations of various amusements and public entertainments on Sunday, Sunday beer and liquor sales, and Sunday pinball machines and bingo. The short answer is that these kinds of commodity exceptions, and most of these exceptions for amusements and entertainments, can be found in the comprehensive Sunday statutes of England, Puerto Rico, a dozen American States, and many other countries having uniform-day-of-rest legislation. 136 Surely unreason cannot be so widespread. The notion that, with these matters excepted, the Maryland statute lacks all rational foundation is baseless. The exceptions relate to products and services which a legislature could reasonably find necessary to the physical and mental health of the people or to their recreation and relaxation on a day of repose. Other sales activity and, under Art. 27, 492, all other labor, are forbidden. That more or fewer activities than fall within the exceptions could with equal rationality have been excluded from the general ban does not make irrational the selection which has actually been made. There is presented in this record not a trace of evidence as to the habits and customs of the population of Maryland or of Anne Arundel County, nothing that suggests that the pattern of legislation which their representatives have devised is not reasonably related to local circumstances determining their ways of [366 U.S. 420, 537]   life. Appellants have wholly failed to meet their burden of proof.

Counsel for McGowan urge that the allowance, limited to Anne Arundel County, of retail sales of merchandise customarily sold at bathing beaches, bathhouses, amusement parks and dancing saloons, violates the equal protection of the laws both by discriminating between Anne Arundel retailers and those in other counties, and by discriminating among classes of persons within Anne Arundel County who compete in sales of the same articles. 137 Clearly appellants, who were convicted for selling within the county, would not ordinarily have standing to raise the issue of possible discrimination against out-of-county merchants; in any event, on this record, it is dubious that the contention was adequately raised below. Suffice to say, for purposes of the due process issue which appellants did raise, that the provision of different Sunday regulations for different regions of a State is not ipso facto arbitrary. See Salsburg v. Maryland, 346 U.S. 545 ; Missouri v. Lewis, 101 U.S. 22, 31 . 138  

As for the asserted discrimination in favor of those who sell at the beach or the park articles not permitted to [366 U.S. 420, 538]   be sold elsewhere, the answer must be that between such beach-side enterprisers and the general suburban merchandising store at which appellants are employed there is a reasonable line of demarcation. The reason of the exemption dictates the human logic of its scope. The legislature has found it desirable that persons seeking certain forms of recreation on Sunday have the convenience of purchasing on that day items which add enjoyment to the recreation and which, perhaps, could not or would not be provided for by a vacationer prior to the day of his Sunday outing. On the other hand, the policy of securing to the maximum possible number of distributive employees their Sunday off might reasonably preclude allowing every retail establishment in the county to open to serve this convenience. A tenable resolution, surely, is to permit these particular sales only on the premises where the items will be needed and used. The enforcement problem which could arise from permitting general merchandising outlets to open for the sale of these items alone, but not for the sale of thousands of other items at adjacent counters and shelves, might in itself justify the limitation of the exception to the group of on-the-premises merchants who are less likely to stock articles extraneous to the use of the enumerated amusement facilities.

The Massachusetts statute attacked in the Gallagher case contains a wider range of exceptions but, again, none that this record shows to be patently baseless and therefore constitutionally impermissible. The court below believed that reason was offended by such provisions as those which allow, apparently, digging for clams but not dredging for oysters, or which permit certain professional sports during the hours from 1:30 to 6:30 p. m. while restricting their amateur counterparts to 2 to 6, or which make lawful (as the court below read the statute) Sunday pushcart vending by conscientious Sabbatarians, but not [366 U.S. 420, 539]   Sunday vending within a building. But the record below, on the basis of which a federal court has been asked to enjoin the enforcement of a state statute, contains no evidence concerning clam-digging or oyster-dredging, nothing to indicate that these two activities have anything more in common - requiring similar treatment - than that in each there is involved the pursuit of mollusca. There is nothing in the record concerning professional or amateur athletic events, and certainly nothing to support the conclusion that the problem of Sunday regulation of pushcarts is so similar to the problem of Sunday regulation of indoor markets as to require uniform treatment for both. 139 These various differently treated situations may be different in fact, or they may not. A statute is not to be struck down on supposition.

It is true, as appellees there claim, that Crown Kosher Super Market may not sell on Sunday products which other retail establishments may sell on that day: bread (which may be sold during certain hours by innkeepers, common victuallers, confectioners and fruiterers, and, along with other bakery products, by bakers), confectionery, frozen desserts and dessert mix, and soda water (which may be sold by innkeepers, common victuallers, confectioners and fruiterers, and druggists), tobacco (which may be sold by innkeepers, common victuallers, druggists, and regular newsdealers), etc. (The sale of drugs and newspapers on Sunday is permitted generally.) But although Crown Kosher undoubtedly suffers an element of competitive disadvantage from these provisions, the provisions themselves are not irrational. Their purpose, apparently, is to permit dealers specializing in certain products whose distribution on Sunday is regarded as necessary, to sell those products and also such other among the same group [366 U.S. 420, 540]   of necessaries as are generally found sold together with the products in which they specialize, thus fostering the maximum dissemination of the permitted products with the minimum number of retail employees required to work to disseminate them. Shops such as newsdealers, druggists, and confectioners may in Massachusetts tend, for all we know, to be smaller, less noisy, more widely distributed so that access to them from residential areas entails less traveling, than is the case with other stores. They may tend to hire fewer employees. They may present, because they specialize in products whose sale is permitted, less of a policing problem than would general markets selling these and many other products. 140 Again there is nothing in the record to support the conclusion that Massachusetts has failed to afford to the Crown Kosher Super Market treatment which is equivalent to that enjoyed by all other retailers of a class not rationally distinguishable from Crown. "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here." Williamson v. Lee Optical, Inc., 348 U.S. 483, 489 .

Nor, on the record of the McGinley case, can any other conclusion be reached as to the 1959 Pennsylvania Sunday retail sales act. Appellants in this case argue that to punish by a fine of up to one hundred dollars per sale - or two hundred dollars per sale within one year after the first offense - the retail selling of some twenty enumerated broad categories of commodities, while punishing all other sales and laboring activity by the four-dollars-per-Sunday [366 U.S. 420, 541]   fine fixed by the earlier Lord's day statute, 141 is arbitrary and violative of equal protection. But the court below found, and in this it is supported by the legislative history of the 1959 act, 142 that the enactment providing severer penalties for these classes of sales was responsive to the appearance in the Commonwealth, only shortly before the act's passage, of a new kind of large-scale mercantile enterprise which, absorbing without difficulty a four-dollar-a-week fine, made a profitable business of persistent violation of the earlier statute. These new enterprises may have attracted a disturbing volume of Sunday traffic; they may have employed more retail salesmen, and under different conditions, than other kinds of businesses in the State; some of the legislators, apparently, so believed. 143 The danger may have been apprehended that not only would these violations of long-standing State legislation continue, but that competition would force open other enterprises which had for years closed on Sunday. Under this threat the 1959 statute was designed. It applies not only to the new merchandisers - if that were so, quite obviously, different constitutional problems would arise. Rather it singles out the area where a danger has been made most evident, and within that area treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation. "[A] State may classify with reference to the evil to be prevented, and . . . if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be [366 U.S. 420, 542]   picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named." Mr. Justice Holmes, in Patsone v. Pennsylvania, 232 U.S. 138, 144 .

Even less should a legislature be required to hew the line of logical exactness where the statutory distinction challenged is merely one which sets apart offenses subject to penalties of differing degrees of severity, not one which divides the lawful from the unlawful. "Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. . . .

". . . Moreover, the whole problem of deterrence is related to still wider considerations affecting the temper of the community in which law operates. The traditions of a society, the habits of obedience to law, the effectiveness of the law-enforcing agencies, are all peculiarly matters of time and place. They are thus matters within legislative competence." Tigner v. Texas, 310 U.S. 141, 148 , 149. Appellants in McGinley, like appellants in the McGowan and appellees in the Gallagher cases, have had full opportunity to demonstrate the arbitrariness of the statute which they challenge. On this record they have entirely failed to satisfy the burden which they carry. Friedman v. New York, 341 U.S. 907 ; McGee v. North Carolina, 346 U.S. 802 ; Towery v. North Carolina, 347 U.S. 925 . Cf. Missouri, K. & T. R. Co. v. Cade, 233 U.S. 642 .

APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER.

PRINCIPAL COLONIAL SUNDAY STATUTES AND THEIR CONTINUATION UNTIL THE END OF THE EIGHTEENTH CENTURY.

New Haven Colony:

1656: Prophanation of the Lord's Day, New Haven's Settling in New England. And Some Laws for Government (1656), reprinted in Hinman, The Blue Laws (1838), 132, 206.

See also Prince, An Examination of Peters' "Blue Laws," H. R. Doc. No. 295, 55th Cong., 3d Sess. 95, 109, 113-114, 123-125.

Connecticut Colony:

1668: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852), 88 (traveling, playing).

1672: Prophanation of the Sabbath, Laws of Connecticut, 1673 (Brinley reprint 1865), 58.

1676: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852), 280. [366 U.S. 420, 544]  

See An Act for the due Observation, and keeping the Sabbath, or Lord's Day; and for Preventing, and Punishing Disorders, and Prophaneness on the same, Acts and Laws of His Majesty's English Colony of Connecticut in New-England (1750), 139; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1784), 213; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1796), 368.

DELAWARE:

1740: An Act to prevent the Breach of the Lord's Day commonly called Sunday, Laws of the Government of New-Castle, Kent and Sussex Upon Delaware (1741), 121.

1795: An Act more effectually to prevent the profanation of the Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700-1797 (1797), 1209.

GEORGIA:

1762: An Act For preventing and punishing Vice, Profaneness, and Immorality, and for keeping holy the Lord's Day, commonly called Sunday, Acts Passed by the General Assembly of Georgia, 1761-1762 (ca. 1763), 10.

See Marbury and Crawford, Digest of the Laws of Georgia, 1755-1800 (1802), 410.

MARYLAND:

1649: An Act concerning Religion, 1 Archives of Maryland (Proceedings and Acts of the General Assembly), 1637/8-1664 (1883), 244.

1654: Concerning the Sabboth Day, id., at 343.

1674: An Act against the Prophaning of the Sabbath day, 2 Archives of Maryland (Proceedings and Acts of [366 U.S. 420, 545]   the General Assembly), 1666-1676 (1884), 414 (innkeepers).

1692: An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province, 13 Archives of Maryland (Proceedings and Acts of the General Assembly), 1684-1692 (1894), 425.

1696: An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday, 19 Archives of Maryland (Proceedings and Acts of the General Assembly), 1693-1697 (1899), 418.

1723: An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers . . ., Bacon, Laws of Maryland (1765), Sf2.

See 1 Dorsey, General Public Statutory Law of Maryland, 1692-1839 (1840), 65.

MASSACHUSETTS:

Plymouth Colony:

1650: Prophanacon the Lord's Day, Compact with the Charter and Laws of the Colony of New Plymouth (1836), 92.

1658: Id., at 113 (traveling).

1671: General Laws of New Plimouth, c. III, 9, 10 (1672), in id., at 247.

Massachusetts Bay Colony:

1653: Sabbath, Colonial Laws of Massachusetts (reprinted from the edition of 1672 with the supplements through 1686) (1887), 132 (traveling, sporting, drinking).

1668: For the better Prevention of the Breach of the Sabbath, id., at 134.

1692: An Act for the better Observation and Keeping the Lord's Day, Acts and Laws of His Majesty's Province [366 U.S. 420, 546]   of the Massachusetts-Bay in New-England, in Charter of the Province of the Massachusetts-Bay in New-England (1759 [sic]), 13.

1761: An Act for Repealing the several Laws now in Force which relate to the Observation of the Lord's-Day, and for making more effectual Provision for the due Observation thereof, id., at 392.

1782: An Act for Making More Effectual Provision for the Due Observation of the Lord's Day . . ., Acts and Laws of Massachusetts, 1782 (reprinted 1890), 63.

1792: An Act providing for the due Observation of the Lord's Day, 2 Laws of Massachusetts, 1780-1800 (1801), 536.

See also the act of 1629 set forth in Blakely, American State Papers on Freedom in Religion (4th rev. ed. 1949), at 29-30.

NEW HAMPSHIRE:

1700: An Act for the better Observation and Keeping the Lords Day, Acts and Laws Passed by the General Court of His Majesties Province of New-Hampshire in New-England, 1726 (reprinted 1886), 7.

1715: An Act for the Inspecting, and Supressing of Disorders in Licensed Houses, id., at 57 (innkeepers).

1785: An Act for the Better Observation and Keeping the Lords Day, 5 Laws of New Hampshire (First Constitutional Period), 1784-1792 (1916), 75.

1789: An Act for the better Observation of the Lord's day . . ., id., at 372.

1799: An Act for the better observation of the Lords day . . ., 6 Laws of New Hampshire (Second Constitutional Period), 1792-1801 (1917), 592. [366 U.S. 420, 547]  

NEW JERSEY:

1675: Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New-Jersey with the Acts Passed during the Proprietary Governments (ca. 1752), 98.

1683: Against prophaning the Lord's Day, id., at 245.

1693: An Act for preventing Profanation of the Lords Day, id., at 519.

1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of the General Assembly of the Province of New Jersey, 1703-1752 (1752), 3.

1790: An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . ., Acts of the Fourteenth General Assembly of the State of New Jersey, c. 311 (1790), 619.

1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800), 329.

NEW YORK:

1685: A Bill against Sabbath breaking, 1 Colonial Laws of New York, 1664-1775 (1894), 173.

1695: An Act against profanation of the Lords Day, called Sunday, id., at 356.

1788: An Act for suppressing immorality, Laws of New York, 1785-1788 (1886), 679.

NORTH CAROLINA:

1741: An Act for the better observation and keeping of the Lord's day, commonly called Sunday; and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142. [366 U.S. 420, 548]  

PENNSYLVANIA:

1682: The Great Law or The Body of Laws, in Charter and Laws of the Province of Pennsylvania, 1682-1700 (with the Duke of Yorke's Book of Laws, 1676-1682) (1879), 107.

1690: The Law Concerning Liberty of Conscience (A Petition of Right, First Law), id., at 192.

1700: The Law Concerning Liberty of Conscience, 2 Statutes at Large of Pennsylvania (1896), 3.

1705: An Act to Restrain People from Labor on the First Day of the Week, id., at 175.

1779: An Act for the Suppression of Vice and Immorality, 9 Statutes at Large of Pennsylvania (1903), 333.

1786: An Act for the Prevention of Vice and Immorality . . ., 12 Statutes at Large of Pennsylvania (1906), 313.

1794: An Act for the Prevention of Vice and Immorality . . ., 15 Statutes at Large of Pennsylvania (1911), 110.

RHODE ISLAND:

1673: 2 Records of the Colony of Rhode Island and Providence Plantations, 1664-1677 (1857), 503 (alcoholic beverages).

1679: 3 Records of the Colony of Rhode Island and Providence Plantations, 1678-1706 (1858), 30 (employing servants).

1679: An Act Prohibiting Sports and Labours on the First Day of the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island and Providence-Plantations (1730), 27. [366 U.S. 420, 549]  

1784: Rhode Island Acts and Resolves, Aug. 1784 (1784), 9 (excepting members of Sabbatarian societies; but exception does not extend to opening shops, to mechanical work in compact places, etc.).

1798: An Act prohibiting Sports and Labour on the first Day of the Week, Public Laws of Rhode-Island and Providence Plantations (1798), 577.

SOUTH CAROLINA:

1692: An Act for the better Observance of the Lord's Day, commonly called Sunday, 2 Statutes at Large of South Carolina (1837), 74.

1712: An Act for the better observation of the Lord's Day, commonly called Sunday, id., at 396.

See Grimke, Public Laws of South-Carolina (1790), 19.

VIRGINIA:

1610: For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10 (gaming).

1629: 1 Hening, Statutes of Virginia (1823), 144.

1642-1643: Id., at 261 (traveling, shooting).

1657: The Sabboth to bee kept holy, id., at 434 (traveling, shooting, lading).

1661-1662: Sundays not to bee profaned, 2 Hening, Statutes of Virginia (1823), 48.

1691: An act for the more effectual suppressing the severall sins and offences of swaring, cursing, profaineing Gods holy name, Sabbath abuseing, drunkenness, fornication, and adultery, 3 Hening, Statutes of Virginia (1823), 71. [366 U.S. 420, 550]  

1705: An act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons, id., at 358.

1786: An act for punishing disturbers of Religious Worship and Sabbath breakers, 12 Hening, Statutes of Virginia (1823), 336.

In some of the Colonies the English Sunday laws were also in effect. See, e. g., Martin, Collection of the Statutes of England in Force in North-Carolina (1792), 379. [366 U.S. 420, 551]  

APPENDIX II TO OPINION OF MR. JUSTICE FRANKFURTER.

ANALYSIS OF IMPORTANT STATE SUNDAY STATUTES CURRENTLY IN FORCE.

Fn [366 U.S. 420, 459]   [NOTE: This opinion applies also to No. 36, Two Guys From Harrison-Allentown, Inc., v. McGinley, District Attorney, Lehigh County, Pennsylvania, et al., post, p. 582; No. 67, Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., post, p. 599; and No. 11, Gallagher, Chief of Police of Springfield, Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al., post, p. 617.]

[ Footnote * ] "In pursuance of my practice in giving an opinion on all constitutional questions, I must present my views on this." Mr. Justice Johnson, concurring, in Cherokee Nation v. Georgia, 5 Pet. 1, 20. See Mr. Justice Story, dissenting, in Briscoe v. Bank of the Commonwealth of Kentucky, 11 Pet. 257, 329; Mr. Chief Justice Taney, dissenting, Rhode Island v. Massachusetts, 12 Pet. 657, 752. And see Mr. Justice Bradley, concurring, in the Legal Tender Cases, 12 Wall. 457, 554: "I . . . should feel that it was out of place to add anything further on the subject were it not for its great importance. On a constitutional question involving the powers of the government it is proper that every aspect of it, and every consideration bearing upon it, should be presented, and that no member of the court should hesitate to express his views."

[ Footnote 1 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." Madison had proposed an amendment that "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." I Annals of Cong. 434. Commenting on a subsequent form of what was to become the First Amendment, he said that "he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id., at 730.

[ Footnote 2 ] See Cobb, The Rise of Religious Liberty in America (1902), passim; Sweet, The Story of Religion in America (rev. ed. 1939), 54, 76-77, 98-112, 129, 139-142; Sweet, Religion in Colonial America (1942), passim; I Channing, History of the United States (1933), 356-381, 470-474. And see Jefferson's Notes on Virginia, in II Writings of Thomas Jefferson (Memorial ed. 1903) 217-219. The Virginia Convention which ratified the Federal Constitution proposed as a needed amendment to it: "That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others." III Elliot's Debates (2d ed. 1836) 659. See also the amendment proposed by the North Carolina Convention which declined to ratify, IV id., at 244, and the understanding of the Constitution expressed by Rhode Island, I id., at 334, and New York, I id., at 328. Cf. the amendment proposed by New Hampshire, I id., at 326.

[ Footnote 3 ] See James, The Struggle for Religious Liberty in Virginia (1900); Eckenrode, Separation of Church and State in Virginia (1910); I Randall, Life of Thomas Jefferson (1858), 219-223; Cobb, The Rise of Religious Liberty in America (1902), 490-499; Sweet, The Story of Religion in America (rev. ed. 1939), 276-279.

[ Footnote 4 ] The history of the Virginia episode is treated extensively in the opinions in Everson v. Board of Education, 330 U.S. 1 .

[ Footnote 5 ] 12 Hening, Statutes of Virginia (1823), 84, 85.

[ Footnote 6 ] As appellant retailers and retail employees in the McGowan and McGinley cases have urged neither here nor below any question of infringement of their own rights of conscience, I agree with THE CHIEF JUSTICE that they have no standing to raise the "free exercise" issue. United States v. Raines, 362 U.S. 17 . The Court need not determine at this time what averments or what proofs, in a proper case, would be required in order to raise such issues in their behalf. Unlike appellants in Braunfeld and appellees in Gallagher, they have not urged that their remaining shut on any day of the week for any reason causes Sunday closing to disadvantage them peculiarly. They assert a right to operate seven days a week - a right in which they claim an economic, not a conscientious interest. Nor, on this record, is it necessary to decide whether these Sunday retail sellers might have standing to complain of the disadvantage of their enforced Sunday closing to conscientious Sabbatarian customers or potential customers. Cf. Barrows v. Jackson, 346 U.S. 249 ; Pierce v. Society of Sisters, 268 U.S. 510 . Nowhere below have they presented evidence that any such actual or hypothetical customer is thus disadvantaged.

[ Footnote 7 ] See Exodus 20:8-11, 23:12, 31:12-17; Deuteronomy 5:12-15.

[ Footnote 8 ] Codex Justin., liber III, Tit. XII, 3. See II Schaff, History of the Christian Church (1867), 380, n. 1. Later edicts of the emperors were more unequivocally Christian in temper, e. g., that of 386 A. D., Codex Theo., liber VIII, Tit. VIII, 3. See Pharr, The Theodosian Code (1952), 209.

[ Footnote 9 ] See Lewis, A Critical History of Sunday Legislation (1888), 1-90; Neale, Feasts and Fasts (1845), 86-137; Johnson and Yost, Separation of Church and State (1948), 219-221; XII Encyclopedia of Religion and Ethics (Hastings ed. 1921), 103-106: Savage, Sunday in Church History, in How Shall We Keep Sunday (1898), 27.

[ Footnote 10 ] 27 Henry VI, c. 5.

[ Footnote 11 ] 5 & 6 Edw. VI, c. 3. "Forasmuch as at all times men be not so mindful to laud and praise God, so ready to resort and hear God's holy word, and to come to the holy communion and other laudable rites, which are to be observed in every christian congregation, as their bounden duty doth require: . . . therefore to call men to remembrance of their duty, and to help their infirmity, it hath been wholsomly provided, that there should be some certain times and days appointed, wherein the christian should cease from all other kind of labours, and should apply themselves only and wholly unto the aforsaid holy works, properly pertaining unto true religion . . . ." Violations were to be punished by the censures of the church, administered by the bishops, archbishops and other persons having ecclesiastical jurisdiction. The purpose of this ordinance was apparently to restrict to a fixed and relatively limited number the days upon which labor should cease, the multiplication of saints' days having risen until they came to consume an alarming proportion of the year. It was repealed under Queen Mary.

[ Footnote 12 ] 1 Charles I, c. 1. This regulation, while prescribing civil penalties, preserved the concurrent jurisdiction of the ecclesiastical courts to punish Sabbath breaking.

[ Footnote 13 ] 3 Charles I, c. 2.

[ Footnote 14 ] For a survey of the extensive Sunday regulations promulgated under the Commonwealth, see Lewis, op. cit., supra. note 9, at 115-142.

[ Footnote 15 ] Work was punished by penalty of five shillings, selling by forfeiture of the goods. The ban against butchers and herders traveling on Sunday was repeated, under fine of twenty shillings. Dressing of meat in families and dressing or selling of meat in inns and victualling houses "for such as otherwise cannot be provided" was permitted, as was the crying or selling of milk before 9 a. m. and after 4 p. m. Later statutes made numerous other exceptions to the English Sunday ban: see, e. g., 9 Anne, c. 23, 20, exempting hackney coaches; the Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, exempting motion pictures at the option of local authority and under stipulated conditions, and also making lawful certain musical entertainments, lectures and debates, and the operation of museums, galleries, zoological and botanical gardens, etc.; and the evolving regulation of Sunday baking, 34 Geo. III, c. 61; 1 & 2 Geo. IV, c. 50, 11; 3 Geo. IV, L. & P., c. 106, 16; 6 & 7 Wm. IV, c. 37, 14; Baking Industry (Hours of Work) Act, 1954, 2 & 3 Eliz. II, c. 57, [366 U.S. 420, 473]   12. The Sunday Observation Prosecution Act, 1871, 34 & 35 Vict., c. 87, provided that no prosecutions under the statute, 29 Charles II, c. 7, might be brought without the consent of a chief police officer, a stipendiary magistrate, or two justices of the peace.

[ Footnote 16 ] Common informer practice under this statute has since been abolished. Common Informers Act, 1951, 14 & 15 Geo. VI, c. 39.

[ Footnote 17 ] See Fennell v. Ridler, 5 B. & C. 406, 407-408 (1826): "The spirit of the act [of 29 Charles II] is to advance the interests of religion, to turn a man's thoughts from his worldly concerns, and to direct them to the duties of piety and religion; and the act cannot be construed according to its spirit unless it is so construed as to check the career of worldly traffic. . . . Labour may be private and not meet the public eye, and so not offend against public decency, but it is equally labour, and equally interferes with a man's religious duties."

[ Footnote 18 ] The Book of Sports published by James I in 1618 and republished by Charles I in 1633 provided: "as for our good people's lawful recreation, our pleasure . . . is, that after the end of divine service our good people be not disturbed . . . from any lawful recreation, such as dancing, . . . leaping, vaulting, or any other such harmless recreation . . . .

"And likewise we bar from the benefit and liberty all such known recusants, either men or women, as will abstain from coming to church or divine service, being therefore unworthy of any lawful recreation after said service, that will not first come to church and serve God. Prohibiting in like sort the said recreations to any that, though conform in religion, are not present in the church at the service of God, before their going to the said recreations.

"Our pleasure, likewise is, that they to whom it belongeth in office, shall present and punish sharply all such, as in abuse of this our [366 U.S. 420, 474]   liberty will use their exercises before the end of all divine services for that day." Lewis, op. cit., supra, note 9, at 106-107. See Govett, The King's Book of Sports (1890). See also the excepting proviso to the statute, 10 & 11 Wm. III, c. 24, 14, respecting Billingsgate Market. Certain importation and selling of fish "before or after Divine Service on Sundays" is not to be deemed prohibited.

[ Footnote 19 ] Such a spirit may be seen in various royal proclamations enjoining strict enforcement of the Sunday laws, see Whitaker, The Eighteenth-Century English Sunday (1940), 56, 172-173, and in the language of charges to the grand juries encouraging their performance of their duties under the laws, see id., at 53, 57-58. Private societies formed as self-appointed agents of administration of the Sunday laws were religious in orientation. See, id., at 62, 69, 121-123, 195-197.

[ Footnote 20 ] The injunction to observe the Sabbath day in Deuteronomy 5:14 is that on that day ". . . thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy manservant and thy maidservant may rest as well as thou." Among Christian explicators of the Old Testament a social inspiration was early ascribed to this language. See Milton, A Treatise on Christian Doctrine, book 2, c. 7, in V Prose Works of John Milton (Sumner trans. 1877) 67. Luther, in the Large Catechism, part I, Third Commandment, wrote: ". . . we keep holydays not for the sake of intelligent and learned Christians; for they have no need of it. We keep them, first, for the sake of bodily necessity. Nature teaches and demands that the mass of the people - servants and mechanics, who the whole week attend to their work and trades - retire for a day of rest and recreation." I Lenker, Luther's Catechetical Writings (1907), 60. See also Luther's Treatise on Good Works (1520), Third Commandment, XVII, in I Works of Martin Luther (1915), 241. Compare Calvin's Institutes: among the three reasons for Sabbath observance, the Lord "resolved to give a day of rest to servants and those who are under the authority of others, in order that they should have some [366 U.S. 420, 475]   respite from toil." Calvin, Institutes of the Christian Religion (Battles trans. 1960), book II, c. 8, 28, at p. 395. And see Early Writings of John Hooper, D. D. (Carr ed. 1843) 337: "Then likewise God by this commandment provideth for the temporal and civil life of man, and likewise for all things that be necessary and expedient for man in this life. If man, and beast that is man's servant, should without repose and rest always labour, they might never endure the travail of the earth. God therefore, as he that intendeth the conservation and wealth of man and the thing created to man's use, commandeth this rest and repose from labour, that his creatures may endure and serve as well their own necessary affairs and business, as preserve the youth and offspring of man and beast . . . ."

[ Footnote 21 ] In 1778 there appeared an essay by Vicesimus Knox, M. A., supporting state-enforced Sunday observance on grounds of health and custom as well as of religion. See Whitaker, The Eighteenth-Century English Sunday (1940), 148. It is reported that in 1728 the members of the Gloucester Company or Fraternity of Barbers had undertaken to enforce by fine a self-imposed prohibition of Sunday labor, apparently to assure that those who wanted a six-day work week would not be compelled by competition to labor on the whole seven. See id., at 59-60.

[ Footnote 22 ] IV Blackstone Commentaries (Lewis ed. 1897) *63. Compare the Report of the Committee on the Judiciary on the petition praying "the repeal of all laws . . . enforcing the observation of a day of the week as the Sabbath . . .," Mass. Leg. Docs., H. Doc. No. 125 (1851), 9-10.

[ Footnote 23 ] Report from Select Committee on the Observance of the Sabbath Day, in 7 H. C., Sessional Papers (1831-1832), at pp. 116-117.

[ Footnote 24 ] Id., at p. 6. See id., at pp. 5-8.

[ Footnote 25 ] Id., at pp. 9-10.

[ Footnote 26 ] See Trevelyan's comment quoted in the foreword to Skottowe, The Law Relating to Sunday (1936); Whitaker, Sunday in Tudor and Stuart Times (1933); Whitaker, The Eighteenth-Century English Sunday (1940), especially at 192, 199-201.

[ Footnote 27 ] Addison, writing in No. 112 of the Spectator, July 9, 1711: "I am always very well pleased with a country Sunday, and think, if keeping holy the seventh day were only a human institution, it would be the best method that could have been thought of for polishing and civilizing of mankind. It is certain, the country people would soon degenerate into a kind of savages and barbarians, were there not such frequent returns of a stated time, in which the whole village meet together with their best faces, and in their cleanest habits, to converse with one another upon different subjects, hear their duties explained to them, and join together in adoration of the supreme Being. Sunday clears away the rust of the whole week, not only as it refreshes in their minds the notions of religion, but as it puts both the sexes upon appearing in their most agreeable forms, and exerting all such qualities as are apt to give them a figure in the eye of the village." The Spectator (Am. ed. 1859), at 160. See the attempt to capture the peculiar atmosphere of Sunday in the opening lines to the second book of Crabbe's The Village (1783).

[ Footnote 28 ] In 1895 the late president of a grocers' association testifying on a proposed bill regulating the closing hours of shops urged that the Commons Committee recommend Sunday closing to the House; the many English grocers who wanted their Sunday off were alarmed at the threat of increased trade by competitors which would force their own opening on Sunday. Report from the Select Committee on Shops (Early Closing) Bill (Commons 1895) 158-159. The Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill [H. L.] (1905) did recommend Sunday closing legislation, which it found supported by all but one of the more than three hundred shopkeepers associations whose views were ascertained. The Committee's Report, at VI-VII, quotes the testimony of a witness (a clergyman, it may be noted), that ". . . the great need that impresses all of us busy workers in my part of London is the fact that because of the noise and rush we do want to safeguard the lives of our people by their having one day in seven. It is necessary for brain and for body, quite apart from the religious aspect of the question, for the moment, and by the stress at which we are all living down there Sunday has become practically like any other day. . . . The British population say that they would lose their custom in a great measure if they, in self-defence, did not open on Sunday. The feeling is very dominant that the result is that many of them have to work, whether they like it or not, seven days a week." (See also testimony to the same effect, id., at 3-4, 17, 20, 30, 36, 40.)

[ Footnote 29 ] 1 Edw. VII, c. 22, 34. Continued, as amended, in the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, 77.

[ Footnote 30 ] 2 Geo. V, c. 3, 1, 4, provides for a half-day closing and a half-day off for employees "On at least one week day in each week." ( 1.) Other twentieth century legislation indicates recognition of the interweaving effects of the Sunday laws and other hours-of-labor legislation. The statute of 2 & 3 Eliz. II, c. 57, 12, repealed the Sunday laws affecting the baking industry as part of a new program [366 U.S. 420, 479]   of hours regulation for that industry. The Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, permitting Sunday cinema at local option, subjects the allowance of Sunday operation to the condition that no person may be employed therein who has worked on each of the six days next preceding, except in emergencies, in which case the employee must get his day's rest subsequently.

[ Footnote 31 ] Ministry of Munitions, Health of Munition Workers Committee, Report on Sunday Labour, Memorandum No. 1 [Cmd. 8132] (1915), 3, 5. The Committee had not been directed specifically to investigate [366 U.S. 420, 480]   the Sunday labor question, but in its inquiries generally into hours of labor, it discovered that "employers and workers were specially concerned at the present time with the problem of Sunday labour," and the Committee was "so impressed with the urgency and importance of this question," that it determined to submit a preliminary report on this subject alone. Id., at 3.

[ Footnote 32 ] 26 Geo. V & 1 Edw. VIII, c. 53. See also the Retail Meat Dealers' Shops (Sunday Closing) Act, 1936, 26 Geo. V & 1 Edw. VIII, c. 30. These acts are continued in the Shops Act, 1950, 14 Geo. VI, c. 28, part IV.

[ Footnote 33 ] See 308 H. C. Deb. 2216 and 2223 (5th ser. 1935-1936) (suggesting that persons ought not be made to work on a day when they would want to attend religious services); id., at 2211. The strongest Christian religious sentiment was demonstrated by an opponent of the bill, see 311, id., at 497. Other opposing speakers waved the shibboleth of religious motive in an attempt to discredit the measure. See 308, id., at 2190-2191; 311, id., at 2097; but see 308, id., at 2179-2182; 101 H. L. Deb. 262 (5th ser. 1935-1936) (two opponents admit absence of religious purpose or effect).

[ Footnote 34 ] This is especially significant in England where, of course, no constitutional compulsion exists to encourage Parliament to "make a record" concealing a clandestine sectarian aim.

[ Footnote 35 ] 308 H. C. Deb. 2157-2159 (5th ser. 1935-1936). See also id., at 2165-2167, 2174, 2183, 2186, 2207, 2211, 2213, 2223-2224; 101 H. L. Deb. 254-255, 266 (5th ser. 1935-1936).

[ Footnote 36 ] 308 H. C. Deb. 2209 (5th ser. 1935-1936). See also 311, id., at 453-454, 490. Throughout the debates it is emphasized that the bill was "a Sunday Trading Restriction Bill and not . . . a Bill to have one day's rest in seven." 311, id., at 456; see id., at 2106. Yet it was not the sacred quality of the day that was meant.

[ Footnote 37 ] 308, id., at 2197-2198.

[ Footnote 38 ] See 308, id., at 2186, 2194-2195, 2206; 311, id., at 2095.

[ Footnote 39 ] Although a private member's bill, the measure passed on the second reading in Commons by a 191-to-8 vote. 308, id., at 2230.

[ Footnote 40 ] Even on the Continent the forces which in the latter half of the nineteenth century pressed for the amelioration of the working conditions of the laborer expressed themselves in part in Sunday legislation. Germany, Austria, the Swiss Federal Government, Denmark, Norway and Russia in the 1870's, 80's and 90's promulgated regulations prohibiting Sunday employment - in some cases only for women and children; in others, for all workers in enumerated industries - or closing factories or commercial establishments during part or all of the day. See Congres International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 339-344; Congres International du Repos du Dimanche, Bruxelles, 1897, Rapports et Compte Rendu (1898), 9-24, 139-159, 229-234; Congres International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900), Rapports No. I, II, VII; Mackenzie, ed., The World's Rest-Day, An Account of the Thirteenth International Congress on the Lord's Day, Edinburgh, 1908 (1909), 168-187; Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws . . . Relating to the Observance of the Lord's Day, Mass. Leg. Docs., H. Doc. No. 1160 [366 U.S. 420, 484]   (1907), Appendix, at 57-66. In the late 1880's a German plebiscite conducted by Bismarck showed strong popular support among both employers and employees for Sunday closing. See Congres International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 360-364. The development of the European Sunday-closing movement is reflected in the proceedings of the various conventions of an institution which convened sometimes as the International Congress on Sunday rest, sometimes as the International Congress for weekly rest. See the reports cited, supra; see also, e. g., Jackson, ed., Sunday Rest in the Twentieth Century, An Account of the International Sunday Rest Congress at St. Louis, 1904 (1905); Congresso Internazionale Pro Riposo Settimanale, Resoconto, Milano, 1906 (undated); Sunday, The World's Rest Day, Fourteenth International Lord's Day Congress, Oakland, California, 1915 (1916). At the first meeting of this group, in Geneva in 1876, the delegates displayed a primarily religious outlook, although much was also said of the physical and moral betterment of the worker through periodic rest. Congres sur l'observation du Dimanche, Geneve, 1876, Actes (1876), 120, 187-191, 353-367. A major objective of the Conference was to secure Sunday off for the railroad employees. When, after several intervening conventions, the International Congress met in Paris in 1889, it was under the presidency of Leon Say, and its temper was rather secular than clerical. It took the name of the Congres International du Repos Hebdomadaire, and though it contained members both of conservative-religious and of socialist tendencies, the latter were more vocal and especially took the lead in formulating the Congress' program of state-enforced, rather than merely voluntary, industrial closing. See Congres International du Repos Hebdomadaire, Paris 1889, Compte-Rendu (1890), 83-93, 103-108, 344-380. Yet the group resolved to demand not merely some one indiscriminate day of rest weekly, but Sunday: "1. Sunday rest is possible to varying degrees in every industry. 2. This is the day of rest which is most suitable both to the employer and to the worker, as well from the point of view of the individual as from that of the family, and because it is good that [366 U.S. 420, 485]   the day of rest should be, as much as possible, the same for all." Id., at 160 (translated from the French); see also id., at 126, 167, 197. (Compare the Convention Concerning Weekly Rest in Commerce and Offices, 1957, Convention 106 of the General Conference of the International Labour Organization, Geneva, 1957, H. R. Doc. No. 432, 85th Cong., 2d Sess. 7-12, providing for a weekly day of rest which shall, where possible, "coincide with the day of the week established as a day of rest by the traditions or customs of the country or district." Art. 6, 3. So far as possible, the traditions and customs of religious minorities are to be respected. Art. 6, 4. Similarly, The International Labour Conference's Draft Convention Concerning the Application of the Weekly Rest in Industrial Undertakings, adopted at the Third Session of the General Conference in Geneva in 1921, establishes 24 consecutive hours of rest per seven days for industrial workers, to be fixed, wherever possible "so as to coincide with the days already established by the traditions or customs of the county or district." Art. 2. International Labour Conference, 3d Sess., Draft Conventions & Recommendations (1921), 30.)

At Chicago, four years later, both clerical and laborite perspectives were again represented; George E. McNeill, one of the pioneers of the American labor movement, spoke, and the representative of the Brotherhood of Railway Trainmen and other railroad workers' organizations, L. S. Coffin, supported Sunday rest. The Sunday Problem, Its Present Day Aspects, Papers Presented at the International Congress on Sunday Rest, Chicago, 1893 (1894), 43, 95. In 1897, at Brussels, the spirit was again predominantly secular; the Congress debated extensively the question whether governmental action to compel a day of rest was advisable, or whether the matter could best be handled by persuasion of individual employers; and the sense of the meeting strongly favored governmental intervention. Congres International du Repos du Dimanche, Bruxelles 1897, Rapports et Compte Rendu (1898), 35-47, 161-171, 377-385, 387-393, 538-559. See also Congres International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900). Later meetings of the Congress tended to be religion-oriented, although secular interests continued to find voice. See Jackson, ed., op. cit., supra, at 59-77, 85-96; Mackenzie, ed., op. cit., supra, at 187.

[ Footnote 41 ] See Appendix I to this opinion, post, p. 543. Hereafter the colonial Sunday statutes will be cited by date and Colony.

[ Footnote 42 ] Cobb, The Rise of Religious Liberty in America (1902), 482-517; Sweet, The Story of Religion in America (rev. ed. 1939), 274-280.

[ Footnote 43 ] See James Madison's essay, "Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments." in Fleet, Madison's "Detatched Memoranda," 3 Wm. & Mary Q. 534, 551, 554-556 (1946). See authorities cited in note 3, supra.

[ Footnote 44 ] See Proceedings of the First General Assembly of "The Incorporation of Providence Plantations," and the Code of Laws, 1647 (1847), 50: ". . . and, otherwise than thus what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his GOD . . . ." See Cobb, The Rise of Religious Liberty in America (1902), 423-440.

[ Footnote 45 ] See note 2, supra.

[ Footnote 46 ] New Hampshire enacted Sunday laws in 1785 and 1789, New York in 1788, Virginia in 1786. Rhode Island in 1784 exempted from [366 U.S. 420, 487]   her Sunday labor ban members of Sabbatarian societies, but specified that the exemption did not extend to allow such persons to keep shops open or to do mechanical labor in compact places; in 1798 Rhode Island again enacted a comprehensive Sunday law with the same exceptions.

[ Footnote 47 ] Delaware, 1740.

[ Footnote 48 ] Massachusetts (Plymouth), 1658.

[ Footnote 49 ] Georgia, 1762. See also Maryland, 1696; New York, 1685; South Carolina, 1712. See the statute of 1 Charles I, quoted in text at note 12, supra. The law of the Massachusetts Bay Colony in 1653 recited that playing, walking, drinking, sporting, and traveling on the Lord's day tend "much to the Dishonour of God, the Reproach of Religion, Grieving the Souls of Gods Servants, and the Prophanation of his Holy Sabbath, the Sanctification whereof is sometimes put for all Duties, immediately respecting the service of God contained in the first Table . . . ."

[ Footnote 50 ] Connecticut, 1668.

[ Footnote 51 ] Pennsylvania, 1682; see also the statutes of 1690, 1700. The "Body of Laws" of 1682 declared religious tolerance for all persons believing in a Supreme Being: "But to the end That Looseness, irreligion, and Atheism may not Creep in under pretense of Conscience in this Province, Be It further Enacted . . . That, according to the example of the primitive Christians, and for the ease of the Creation, Every first day of the week, called the Lord's day, People shall abstain from their usual and common toil and labour, That whether Masters, Parents, Children, or Servants, they may the better dispose themselves to read the Scriptures of truth at home, or frequent [366 U.S. 420, 488]   such meetings of religious worship abroad, as may best sute their respective persuasions."

[ Footnote 52 ] The New Haven Code of 1656 provides: "Whosoever shal prophane the Lord's Day, or any part of it, either by sinful servile work, or by unlawful sport, recreation or otherwise, whether wilfully, or in a careless neglect, shal be duly punished by fine, imprisonment, or corporally, according to the nature and measure of the sinn, and offence. But if the court upon examination, by clear and satisfying evidence, find that the sin was proudly, presumptuously, and with a high hand committed against the known command and authority of the blessed God, such a person, therein despising and reproaching the Lord, shal be put to death, that all others may fear and shun such provoaking Rebellious courses. Numb. 15: from 30 to 36 verse." The Plymouth Colony law of 1671 is similar. And see the act published in the Bay Colony in 1647, by which to "deny the moralitie of the fourth commandement" is branded among other heresies and made punishable by banishment. Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 24.

[ Footnote 53 ] Massachusetts, 1692. See also New Hampshire, 1700; North Carolina, 1741. These statutes are patterned on 29 Charles II, c. 7, quoted in text at note 15, supra.

[ Footnote 54 ] Maryland, 1649; cf. Virginia, 1705 (atheism).

[ Footnote 55 ] Maryland, 1692, "An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province."

[ Footnote 56 ] See the Connecticut statute set forth in the Acts and Laws, 1750; Georgia, 1762; Massachusetts, 1761. Compulsory church-attendance laws in the New England Colonies dated from before the middle of the seventeenth century. See the Code of 1650 of the General Court of Connecticut (1822) 46; and the Bay Colony's act published in 1647, Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 20.

[ Footnote 57 ] See note 51, supra. This latter object, not the compulsion of conscience but the liberation of all individuals from Sunday labor and Sunday disturbance so that they might worship God as their own consciences dictated, was, at one period, not infrequently put forward as the justifying purpose of the Sunday laws. State v. Ambs, 20 Mo. 214, 218 (1854); George v. George, 47 N. H. 27, 34 (1866); Lindenmuller v. People, 33 Barb. 548, 564 (N. Y. Sup. Ct., 1861); Johnston v. Commonwealth, 22 Pa. 102, 115 (1853). As the habits and preoccupations of the people themselves changed, it was but a short step from this reasoning to the recognition that Sunday laws serve the purpose of providing leisure and peace favorable to the pursuit of whatever aspirations, religious or secular, various individuals may choose. See text at note 35, supra. Sensitive to emerging new popular needs and desires, legislatures were later to reshape the Sunday laws by complex patterns of exceptions permitting numerous recreational activities which, far from according with the original puritanical inspiration of the Lord's day acts, were precisely those games and sports which colonial legislation most severely condemned. See, e. g., Virginia, 1610; Connecticut, 1668. The development of these evolving exceptions is discussed briefly in text at notes 124-131, infra: its product may be seen in Appendix II to this opinion, post, p. 551. What it is significant to note at this point is that the continuity which marks the history of the Sunday laws is a continuity both of enduring and changing social demands. The enduring feature has been man's need for a day set apart, a day of community repose: this he has persistently, continuingly demanded. The changing feature has been the way in which he chooses to spend his day. The need which the "Body of Laws" recognized in Pennsylvania in 1682 was [366 U.S. 420, 490]   both the same and different than that expressed by Luther, see note 20, supra, and that which twentieth century Sunday legislation accommodates. It is the need for a recurrent time when the common concerns of the working week cease to make their demands, and there is a peace that is general to the community - whether the individual finds it at church, at home, at the beach, in the country, or at the baseball game.

[ Footnote 58 ] 3 Records of the Colony of Rhode Island and Providence Plantations, 1678-1706 (1858), 30-31. The first Rhode Island Sunday law was an enactment of 1673 prohibiting the dispensing of alcoholic beverages on Sunday. Its preamble is this:

"Voted, this Assembly consideringe that the King hath granted us that not any in this Collony are to be molested in the liberty of their consciences, who are not disturbers of the civill peace, and wee are perswaded that a most flourishing civil government with loyalty may be best propagated where liberty of conscience by any corporall power is not obstructed that is not to any unchastness of body, and not by a body doeinge any hurt to a body, neither indeavoringe soe to doe; and although wee know by man not any can be forced to worship God or for to keep holy or not to keep holy any day; but forasmuch as the first dayes of weeks, it is usuall for parents and masters not to imploy their children or servants as upon other dayes, and some others alsoe that are not under such government, accountinge it as a spare time, and soe spend it in debaistnes or tipplinge and unlawfull games and wantonness, and most abhominably there practiced by those that live with the English at such times to resort to townes. Therefore, this Assembly, not to oppose or propagate any worship, but as by preventinge debaistnes, although wee know masters or parents cannot and are not by violence, to indeavor to force any under their govornment, to any worshipper from any worshipp, that is not debaistnes or disturbant to the civill peace, but they are to require them, and if that will not prevaile, if they can they should compell [366 U.S. 420, 491]   them not to doe what is debaistnes, or uncivill or inhuman, not to frequent any imodest company or practices."

[ Footnote 59 ] See New Jersey, 1798: Delaware, 1795 (this statute does recite that its purpose is to deter those who "profane" the Lord's day): New Hampshire, 1785 and 1789 (these acts were, however, recommended to be read by ministers to their congregations). It is true that the Pennsylvania statute of 1794 is an act for the prevention of immorality and that the New Jersey statute of 1790 is "An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . .," but even these enactments show a very different tenor than that of earlier legislation in the same Colonies. See, e. g., Pennsylvania, 1682; New Jersey, 1693.

[ Footnote 60 ] Compare New York's legislation of 1685, 1695.

[ Footnote 61 ] An Act to enforce the due observation of the Sabbath, 1 Laws of Vermont (1808) 275.

[ Footnote 62 ] The earliest law was that of 1610. For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10-11. This was followed by an Act of 1623-1624. 1 Hening, Statutes of Virginia (1823), 123. And see id., at 144.

[ Footnote 63 ] See Appendix I to this opinion, post, p. 549. The most important statutes are those of 1629 and 1705, 1 Hening, Statutes of Virginia (1823), 144; 3 Hening, Statutes of Virginia (1823), 358.

[ Footnote 64 ] 9 Hening, Statutes of Virginia (1821), 109, 111-112.

[ Footnote 65 ] Id., at 164.

[ Footnote 66 ] 12 Hening, Statutes of Virginia (1823), 84-86.

[ Footnote 67 ] 2 Papers of Thomas Jefferson (Boyd ed. 1950) 305-324, 545-553. For the story of the Revision, see Jefferson's Autobiography, in I Writings of Thomas Jefferson (Memorial ed. 1903) 62-67; I Randall, Life of Thomas Jefferson (1858), 202-203, 208, 216 et seq.

[ Footnote 68 ] 2 Papers of Thomas Jefferson (Boyd ed. 1950) 555. The bill was entitled: "A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." It also forbade the arrest for any civil cause of any minister of the gospel while engaged in public preaching or performing religious worship in any church, and punished any person who should maliciously disturb any worshipping congregation or misuse any minister therein. There is evidence to attribute the original draft of the provision to Jefferson, id., at 314-321; in any event, we know that, with the other revisers, he studied and reworked every bill in the revision until it satisfied him. Autobiography, in I Writings of Thomas Jefferson (Memorial ed. 1903) 66.

[ Footnote 69 ] Journal of the House of Delegates, Commonwealth of Virginia, Oct. 17, 1785 (1828), 12-14.

[ Footnote 70 ] 12 Hening, Statutes of Virginia (1823), 336. The wording of the statute as passed differs slightly from that of the bill reported by the revisers.

[ Footnote 71 ] 2 Shepherd, Statutes of Virginia (1835), 149.

[ Footnote 72 ] Appendix II to this opinion, post, p. 551. Only Alaska has no such legislation.

[ Footnote 73 ] See Delaware, Iowa, Wyoming. Many States which have broader Sunday statutes also provide special regulations for the sale of intoxicants on Sunday. Significantly, even those who have assailed the ban on Sunday labor as an unconstitutional religious establishment assert the constitutionality of Sunday alcohol control. See, e. g., Lewis, A Critical History of Sunday Legislation (1888), ix. They point to the contemporary justification for the prohibition of liquor sales on that day: the greater danger of abusive use of alcohol during a time when virtually all persons are at leisure. Admitting that there are also cogent contemporary reasons for a Sunday labor ban, they assert that the history of Sunday labor legislation reveals that these legitimate reasons are not those which in fact underlie it. But the roots of Sunday alcohol control are as deeply bedded in early Sabbath anti-tippling statutes as are those of Sunday labor laws in Lord's day acts. See the Connecticut statute set forth in the Acts and Laws, 1750; Delaware, 1740; Maryland, 1674; Massachusetts Bay, 1653; Massachusetts, 1761; New Hampshire, 1715; New York, 1685. See State v. Eskridge, 31 Tenn. 413 (1852). Indeed, the most severe efforts to enforce Sunday prohibitions in England were for centuries directed against tippling. See Whitaker, The Eighteenth-Century English Sunday (1940), passim; Whitaker, Sunday in Tudor and Stuart Times (1933), passim.

[ Footnote 74 ] See North Carolina. Many States with more comprehensive bans also specifically proscribe hunting. See, e. g., Connecticut, Kentucky, Mississippi, Tennessee, Virginia.

[ Footnote 75 ] See, e. g., Arizona, Colorado, Montana.

[ Footnote 76 ] Oregon. Cf. Michigan, New Jersey, Pennsylvania, Rhode Island.

[ Footnote 77 ] Colorado, Wisconsin. Cf., e. g., Connecticut, Maine, Michigan, Pennsylvania.

[ Footnote 78 ] Some States have specific legislation enabling municipalities to regulate Sunday business (e. g., Nebraska, North Dakota), or to suppress desecration of the Sabbath (e. g., Michigan, Mississippi, Rhode Island). Often such authority is written into a city's charter. See, e. g., State v. McGee, 237 N.C. 633, 75 S. E. 2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802 . In some cases charter authority to regulate a given business or activity has been held to support Sunday regulation of that business or activity. See, e. g., Hicks v. City of Dublin, 56 Ga. App. 63, 191 S. E. 659 (1937). Where no other enabling provision is found, it is virtually unanimously held that power to enact Sunday ordinances exists under the general grant of police power to a municipality. E. g., In re Sumida, 177 Cal. 388, 170 P. 823 (1918); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894); Karwisch v. Mayor of Atlanta, 44 Ga. 204 (1871); Humphrey Chevrolet, Inc., v. City of Evanston, 7 Ill. 2d 402, 131 N. E. 2d 70 (1955); Komen v. City of St. Louis, 316 Mo. 9, 289 S. W. 838 (1926) (subsequently overruled on another point); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N. J. Super. 187, 106 A. 2d 9 (1954); Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533 (1921); Mayor of Nashville v. Linck, 80 Tenn. 499 (1852); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927); State ex rel. Smith v. Wertz, 91 W. Va. 622, 114 S. E. 242 (1922).

[ Footnote 79 ] There have been more than seventy amendments to the Massachusetts Sunday regulation over the past century. See the opinion below, 176 F. Supp. 466, 472, n. 2. The latest amendments prior to the bringing of suit in the Gallagher case were in 1957. Mass. Acts 1957, cc. 300, 356, 16, 17, 18. By Mass. Acts 1960, c. 812, 3, the provisions of chapter 136, Massachusetts' general Sunday regulations, were made applicable to all or part of certain legal holidays, e. g., January first, July fourth, Thanksgiving Day. The Pennsylvania statute which is considered here was enacted in 1959. Pa. Laws 1959, No. 212. And in the same year that State's Lord's Day statute was three times amended. Pa. Laws 1959, Nos. 278, 540, 684. Maryland amended the provisions which are now its Code, Art. 27, 492 to 534A, seven times in 1959. Maryland Laws 1959, cc. 232, 236, 248, 503, 510, 715, 811.

[ Footnote 80 ] E. g., N. D. Laws 1959, c. 131; Tenn. Acts 1957, c. 219.

[ Footnote 81 ] E. g., Fla. Laws 1959, c. 59-295; Me. Laws 1959, c. 302; Okla. Laws 1959, p. 210.

[ Footnote 82 ] Maine, Minnesota, Mississippi, North Dakota, Oklahoma, West Virginia. Cf. Indiana, Missouri. But see Alabama, Illinois, New Mexico, Ohio.

Language can also be found in judicial opinions interpreting Sunday statutes which attributes religious purpose to them. See O'Donnell v. Sweeney, 5 Ala. 467, 469 (1843); Weldon v. Colquitt. 62 Ga. 449, 451-452 (1879); State v. Beaudette, 122 Me. 44, 45, 118 A. 719, 720 (1922); Pearce v. Atwood, 13 Mass. 324, 346-348 (1816); Bennett v. Brooks, 91 Mass. 118, 119-121 (1864); Davis v. City of Somerville, [366 U.S. 420, 498]   128 Mass. 594, 596 (1880); Commonwealth v. White, 190 Mass. 578, 580-582, 77 N. E. 636, 637 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N. E. 835, 836-837 (1923); Allen v. Duffie, 43 Mich. 1, 7-9, 4 N. W. 427, 431-433 (1880); Brimhall v. Van Campen, 8 Minn. 13, 22 (1862); Kountz v. Price, 40 Miss. 341, 348 (1866); People v. Ruggles, 8 Johns. 290, 296-297 (N. Y. Sup. Ct. 1811); Sellers v. Dugan, 18 Ohio 489, 490, 492 (1849); Commonwealth v. American Baseball Club, 290 Pa. 136, 143, 138 A. 497, 499 (1927); Commonwealth v. Coleman, 60 Pa. Super. 380, 385-386 (1915); Parker v. State, 84 Tenn. 476, 477-479, 1 S. W. 202-203 (1886); Graham v. State, 134 Tenn. 285, 292, 183 S. W. 983, 985 (1915). And see Smith v. Boston & Maine R. Co., 120 Mass. 490, 493 (1876); Society for the Visitation of the Sick v. Commonwealth, 52 Pa. 125, 135 (1866). Even some decisions sustaining the constitutionality of the statutes have found their justification, in part, in the preservation of Christian traditions. Shover v. State, 10 Ark. 259 (1850); State v. Ambs, 20 Mo. 214 (1854); State ex rel. Temple v. Barnes, 22 N. D. 18, 132 N. W. 215 (1911); City Council v. Benjamin, 2 Strob. L. 508 (S. C. 1848). Cf. Varney v. French, 19 N. H. 233 (1848); Adams v. Gay, 19 Vt. 358, 366 (1847). But most of these latter decisions date from an era when day-of-rest conceptions were not yet fully developed: the then prevailing notions of the police power did not accord to state legislatures authority to protect a man from the harm to himself of uninterrupted labor. Compare Thomasson v. State, 15 Ind. 449, 454 (1860) (speaking of the "patriarchal theory of government") with, e. g., People v. Klinck Packing Co., 214 N. Y. 121, 108 N. E. 278 (1915) (sustaining New York's six-day-week statute by analogy to the Sunday law cases). The large majority of decisions applying the Sunday laws in cases where their constitutionality as possible infringements of religious liberty was not in issue have regarded the laws as having either an exclusively secular function or a function accommodating both the civil and religious needs of the community. As to the former, see, e. g., State v. Shuster, 145 Conn. 554, 145 A. 2d 196 (1958); Rogers v. State, 60 Ga. App. 722, 4 S. E. 2d 918 (1939); Carr v. State, 175 Ind. 241, 93 N. E. 1071 (1911); [366 U.S. 420, 499]   Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N. E. 2d 808 (1958); City of Harlan v. Scott, 290 Ky. 585, 162 S. W. 2d 8 (1942); Levering v. Park Commissioners, 134 Md. 48, 106 A. 176 (1919); State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N. W. 325 (1904); City of St. Louis v. DeLassus, 205 Mo. 578, 104 S. W. 12 (1907) (subsequently overruled on another point); State v. Chicago, Burlington & Quincy R. Co., 239 Mo. 196, 143 S. W. 785 (1912); State v. Malone, 238 Mo. App. 939, 192 S. W. 2d 68 (1946); More v. Clymer, 12 Mo. App. 11 (1882); Auto-Rite Supply Co. v. Mayor of Woodbridge, 25 N. J. 188, 135 A. 2d 515 (1957); Rodman v. Robinson, 134 N.C. 503, 47 S. E. 19 (1904); State v. Ricketts, 74 N.C. 187 (1876); Bloom v. Richards, 2 Ohio St. 387 (1853); McGatrick v. Wason, 4 Ohio St. 566 (1855); Krieger v. State, 12 Okla. Cr. 566, 160 P. 36 (1916); State v. Smith, 19 Okla. Cr. 184, 198 P. 879 (1921); State v. James, 81 S. C. 197, 62 S. E. 214 (1908); Francisco v. Commonwealth, 180 Va. 371, 23 S. E. 2d 234 (1942); State v. Baltimore & Ohio R. Co., 15 W. Va. 362 (1879); State ex rel. Smith v. Wertz, 91 W. Va. 622, 114 S. E. 242 (1922); and see Stark v. Backus, 140 Wis. 557, 123 N. W. 98 (1909). As to the latter, see Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388 (1917); State v. Hurliman, 143 Conn. 502, 123 A. 2d 767 (1956); Richmond v. Moore, 107 Ill. 429 (1883); State v. Mead, 230 Iowa 1217, 300 N. W. 523 (1941); Cleveland v. City of Bangor, 87 Me. 259, 32 A. 892 (1895); Matter of Rupp. 33 App. Div. 468, 53 N. Y. S. 927 (1898); People v. Moses, 140 N. Y. 214, 35 N. E. 499 (1893); Moore v. Owen, 58 Misc. 332, 109 N. Y. S. 585 (N. Y. Sup. Ct. 1908); Melvin v. Easley, 52 N.C. 356 (1860): Johnston v. Commonwealth, 22 Pa. 102 (1853). Cf. the cases finding foundation for the laws in long-established usage. Commonwealth v. Louisville & Nashville R. Co., 80 Ky. 291 (1882); Mohney v. Cook. 26 Pa. 342 (1855); Commonwealth v. Nesbit, 34 Pa. 398 (1859); Commonwealth v. Jeandelle, 3 Phila. 509 (Pa. Q. S. 1859). And see People v. Law. 142 N. Y. S. 2d 440 (Spec. Sess. 1955); People v. Binstock, 7 Misc. 2d 1039, 170 N. Y. S. 2d 133 (Spec. Sess. 1957).

[ Footnote 83 ] State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N. Y. Leg. Doc. No. 48 (1953), 9. See Report of the Committee on the Judiciary, on the petition praying the repeal of the laws for the observance of the sabbath, &c., 5 State of New York, Assembly Docs., Doc. No. 262 (1838). This latter report, denying any intention to enforce the duties of religious conscience, id., at 7, regarded retention of the Sunday law as advisable, "Viewing the sabbath merely as a civil institution, venerable from its age, consecrated as a day of rest by the usage of our fathers, and cherished by the common consent of mankind throughout the nations of christendom . . . ." Id., at 5. "The experience of mankind has shewn that occasional rest is necessary for the health of the laborer and for his continued ability to toil; that `the interval of relaxation which Sunday affords to the laborious part of mankind, contributes greatly to the comfort and satisfaction of their lives, both as it refreshes them for the time, and as it relieves their six days' labor by the prospect of a day of rest always approaching . . . .'" Id., at 7. The Committee did regard as a third consideration of importance the necessity of taking account of the moral temper of the Christian majority of the community, and of affording the laborer an opportunity to attend church if he so wished. Id., at 6-8.

[ Footnote 84 ] "The committee are of one mind as to the need of a weekly day of rest for the preservation of the health and strength of the community, and would therefor recommend legislation to secure to all citizens the right of one clear day's rest in seven. In so far as possible, Sunday should be maintained as the weekly day of rest; and whenever the needs of the community, public convenience or demand compel labor on Sunday, persons thus employed should be given a legal right to rest on some other day of the week." Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws . . . Relating to the Observance of the Lord's Day, Mass. Leg. Docs., H. Doc. No. 1160 (1907), 9. For a similar, more recent expression, see Report Submitted by the Legislative Research Council Relative to Legal Holidays and Their Observance, Mass. Leg. Docs., S. Doc. No. 525 (1960), 24-25.

In the legislative debates on the bill which became the 1959 Pennsylvania Sunday retail sales act, the charge of religious purpose [366 U.S. 420, 501]   was persistently made by the bill's opponents, but such a purpose was disavowed by every speaker who favored the bill. 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1137-1140, 2564-2565, 2682-2685. See, e. g., the remarks of Mr. Walker, id., at 1139: "As I read this bill, I find nothing in it which is of a religious nature. The bill is prompted by the thousands of letters that we have all received in the Senate of Pennsylvania, asking us to do something for the men and women who work in the department stores. These people are not asking to go to church; they are asking for a day of rest." It is apparent even from the objections raised by the opponents that various economic interests, among them those of organized retailers' and labor groups, were influential in supporting the measure. See especially id., at 2682-2683.

[ Footnote 85 ] Jacoby, Remember the Sabbath Day? - The Nature and Causes of the Changes in Sunday Observance Since 1800 (Dissertation in Sociology, Microfilm, University of Pennsylvania Library (1942)), pp. 137-140, 147-148, 154-155, 200-202, c. 9; Kirstein, Stores and Unions (1950), 19-21; State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N. Y. Leg. Doc. No. 48 (1953), 16 et seq.; Report of the Unpaid Special Commission to Investigate . . . the Laws Relating to the Observance of the Lord's Day, Mass. Leg. Docs., H. Doc. No. 2413 (1954), 6; 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139, 2553. See the Sunday Business resolution of the 1959 and 1960 Conventions of the National Retail Merchants Association, 41 Stores 6-7 (Feb. 1959); 42 Stores 13 (Feb. 1960); and see note 40 supra. Frequently legislation closing establishments of a given trade is the product of lobbying efforts by associations of traders seeking to quash the competitive pressures which force unwanted Sunday labor. See Gundaker Central Motors, Inc., v. Gassert, 23 N. J. 71, 127 A. 2d 566 (1956), app. dism'd for want of a substantial federal question, 354 U.S. 933 ; Breyer v. State, 102 Tenn. 103, 50 S. W. 769 (1899). But see Sunday Observance, Hearings before the Subcommittee on Judiciary of the Committee on the District of Columbia, House of Representatives, on H. R. 7189 and H. R. 10311, 69th Cong., 1st [366 U.S. 420, 502]   Sess. (1926) (labor and trade groups oppose Sunday legislation supported primarily by clerical faction). Increasingly, the religious proponents of Sunday legislation have themselves come to couch their arguments in terms of hygienic and social, rather than transcendental, values. See Gilfillan, The Sabbath Viewed in the Light of Reason, Revelation, and History (Am. ed. 1862), 209-227; Floody, Scientific Basis of Sabbath and Sunday (2d ed. 1906), 311-315; McMillan, Influence of the Weekly Rest-Day on Human Welfare (1927).

[ Footnote 86 ] Mass. Gen. Laws Ann., 1958, c. 149, 47 to 51. Section 47 provides:

"Whoever, except at the request of the employee, requires an employee engaged in any commercial occupation or in the work of any industrial process not subject to the following section or in the work of transportation or communication to do on Sunday the usual work of his occupation, unless he is allowed during the six days next ensuing twenty-four consecutive hours without labor, shall be punished by a fine of not more than fifty dollars; but this and the following section shall not be construed as allowing any work on Sunday not otherwise authorized by law."

"Every employer of labor engaged in carrying on any manufacturing, mechanical or mercantile establishment or workshop . . . shall allow every person . . . [with exceptions: see 49, 50] employed in such manufacturing, mechanical or mercantile establishment or workshop at least twenty-four consecutive hours of rest, which shall include an unbroken period comprising the hours between eight o'clock in the morning and five o'clock in the evening, in every seven consecutive days. No employer shall operate any such manufacturing, mechanical or mercantile establishment or workshop on Sunday unless he has complied with section fifty-one. . . ."

"Before operating on Sunday, every employer subject to section forty-eight . . . shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each. No [366 U.S. 420, 503]   employee shall be required or allowed to work on the day of rest designated for him."

[ Footnote 87 ] See Ill. Rev. Stat., 1959, c. 48, 8a to 8g; N. H. Rev. Stat. Ann., 1955 275.32, 275.33; N. Y. Lab. Law 161; Ore. Wage and Hour Comm'n Orders Nos. 8 (1959), 9 (1952), 12 (1953), CCH Lab. Law Rep., State Laws (1960), pp. 57,561, 57,562, 57,564. Cf. West's Wis. Stat. Ann., 1957, 103.85. And see Purdon's Pa. Stat. Ann., 1952, Tit. 43, 361.

[ Footnote 88 ] Purdon's Pa. Stat. Ann., 1960 Supp., Tit. 4, 60. See also Me. Rev. Stat., 1954, c. 134, 41; Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, 1 (1) (a). Cf. P. R. Laws Ann., 1955, Tit. 29, 295.

[ Footnote 89 ] P. R. Laws Ann., 1955, Tit. 33, 2201. Cf. Colo. Rev. Stat. Ann., 1953, 27-1-4; R. I. Gen. Laws, 1956, 5-16-5.

[ Footnote 90 ] R. I. Gen. Laws, 1956, 25-1-6, 25-1-8; S. C. Code, 1952, Tit. 64, 5. See also Mullis v. Celanese Corp., 234 S. C. 380, 108 S. E. 2d 547 (1959).

[ Footnote 91 ] See Mead, The Pattern of Leisure in Contemporary American Culture, 313 Annals of The American Academy of Political and Social Science 11-12 (Sept. 1957).

[ Footnote 92 ] Among the many examples that might be found in Frazer's Golden Bough, see his discussions of incest and murder, The Golden Bough (3d ed., Am. reprint 1951), II The Magic Art 107-117; Taboo and the Perils of the Soul 218-219. For other classic instances in various fields, see Weston, From Ritual to Romance (Anchor ed. 1957), passim, especially 81-100; Gilbert Murray, "Excursus on the Ritual Forms Preserved in Greek Tragedy," in Harrison, Themis (1912), 341 et seq.; Kluckhohn and Leighton, The Navaho (1946), 162-163; Tawney, Religion and The Rise of Capitalism (3d Mentor ed. 1950), passim.

See Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 2: "Sunday rest laws, from the Fourth Commandment downwards, have always been social as well as religious in intention, seeking to provide a periodic rest from daily toil as well as an opportunity for religious observance." Among the weekly-rest legislation of the many nations surveyed by the International Labor Organization's pertinent reports, the system most common is to provide for a uniform rest day, usually on Sunday. See, id., passim, especially at 71-74; Weekly Rest in Commerce and Offices, Report VII (1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), passim, especially at 18, 24-26. "This tendency to ensure that the weekly rest is taken at the same time by all workers on the day established by tradition or custom has an obvious social purpose, namely to enable the workers to take part in the life of the community and in the special forms of recreation which are available on certain days." Id., at 24. Commenting on the world-wide practice of weekly rest, the ILO reporters observe: "Quite often the practice originated as a religious observance and developed into a tradition which has persisted despite the disappearance of the original reasons or the decline in the part played by religious institutions in the social structure. At a very early stage this religious observance was backed by civil law and even today traces of this can often be found in constitutions and civil codes, in municipal by-laws and in the regulations of many countries concerning opening and closing hours of commercial and other establishments. Labour legislation has endeavoured to maintain and extend this practice in the light of the economic needs of modern society . . . ." Id., at 3.

[ Footnote 93 ] The District Court in the Gallagher case believed that the Massachusetts Lord's day statute could not reasonably be regarded as a day-of-rest provision, first, because its extensive exceptions allowed many persons to labor seven days a week and, second, because Massachusetts has other statutes providing for twenty-four consecutive hours of rest every seven days. Mass. Gen. Laws Ann., 1958, c. 149, 47 to 51. These latter provisions, however, by their express terms, supplement, do not supplant, the Sunday prohibitions. The two objections to some extent answer each other: the existence of the six-day law is justified by, and in part provides for, the deficiencies of the Lord's day statute as day-of-rest legislation. But, in any event, the Lord's day statute is not merely day-of-rest legislation. It is common-day-of-rest legislation. To certain persons who, for reasons deemed compelling by the Massachusetts Legislature, cannot share in this common day - simply because not all activity can cease, even on Sunday - the Labor Code at least assures a day of physical rest. Compare the conclusions found in Weekly Rest in Commerce and Offices, Report VII (1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 52. It may be noted that a large majority of the thirty-four States having comprehensive Sunday restrictions also have some six-day-week provisions in their labor or child-labor codes or regulations. See Appendix II to this opinion, post, p. 551.

The District Court, in concluding that the Massachusetts Lord's day statute is religious legislation, took account of its origins in colonial laws, of its language and the language of the Massachusetts courts in cases applying it, of the statutory exceptions permitting certain recreational activity only in the afternoon hours and, in some cases, at a designated distance from places of worship, and of statements in an amicus brief indicating that amici had an interest in preventing the secularization of Sunday. The implications of history and of the statutory language have already been discussed herein. The opinions in the Massachusetts cases adverted to by the court below, the latest decided in 1923, are insufficient to establish that the [366 U.S. 420, 506]   Massachusetts legislation as applied in 1960 to prohibit the Sunday operation of supermarkets lacks substantial secular purposes and effects. See note 101, infra. The validity of applications of the statute possibly affected by the afternoon-hour exceptions is not now presented; suffice to say that these exceptions do not render the legislation unconstitutional in its entirety or in the circumstances of this litigation. And the purposes, views and intentions of amici, of course, cannot be attributed to the legislature of the State of Massachusetts.

[ Footnote 94 ] See text at note 37, supra. Cf. Report of the Unpaid Special Commission to Investigate . . . the Laws Relating to the Observance of the Lord's Day, Mass. Leg. Docs., H. Doc. No. 2413 (1954), 9: "The wave of materialism which is sweeping the country makes it most important that one day be set aside for worship, rest and to give all persons an opportunity to strengthen the bulwark of our American civilization - the home." Compare Report on the Weekly Rest-Day in Industrial and Commercial Employment, Report VII, International Labour Conference, 3d Sess., Geneva, 1921 (1921), 127: "Social custom requires that the same rest-day should as far as possible be accorded to the members of the same working family and to the working class community as a whole."

[ Footnote 95 ] See note 92, supra. See also the resolution of the International Congress for weekly rest, 1889, quoted in note 40, supra.

[ Footnote 96 ] Ex parte Newman, 9 Cal. 502. Justice Field's dissent in this case has become a leading pronouncement on the constitutionality of Sunday laws.

[ Footnote 97 ] Ex parte Andrews, 18 Cal. 678. The controlling California constitutional guarantee of religious freedom comports only an analogue to the First Amendment's "free exercise," not an analogue to the "establishment" clause.

[ Footnote 98 ] E. g., Petit v. Minnesota, 177 U.S. 164 . Cf. Hennington v. Georgia, 163 U.S. 299 ; Soon Hing v. Crowley, 113 U.S. 703, 710 . In re Sumida, 177 Cal. 388, 170 P. 823 (1918); McClelland v. City of Denver, 36 Colo. 486, 86 P. 126 (1906) (barbering prohibited); Rosenbaum v. City & County of Denver, 102 Colo. 530, 81 P.2d 760 (1938) (automobile sales prohibited); Mosko v. Dunbar, 135 Colo. 172, 309 P.2d 581 (1957) (automobile sales prohibited); Walsh v. State, 33 Del. [3 W. W. Harr.] 514, 139 A. 257 (1927), semble; Gillooley v. Vaughan, 92 Fla. 943, 956, 110 So. 653, 657 (1926) (cabarets and cinema prohibited); State v. Dolan, 13 Idaho 693, 92 P. 995 (1907); State v. Cranston, 59 Idaho 561, 85 P.2d 682 (1938); McPherson v. Village of Chebanse, 114 Ill. 46, 28 N. E. 454 (1885) (ordinance held authorized by police power); Voglesong v. State, 9 Ind. 112 (1857); Foltz v. State, 33 Ind. 215 (1870); State v. Linsig, 178 Iowa 484, 159 N. W. 995 (1916); People v. DeRose, 230 Mich. 180, 203 N. W. 95 (1925) (ordinance closing markets held authorized by police power); In re Berman, 344 Mich. 598, 75 N. W. 2d 8 (1956) (ordinance prohibiting sale of furniture held authorized by police power); State v. Dean, 149 Minn. 410, 184 N. W. 275 (1921); Power v. Nordstrom, 150 Minn. 228, 184 N. W. 967 (1921) (ordinance closing cinema, shows, theater, held authorized by police power); Paramount-Richards Theatres, Inc., v. City of Hattiesburg, 210 Miss. 271, 49 So.2d 574 (1950); State v. Loomis, 75 Mont. 88, 242 P. 344 (1925) (closing dance halls); Gundaker Central Motors, Inc., v. Gassert, 23 N. J. 71, 127 A. 2d 566 (1956), app. dism'd for want of a substantial federal question, 354 U.S. 933 (automobile trading prohibited); People v. Havnor, 149 N. Y. 195, 43 N. E. 541 (1896), writ of error dism'd, 170 U.S. 408 (barbering prohibited); State v. Weddington, 188 N.C. 643, 125 S. E. 257 (1924) (ordinance held authorized by police power); State v. Haase, 97 Ohio App. 377, 116 N. E. 2d 224 (1953); Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533 (1921) (ordinance closing cinema and theaters held authorized by police power); Ex parte Johnson, 77 Okla. Cr. 360, 141 P.2d 599 (1943) (barbering prohibited); Ex parte Northrup, 41 Ore. 489, 69 [366 U.S. 420, 509]   P. 445 (1902) (barbering prohibited); State v. Nicholls, 77 Ore. 415, 151 P. 473 (1915); Breyer v. State, 102 Tenn. 103, 50 S. W. 769 (1899) (barbering prohibited); State v. Sopher, 25 Utah 318, 71 P. 482 (1903); Norfolk & Western R. Co. v. Commonwealth, 93 Va. 749, 24 S. E. 837 (1896) (statute prohibiting operation of railroads held sustainable as exercise of police power); State v. Nichols, 28 Wash. 628, 69 P. 372 (1902); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927) (comprehensive ordinance found authorized by police power). See also Kreider v. State, 103 Ark. 438, 440, 147 S. W. 449, 450 (1912); State v. Miller, 68 Conn. 373, 377-378, 36 A. 795, 796 (1896); State v. Diamond, 56 N. D. 854, 857-858, 219 N. W. 831, 832-833 (1928); Rich v. Commonwealth, 198 Va. 445, 449, 453, 94 S. E. 2d 549, 552, 555 (1956). Compare Pacesetter Homes, Inc., v. Village of South Holland, 18 Ill. 2d 247, 163 N. E. 2d 464 (1960), admitting legislative power to prohibit Sunday activity disturbing to the community, but striking down a blanket closing ordinance with virtually none of the usual exceptions as too extreme to be justified under this rationale.

[ Footnote 99 ] E. g., Frolickstein v. Mayor of Mobile, 40 Ala. 725 (1867); Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83 (1953) (issue not raised by litigants; court nevertheless considers it); Elliott v. State, 29 Ariz. 389, 242 P. 340 (1926) (dictum); Shover v. State, 10 Ark. 259 (1850); Scales v. State, 47 Ark. 476, 1 S. W. 769 (1886); Ex parte Koser, 60 Cal. 177 (1882); Karwisch v. Mayor of Atlanta, 44 Ga. 204 (1871), settling the issue left open in Sanders v. Johnson, 29 Ga. 526 (1859); Humphrey Chevrolet, Inc., v. City of Evanston, 7 Ill. 2d 402, 131 N. E. 2d 70 (1955) (at least as applied to corporate and non-Sabbatarian parties); State v. Blair, 130 Kan. 863, 288 P. 729 (1930); State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Strand Amusement Co. v. Commonwealth, 241 Ky. 48, 43 S. W. 2d 321 (1931), semble; State v. Bott. 31 La. Ann. 663 (1879) (forbidding liquor sales); State ex rel. Walker v. Judge, 39 La. Ann. 132, 1 So. 437 (1887); Judefind v. State, 78 Md. 510, 28 A. 405 (1894) (considered dictum); Hiller v. State, 124 Md. 385, 92 A. 842 (1914) (prohibiting sports); Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Chernock, 336 Mass. 384, 145 N. E. 2d 920 (1957); Scougale v. Sweet, 124 Mich. 311, 82 N. W. 1061 (1900) (considered dictum); 510 State v. Petit, 74 Minn. 376, 77 N. W. 225 (1898), aff'd, 177 U.S. 164 ; State v. Weiss, 97 Minn. 125, 105 N. W. 1127 (1906); State v. Ambs, 20 Mo. 214 (1854); Komen v. City of St. Louis, 316 Mo. 9, 289 S. W. 838 (1926) (closing bakeries) (subsequently overruled on another point); In re Caldwell, 82 Neb. 544, 118 N. W. 133 (1908), semble; Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N. W. 332 (1931) (prohibiting automobile sales), semble; Two Guys from Harrison, Inc., v. Furman, 32 N. J. 199, 160 A. 2d 265 (1960); Lindenmuller v. People, 33 Barb. 548 (N. Y. Sup. Ct. 1861) (closing theaters); Neuendorff v. Duryea, 69 N. Y. 557 (1877) (same); People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907 ; State v. McGee, 237 N.C. 633, 75 S. E. 2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802 ; State ex rel. Temple v. Barnes, 22 N. D. 18, 132 N. W. 215 (1911) (closing theaters); State v. Powell, 58 Ohio St. 324, 50 N. E. 900 (1898) (prohibiting sports); State v. Kidd, 167 Ohio St. 521, 150 N. E. 2d 413 (1958), app. dism'd for want of a substantial federal question, 358 U.S. 131, 132 ; Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); Commonwealth v. Bauder, 188 Pa. Super. 424, 145 A. 2d 915 (1958); City Council v. Benjamin, 2, Strob. L. 508 (S. C. 1848); Xepapas v. Richardson, 149 S. C. 52, 146 S. E. 686 (1929); Ex parte Sundstrom, 25 Tex. App. 133, 8 S. W. 207 (1888); Sayeg v. State, 114 Tex. Cr. R. 153, 25 S. W. 2d 865 (1930), semble; Clark v. State, 167 Tex. Cr. R. 204, 319 S. W. 2d 726 (1959), semble; Pirkey Bros. v. Commonwealth, 134 Va. 713, 114 S. E. 764 (1922) (issue not raised by litigants; court nevertheless considers it); Crook v. Commonwealth, 147 Va. 593, 136 S. E. 565 (1927) (same); State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ of error dism'd, 210 U.S. 438 (prohibiting barbering); State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949). Following the decision in the Gallagher case below, and relying on it, a Pennsylvania Court of Quarter Sessions recently held the 1959 Pennsylvania Sunday retail sales act unconstitutional on the grounds that its incidence is discriminatory and arbitrary and that it operates to prefer Sunday-observing religions. Commonwealth [366 U.S. 420, 511]   v. Cavalerro, 142 Legal Intelligencer 519 (Phila., Ap. 22, 1960) (Pa. Q. S. 1960). Another Pennsylvania court of first impression shortly thereafter reached the same conclusions. Bargain City U.S. A., Inc., v. Dilworth, 142 Legal Intelligencer 813 (Phila., June 22, 1960) (Pa. C. P. 1960). These appear to be the only two standing state-court decisions striking down Sunday laws, as, in part, violative of religious freedom, in a century and a half of litigation.

In District of Columbia v. Robinson, 30 App. D.C. 283 (1908), the Court of Appeals, while recognizing the validity as civil regulations of modern Sunday closing statutes, held the 1723 Maryland Sunday law obsolete and inapplicable in the District of Columbia, largely on the ground that its purpose was religious. Compare O'Hanlon v. Myers, 10 Rich. L. 128 (S. C. 1856). In Brunswick-Balke-Collander Co. v. Evans, 228 F. 991 (D.C. D. Ore. 1916), app. dism'd, 248 U.S. 587 , a Federal District Court sustained Oregon's general closing law against contentions that it violated religious freedom. Cf. Swann v. Swann, 21 F. 299 (C. C. E. D. Ark. 1884); In re King, 46 F. 905 (C. C. W. D. Tenn. 1891).

[ Footnote 100 ] Appeals in cases challenging Sunday laws as violative of the Due Process Clause were also dismissed for want of a substantial federal question in Gundaker Central Motors, Inc., v. Gassert, 354 U.S. 933 , and Grochowiak v. Pennsylvania, 358 U.S. 47 .

[ Footnote 101 ] This does not, of course, imply an opinion of the legitimacy of all the Sunday provisions of all the States, or of every application of the statutes now before this Court. It is true that the Massachusetts [366 U.S. 420, 512]   courts have at times expressed an intention to apply the Massachusetts Lord's day statute in accordance with the temper in which its historical antecedents were enacted. Compare the language of Davis v. City of Somerville, 128 Mass. 594 (1880); Commonwealth v. Dextra, 143 Mass. 28, 8 N. E. 756 (1886); Commonwealth v. White, 190 Mass. 578, 77 N. E. 636 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 138 N. E. 835 (1923), with the Virginia cases, Francisco v. Commonwealth, 180 Va. 371, 23 S. E. 2d 234 (1942), and Rich v. Commonwealth, 198 Va. 445, 94 S. E. 2d 549 (1956). See Commonwealth v. Sampson, 97 Mass. 407 (1867). But see Stone v. Graves, 145 Mass. 353, 13 N. E. 906 (1887). It will be time enough to pass upon the constitutionality of such applications as do not reasonably come within the rationale of the present decision, and of Commonwealth v. Has, 122 Mass. 40, 42 (1877), if and when those cases arise. See Brattle Films, Inc., v. Commissioner of Public Safety, 333 Mass. 58, 127 N. E. 2d 891 (1955).

[ Footnote 102 ] Wisconsin, which does not have a general ban on Sunday labor, but does have a statute prohibiting automobile trading on that day, also makes an exception in favor of those who conscientiously observe the Jewish Sabbath. West's Wis. Stat. Ann., 1961 Supp., 218.01 (3) (a) 21. Other jurisdictions having statutes which cover only one or a few enumerated activities provide no Sabbatarian exception. Fla. Laws 1959, Special Acts, c. 59-1650, a local-option shop-closing statute applicable to Orange County, does contain such an exception, and in Michigan there are similar excepting clauses attached to barbering and auto-trading bans as well as to the general Sunday laws. Mich. Stat. Ann., 1957 Rev. Vol., 18.122, 9.2702.

[ Footnote 103 ] In Kansas, Massachusetts, Missouri, New Jersey, New York, North Dakota, Rhode Island, South Dakota, Texas, Washington, and probably in Connecticut and Maine, the exception does not cover the sale of goods. Kan. Gen. Stat. Ann., 1949, 21-953, State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Mass. Gen. Laws Ann., 1958, c. 136, 6, Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Starr, 144 Mass. 359, 11 N. E. 533 (1887); Commonwealth v. Kirshen, 194 Mass. 151, 80 N. E. 2 (1907); Vernon's Mo. Stat. Ann., 1953, 563.700; N. J. Stat. Ann., 1953, 2A:171-4; McKinney's N. Y. Laws, Pen. Law 2144, People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907 ; cf. People v. Adler, 174 App. Div. 301, 160 N. Y. S. 539 (1916) (manufacturing activities); N. D. Century Code, 1960, 12-21-17; R. I. Gen. Laws, 1956, 11-40-4 (shops, mechanical work in compact places, etc.); S. D. Code, 1939, 13.1710; Vernon's Tex. Stat., 1952, Pen. Code, Art. 284; Wash. Rev. Code, 1959, 9.76.020, State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949); Conn. Gen. Stat. Rev., 1958, 53-303; Me. Rev. Stat., 1954, c. 134, 44. Cf. State v. Weiss, 97 Minn. 125, 105 N. W. 1127 (1906). The exemption in Indiana, Kentucky, Michigan, Nebraska, Ohio, Oklahoma, Virginia and West Virginia does extend to selling, but in the last two named States an exempted person may not employ other persons not of his belief on Sunday. Burns' Ind. Stat. Ann., 1956 Replacement Vol., 10-4301; Ky. Rev. Stat., 1960, 436.160, Cohen v. Webb, 175 Ky. 1, 192 S. W. 828 (1917); Mich. Stat. Ann., 1957 Rev. Vol., 18.855, 18.856 (1), Builders Assn. v. City of Detroit, 295 Mich. 272, 294 N. W. 677 (1940), semble; Neb. Rev. Stat., 1956 Reissued Vol., 28-940; Page's Ohio Rev. Code Ann., 1954, 3773.24; Okla. Stat. Ann., 1958, Tit. 21, 909, Krieger v. State, 12 Okla. Cr. 566, 160 P. 36 (1916); Va. Code, 1960 Replacement Vol., 18.1-359; W. Va. Code Ann., 1955, c. 61, Art. 8, 18 6073.. The meaning of the provision in Illinois, Ill. Rev. Stat., 1959, c. 38, 549, is not clear.

[ Footnote 104 ] See 101 H. L. Deb. 430 (5th ser. 1935-1936); 311 H. C. Deb. 492 (5th ser. 1935-1936). On this ground some state courts have even held Sabbatarian exceptions invalid as discriminatory. City of Shreveport v. Levy, 26 La. Ann. 671 (1874); Kislingbury v. Treasurer of Plainfield, 10 N. J. Misc. 798, 160 A. 654 (C. P. 1932). See State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949), reserving the question. However, in Johns v. State, 78 Ind. 332 (1881), the exemption was sustained.

[ Footnote 105 ] See Va. Code, 1960 Replacement Vol., 18.1-359; W. Va. Code Ann., 1955, c. 61, Art. 8, 18 6073.; Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, 91.

[ Footnote 106 ] Both Pennsylvania and Massachusetts have fair employment practices acts prohibiting religious discrimination in hiring. Purdon's Pa. Stat. Ann., 1960 Supp., Tit. 43, 951 to 963; Mass. Gen. Laws Ann., 1958, c. 151B, 1 to 10.

[ Footnote 107 ] Connecticut, Indiana, Maine, Massachusetts, Michigan, Nebraska, Ohio, Texas, Virginia, West Virginia. Wisconsin's statute is similar.

[ Footnote 108 ] New York, North Dakota, Oklahoma, South Dakota, Washington.

[ Footnote 109 ] Kansas, Kentucky, Missouri.

[ Footnote 110 ] Rhode Island.

[ Footnote 111 ] This New Jersey excepting statute appears to be currently inoperative. The State's general labor ban has recently been held impliedly repealed by the enactment of a Sunday retail sales prohibition, Two Guys from Harrison, Inc., v. Furman, 32 N. J. 199, 160 A. 2d 265 (1960), and the excepting provision, by its terms, does not extend to Sunday selling by Sabbatarians.

[ Footnote 112 ] And see In re Berman, 344 Mich. 598, 75 N. W. 2d 8 (1956), determining the posture under a conscientious-Sabbatarian exception of a Sabbatarian owner of three stores who operated one himself, closing on Saturdays and opening on Sundays, and the other two through agents, opening Saturdays and closing Sundays.

[ Footnote 113 ] 14 Geo. VI, c. 28.

[ Footnote 114 ] 26 Geo. V & 1 Edw. VIII, c. 53.

[ Footnote 115 ] Principally the Jewish exemption in the Hairdressers' and Barbers' Shops (Sunday Closing) Act, 1930, 20 & 21 Geo. V, c. 35, 3. See 101 H. L. Deb. 439, 442 (5th ser. 1935-1936); 311 H. C. Deb. 502 (5th ser. 1935-1936). The 1930 act was repealed by the Shops Act, 1950, 14 Geo. VI, c. 28, Eighth Schedule, although 67 of the latter act continues similar provisions for Scotland. The problem of special Sunday regulation for the Jewish population had involved Parliament at least since the turn of the century. Sections 47, 48 of the Factory and Workshop Act, 1901, 1 Edw. VII, c. 22, permitted Jewish employers certain exemptions from that act's prohibition of Sunday employment of women and children. The terms of the exemption are altered by the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, 91. See also Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill [H. L.] (1905), 71-83, 142-147, 153-157.

[ Footnote 116 ] Among these was a provision permitting any shopkeeper in London to elect to close on Saturdays instead of Sundays. See 311 H. C. Deb. 447-461 (5th ser. 1935-1936). The Jewish exemption provisions of 7 were the most strenuously debated provisions of the Shops (Sunday Trading Restriction) Act. See 308 H. C. Deb. 2188-2192, 2202-2203, 2217 (5th ser. 1935-1936); 101 H. L. Deb. 263, 270, 427-434 (5th ser. 1935-1936); 311 H. C. Deb. 447-461, 478-507 (5th ser. 1935-1936). The recognized inadequacy of the exemption was in part responsible for the act's special provisions ( 8) for the London area, where the bulk of the English Jewish trading population does business. Id., at 2087, 2090-2091, 2103-2104.

[ Footnote 117 ] See the statutory form prescribed by the Shops Regulations, 1937, S. R. & O., 1937, No. 271, Schedules IV (a) and IV (b).

[ Footnote 118 ] The constitution of the tribunals for Jews and for Seventh Day Adventists (see note 119, infra) and the procedures of the tribunals are prescribed by the Shops Regulations, 1937, S. R. & O., 1937, No. 271, Reg. 4, and the Shops (Procedure for Jewish Tribunals) Regulations, 1937, S. R. & O., 1937, No. 1038.

[ Footnote 119 ] Other provisions indicate the intricate problems of administration which the exemption raises. Section 53 (3) provides that in the case of shops occupied by a partnership or company the application of the exemption is determined by the religion of the majority of the partners or directors. Section (5) prohibits the occupier of a shop registered for the exemption from keeping open any other shop on Saturday, and prohibits any person who has made a statutory declaration of conscientious objection for purposes of registration from working in, or employing any other person in, or being concerned in the control of a firm which employs any other person in, a shop open on [366 U.S. 420, 520]   Saturday. Compare In re Berman, note 112, supra. Subsection (9) permits cancellation of the registration of any shop at the application of the occupier, but provides that registration shall not be cancelled within twelve months of the date upon which application for registration was made; and subsection (10) precludes the same occupier's again registering the shop for exemption. Section 53 (12) makes the exception provisions applicable as well to members of any religious body regularly observing the Jewish Sabbath as to Jews, and provides that for such persons the function served in the case of Jews by the London Committee of Deputies of the British Jews shall be served by "such body as appears to the Secretary of State to represent such persons."

[ Footnote 120 ] Frolickstein v. Mayor of Mobile, 40 Ala. 725 (1867); Scales v. State, 47 Ark. 476 (1886); State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Commonwealth v. Has. 122 Mass. 40 (1877); Commonwealth v. Chernock, 336 Mass. 384, 145 N. E. 2d 920 (1957); State v. Weiss, 97 Minn. 125, 105 N. W. 1127 (1906); Komen v. City of St. Louis, 316 Mo. 9, 289 S. W. 838 (1926) (subsequently overruled on another point); State v. Fass, 62 N. J. Super. 265, 162 A. 2d 608 (County Ct. 1960); People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907 ; Silverberg Bros. v. Douglass, 62 Misc. 340, 114 N. Y. S. 824 (Sup. Ct. 1909); Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); City Council v. Benjamin, 2 Strob. L. 508 (S. C. 1848); Xepapas v. Richardson, 149 S. C. 52, 146 S. E. 686 (1929), semble; State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ of error dism'd, 210 U.S. 438 (prohibiting barbering). And see State ex rel. Walker v. Judge, 39 La. Ann. 132, 141, 1 So. 437, 444 (1887); cf. Ex parte Sundstrom, 25 Tex. App. 133 (1888).

[ Footnote 121 ] Consider Mr. Loftus' comments on the proposed Shops (Sunday Trading Restriction) Bill before the House of Commons in 1936: "During the last 20 years there has been a very great change in the habits of our people - a change for the better. Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer, and that is good for their health; it is good for the mind as well as the body that they should do so. Going into the country . . . they have been accustomed to certain facilities in the way of obtaining refreshment, fresh fruit, flowers and vegetables to bring home, and it would be regretted, particularly by the working classes, if there was any interference by legislation that would stop those facilities or check the tendency of our people to go into the country and to take advantage of the amenities of the countryside. . . .

". . . The first principle is to frame such exemptions as will not unduly interfere with the ordinary health and habits of our people. . . ." 308 H. C. Deb. 2159 (5th ser. 1935-1936).

[ Footnote 122 ] Id., at 2200-2201.

[ Footnote 123 ] The statute 29 Charles II, c. 7, punished worldly labor of one's ordinary calling by a forfeiture of five shillings, punished traveling by drovers or butchers by a forfeiture of twenty shillings, and punished the exhibition of merchandise for sale by forfeiture of the goods. Early American colonial legislation similarly provided greater fines for engaging in some than in other Sunday activity. See, e. g., Delaware, 1740; Massachusetts, 1692; New Hampshire, 1700; New Jersey, 1798.

[ Footnote 124 ] The statute 29 Charles II, c. 7, itself contained several exceptions, and subsequent statutes added others. See notes 15, 18, supra. The original Sunday edict of Constantine in 321 A. D. had exempted farm labor.

[ Footnote 125 ] The statute 27 Henry VI, c. 5, had excepted "necessary victual" from its prohibition of sales at fairs and markets; 5 & 6 Edw. VI, c. 3, had contained a broad exception for labor at harvest or at any other time in the year when necessity required.

[ Footnote 126 ] See, e. g., Jefferson's bill quoted in text at note 68, supra. Other laws made specific exceptions as well: the Pennsylvania statute of 1705, for example, exempted not only works of necessity and charity but the dressing of victuals in cookshops, watermen landing passengers, butchers slaughtering and selling meat or fishermen selling fish in the morning in summer, and the sale of milk before 9 a. m. and after 5 p. m.

[ Footnote 127 ] Where statutes ban the keeping open of places of business as well as laboring, the exception is frequently worded to apply only to the latter. See Commonwealth v. Dextra, 143 Mass. 28 (1886).

[ Footnote 128 ] See Williams v. State, 167 Ga. 160, 144 S. E. 745 (1928) (sale of gasoline is necessity); Jacobs v. Clark, 112 Vt. 484, 28 A. 2d 369 (1942) (same is not necessity); Commonwealth v. Louisville & Nashville R. Co., 80 Ky. 291 (1882) (operating railroad is necessity); cf. Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209 (1881); Sparhawk v. Union Passenger R. Co., 54 Pa. 401 (1867) (same is not necessity); State v. Needham, 134 Kan. 155, 4 P.2d 464 (1931) (distribution of newspapers is necessity); Commonwealth v. Matthews, 152 Pa. 166, 25 A. 548 (1893) (same is not necessity); Augusta & S. R. Co. v. Renz, 55 Ga. 126 (1875) (operating streetcar is necessity); Johnston v. Commonwealth, 22 Pa. 102 (1853) (operating bus is not necessity); Turner v. State, 67 Ind. 595 (1879) (cutting ripe wheat is necessity); State v. Goff, 20 Ark. 289 (1859) (same is not necessity); Wilkinson v. State, 59 Ind. 416 (1877) (hauling ripe watermelons is necessity); Commonwealth v. White, 190 Mass. 578, 77 N. E. 636 (1906) (picking ripe cranberries is not necessity); Rich v. Commonwealth, 198 Va. 445, 94 S. E. 2d 549 (1956) (where evidence of widespread retail sale of groceries is not rebutted, jury cannot find that sale of groceries is not necessity); State v. James, 81 S. C. 197, 62 S. E. 214 (1908) (sale of ice and meat is not necessity); [366 U.S. 420, 528]   State v. Corologos, 101 Vt. 300, 143 A. 284 (1928) (sale of confectionery is not necessity as matter of law, although jury could so find); cf. State ex rel. Smith v. Wertz, 91 W. Va. 622, 114 S. E. 242 (1922); Thompson v. City of Atlanta, 178 Ga. 281, 172 S. E. 915 (1934), and Rosenbaum v. State, 131 Ark. 251, 199 S. W. 388 (1917) (operation of motion picture theater is not necessity); Williams v. Commonwealth, 179 Va. 741, 750, 20 S. E. 2d 493, 496 (1942) (concurring opinion) (operation of motion picture theater is necessity); McGatrick v. Wason, 4 Ohio St. 566 (1855) (loading ship with navigation-closing weather impending is necessity); Commonwealth v. Sampson, 97 Mass. 407 (1867) (gathering seaweed which tide threatens to float away is not necessity); Hennersdorf v. State, 25 Tex. App. 597, 8 S. W. 926 (1888) (manufacturing ice is necessity); State v. McBee, 52 W. Va. 257, 43 S. E. 121 (1902) (pumping oil is not necessity as matter of law, although jury could so find); State v. Ohmer, 34 Mo. App. 115 (1889) (retail sale of tobacco is not necessity); Francisco v. Commonwealth, 180 Va. 371, 23 S. E. 2d 234 (1942) (jury may find retail sale of beer necessity).

[ Footnote 129 ] In Petit v. Minnesota, 177 U.S. 164 , this Court sustained against a claim of arbitrary classification a statute which in express terms provided that its exception for works of necessity should not include barbering. In other jurisdictions the same result was reached by judicial interpretation of the "necessity" clause. State v. Linsig, 178 Iowa 484, 159 N. W. 995 (1916); Ex parte Kennedy, 42 Tex. Cr. R. 148, 58 S. W. 129 (1900); State v. Sopher, 25 Utah 318, 71 P. 482 (1903). Cf. Commonwealth v. Dextra, 143 Mass. 28, 8 N. E. 756 (1886); Stark v. Backus, 140 Wis. 557, 123 N. W. 98 (1909). Statutes prohibiting Sunday barbering were enacted in a number of States. These were voided as discriminatory in Ex parte Jentzsch, 112 Cal. 468, 44 P. 803 (1896); Eden v. People, 161 Ill. 296, 43 N. E. 1108 (1896); Armstrong v. State, 170 Ind. 188, 84 N. E. 3 (1908); State v. Granneman, 132 Mo. 326, 33 S. W. 784 (1896); cf. Ragio v. State, 86 Tenn. 272, 6 S. W. 401 (1888), but have been generally sustained. McClelland v. City of Denver, 36 Colo. 486, 86 P. 126 (1906); State v. Murray, 104 Neb. 51, 175 N. W. 666 [366 U.S. 420, 529]   (1919); People v. Bellet, 99 Mich. 151, 57 N. W. 1094 (1894); People v. Havnor, 149 N. Y. 195, 43 N. E. 541 (1896), writ of error dism'd, 170 U.S. 408 ; Ex parte Johnson, 77 Okla. Cr. 360, 141 P.2d 599 (1943); Ex parte Northrup, 41 Ore. 489, 69 P. 445 (1902); Breyer v. State, 102 Tenn. 103, 50 S. W. 769 (1899); State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), overruling City of Tacoma v. Krech, 15 Wash. 296, 46 P. 255 (1896).

[ Footnote 130 ] One may trace in these exceptions the evolving habits of life of the people. Compare State v. Hogreiver, 152 Ind. 652, 53 N. E. 921 (1899), sustaining a statute specifically prohibiting Sunday baseball, with Carr v. State, 175 Ind. 241, 93 N. E. 1071 (1911), sustaining a statute excepting baseball from the general Sunday prohibition.

[ Footnote 131 ] The Shops Act, 1950, 14 Geo. VI, c. 28, excepts from the general Sunday ban the keeping open of a shop to sell liquor, meals or refreshments (whether or not for consumption on the premises, but excluding fried fish and chips sold at a fish and chip shop), newly cooked provisions and cooked tripe, table waters, chocolates, sweets, sugar confectionery and ice cream, flowers, fruit and vegetables (other than tinned), milk and cream (other than tinned), medicines and medical and surgical appliances (by certain registered shops), aircraft, motor or cycle supplies or accessories, tobacco and smokers' requisites, newspapers, periodicals and magazines, books and stationery at rail and bus terminals and aerodromes, guide books, photographs, reproductions, photographic films and plates and souvenirs at public or specially approved galleries, museums, etc., passport photos, requisites for games or sports sold on the premises where the sport is played, fodder for horses, mules, etc. Post office and funeral business is permitted. ( 47 & Fifth Schedule.) Local authority may permit the opening of shops before 10 a. m. for the sale of bread and flour, confectionery, fish, groceries and grocer's products. ( 48 & Sixth Schedule.) Local authority may prohibit sales of meals and refreshments for consumption off the premises (exempted by the Fifth Schedule) in the case of classes of shops in which sales for on-the-premises consumption do not constitute a substantial part of the business carried on. ( 49.) Where the area [366 U.S. 420, 530]   of a local authority is a district frequented as a holiday resort during certain seasons of the year, the local authority may provide by order that shops of such classes as it designates may open on specified Sundays (not to exceed eighteen per year) for the sale of bathing and fishing articles, photographic requisites, toys, souvenirs and fancy goods, books, stationery, photographs, reproductions and postcards, and food. ( 51 & Seventh Schedule.) Special provisions applicable to the London area permit local councils to authorize the opening before 2 p. m. of shops where street markets or (in some regions) shops were customarily opened on Sunday prior to the date of the original act, 1936, where, in the latter case, the councils find that "having regard to the character and habits of the population in the district," Sunday closing would cause undue hardship; but if such an exempting order is made, it must fix some weekday closing day for these shops, which may differ for different classes of shops. ( 54.) In the case of these local exempting orders, provision is made for a plebiscite among the shopkeepers affected. ( 52, 54 (1), par. 2.) The act further excepts the sale and delivery of stores or necessaries to arriving or departing ships and aircraft and of goods to private clubs for club purposes, the cooking before 1:30 p.m. of food brought by customers to be cooked for consumption that day, and attendance as a barber upon invalids or upon residents of hotels or clubs therein. ( 56.) This summary digest can scarcely suggest the complexity of the text.

[ Footnote 132 ] 311 H. C. Deb. 465 (5th ser. 1935-1936).

[ Footnote 133 ] Elliott v. State, 29 Ariz. 389, 242 P. 340 (1926) (banning enumerated businesses; court distinguishes general closing statute with [366 U.S. 420, 531]   exceptions); Bocci & Sons Co. v. Town of Lawndale, 208 Cal. 720, 284 P. 654 (1930) (exceptions for classes of businesses); Justesen's Food Stores, Inc., v. City of Tulare, 12 Cal. 2d 324, 84 P.2d 140 (1938) (closing food stores; exceptions for classes of businesses); Deese v. City of Lodi, 21 Cal. App. 2d 631, 69 P.2d 1005 (1937) (exceptions for classes of businesses); Allen v. City of Colorado Springs, 101 Colo. 498, 75 P.2d 141 (1937) (exceptions for classes of businesses and commodities); Henderson v. Antonacci, 62 So.2d 5 (Fla. 1952) (exceptions for classes of businesses and commodities); Kelly v. Blackburn, 95 So.2d 260 (Fla. 1957) (exceptions for newspapers and cinema); City of Mt. Vernon v. Julian, 369 Ill. 447, 17 N. E. 2d 52 (1938) (exceptions for classes of businesses); Auto-Rite Supply Co. v. Mayor of Woodbridge, 41 N. J. Super. 303, 124 A. 2d 612 (1956), aff'd on other grounds, 25 N. J. 188, 135 A. 2d 515 (1957) (banning sale of enumerated classes of commodities); Chan Sing v. Astoria, 79 Ore. 411, 155 P. 378 (1916) (closing shops selling enumerated classes of commodities); Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939 (1943) (exceptions for classes of businesses, some restricted to sale of specified commodities); Gronlund v. Salt Lake City, 113 Utah 284, 194 P.2d 464 (1948) (sales ban with exceptions for classes of commodities); court distinguishes statutory scheme banning all labor and sales with exceptions). Cf. State v. Trahan, 214 La. 100, 36 So.2d 652 (1948), and Arrigo v. City of Lincoln, 154 Neb. 537, 48 N. W. 2d 643 (1951) (exceptions for classes of businesses), holding unconstitutional Sunday statutes in particular applications deemed discriminatory.

[ Footnote 134 ] City of Denver v. Bach, 26 Colo. 530, 58 P. 1089 (1899) (closing classes of businesses); City of Springfield v. Smith, 322 Mo. 1129, 19 S. W. 2d 1 (1929) (banning enumerated entertainments); Ex parte Ferguson, 62 Okla. Cr. 145, 70 P.2d 1094 (1937) (banning sale of enumerated commodities) (alternative holding); Ex parte Hodges, 65 Okla. Cr. 69, 83 P.2d 201 (1938) (exceptions for classes of businesses) (alternative holding). Cf. McKaig v. Kansas City, 363 Mo. 1033, 256 S. W. 2d 815 (1953) (automobile sales), disapproving City of St. Louis v. DeLassus, 205 Mo. 578, 104 S. W. 12 (1907), and Komen v. City of St. Louis, 316 Mo. 9, 289 S. W. 838 (1926).

[ Footnote 135 ] Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83 (1953) (banning merchandising with exceptions for classes of businesses); Taylor v. [366 U.S. 420, 533]   City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679 (1956) (ordinance applied only to single class of business); Hickinbotham v. Williams, 227 Ark. 126, 296 S. W. 2d 897 (1956) (banning enumerated businesses); Ex parte Koser, 60 Cal. 177 (1882) (exceptions for classes of businesses); In re Sumida, 177 Cal. 388, 170 P. 823 (1918) (exceptions for classes of businesses); State v. Hurliman, 143 Conn. 502, 123 A. 2d 767 (1956) (exceptions for classes of services, activities and commodities, the latter to be sold by persons who sell them on weekdays); State v. Shuster, 145 Conn. 554, 145 A. 2d 196 (1958) (same); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894) (excepting sales of classes of commodities); State v. Dolan, 13 Idaho 693, 92 P. 995 (1907) (exceptions for classes of services and commodities); State v. Cranston, 59 Idaho 561, 85 P.2d 682 (1938) (exceptions for classes of businesses, services and commodities); Humphrey Chevrolet, Inc., v. City of Evanston, 7 Ill. 2d 402, 131 N. E. 2d 70 (1955) (exceptions for classes of commodities); Ness v. Supervisors of Elections, 162 Md. 529, 160 A. 8 (1932) (unspecified); People v. DeRose, 230 Mich. 180, 203 N. W. 95 (1925) (banning classes of businesses and sales of classes of commodities); People v. Krotkiewicz, 286 Mich. 644, 282 N. W. 852 (1938) (banning sales of classes of commodities); People's Appliance, Inc., v. City of Flint, 358 Mich. 34, 99 N. W. 2d 522 (1959) (banning businesses selling classes of commodities); State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N. W. 325 (1904) (exceptions for classes of commodities); Liberman v. State, 26 Neb. 464, 42 N. W. 419 (1889) (exceptions for classes of businesses and commodities); In re Caldwell, 82 Neb. 544, 118 N. W. 133 (1908) ("common" labor banned); State v. Somberg, 113 Neb. 761, 204 N. W. 788 (1925) (banning classes of businesses and sales of classes of commodities); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N. J. Super. 187, 106 A. 2d 9 (1954) (banning businesses selling classes of commodities); Masters-Jersey, Inc., v. Mayor of Paramus, 32 N. J. 296, 160 A. 2d 841 (1960) (exceptions for classes of commodities); Richman v. Board of Comm'rs, 122 N. J. L. 180, 4 A. 2d 501 (1939) (banning businesses selling a class of commodities, semble); People v. Friedman, 302 N. Y. 75, 96 N. E. 2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907 (exceptions for classes of businesses, commodities, other activities); State v. Medlin, 170 N.C. 682, 86 [366 U.S. 420, 534]   S. E. 597 (1915) (exception for a class of business, restricted to sale of specified classes of commodities); State v. Trantham, 230 N.C. 641, 55 S. E. 2d 198 (1949) (exceptions for classes of commodities to be sold by classes of businesses); State v. McGee, 237 N.C. 633, 75 S. E. 2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802 (exceptions for classes of businesses, commodities, other activities); State v. Towery, 239 N.C. 274, 79 S. E. 2d 513 (1954), app. dism'd for want of a substantial federal question, 347 U.S. 925 (exceptions for classes of businesses, some restricted to sales of specified classes of commodities); State v. Diamond, 56 N. D. 854, 219 N. W. 831 (1928) (exceptions for classes of commodities); State v. Haase, 97 Ohio App. 377, 116 N. E. 2d 224 (1953) (exceptions for classes of recreational activities); State v. Kidd, 167 Ohio St. 521, 150 N. E. 2d 413 (1958), app. dism'd for want of a substantial federal question, 358 U.S. 132 (exceptions for classes of recreational activities); Commonwealth v. Bauder, 188 Pa. Super. 424, 145 A. 2d 915 (1958) (exceptions for classes of recreational activities); Bothwell v. York City, 291 Pa. 363, 140 A. 130 (1927) (banning classes of recreational activities); Mayor of Nashville v. Linck, 80 Tenn. 499 (1883) (exceptions for sales of classes of commodities by classes of businesses); Kirk v. Olgiati, 203 Tenn. 1, 308 S. W. 2d 471 (1957) (banning classes of businesses); Ex parte Sundstrom, 25 Tex. App. 133, 8 S. W. 207 (1888) (exceptions for classes of commodities); Searcy v. State, 40 Tex. Cr. R. 460, 51 S. W. 1119 (1899) (exceptions for classes of commodities); Sayeg v. State, 114 Tex. Cr. R. 153, 25 S. W. 2d 865 (1930) (exceptions for classes of commodities); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927) (exceptions for classes of commodities); State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949) (exceptions for classes of commodities). See also Rosenbaum v. City & County of Denver, 102 Colo. 530, 81 P.2d 760 (1938) (banning automobile trading); Mosko v. Dunbar, 135 Colo. 172, 309 P.2d 581 (1957) (banning automobile trading); Gillooley v. Vaughan, 92 Fla. 943, 110 So. 653 (1926) (banning classes of amusements); Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N. W. 332 (1931) (banning automobile trading); ABC Liquidators, Inc., v. Kansas City, 322 S. W. 2d 876 (Mo. 1959) (banning auctions); State v. Loomis, 75 Mont. 88, 242 P. 344 (1925) [366 U.S. 420, 535]   (banning, e. g., classes of dance halls); Gundaker Central Motors, Inc., v. Gassert, 23 N. J. 71, 127 A. 2d 566 (1956), app. dism'd for want of a substantial federal question, 354 U.S. 933 (banning automobile trading); Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533 (1921) (banning cinema and theaters); Consolidated Enterprises, Inc., v. State, 150 Tenn. 148, 263 S. W. 74 (1924) (banning cinema and theaters). Statutory provisions whose effect was to punish some Sunday activities more severely than others have been sustained. State v. Hogreiver, 152 Ind. 652, 53 N. E. 921 (1899); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N. E. 2d 808 (1958); State v. Murray, 104 Neb. 51, 175 N. W. 666 (1919); Commonwealth v. Grochowiak, 184 Pa. Super. 522, 136 A. 2d 145 (1957), app. dism'd for want of a substantial federal question, 358 U.S. 47 ; Breyer v. State, 102 Tenn. 103, 50 S. W. 769 (1899). Cf. Sherman v. Mayor of Paterson, 82 N. J. L. 345, 82 A. 889 (1912). For cases sustaining state statutes applicable in some, but not all, localities, see People v. Havnor, 149 N. Y. 195, 43 N. E. 541 (1896); Bohl v. State, 3 Tex. App. 683 (1878); and compare Sarner v. Township of Union, 55 N. J. Super. 523, 151 A. 2d 208 (1959), with Two Guys from Harrison, Inc., v. Furman, 32 N. J. 199, 160 A. 2d 265 (1960).

[ Footnote 136 ] See note 131, supra; Appendix II to this opinion, post. p. 551; Weekly Rest in Commerce and Offices, Report VII (1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 27-52; Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 82-127.

[ Footnote 137 ] It is unclear whether the exception here assailed permits the sale of merchandise essential to, or customarily sold at, bathing beaches, bathhouses, etc., only at those enumerated places or by all retailers within the county. Since the Maryland Court of Appeals left this question of construction open below, I assume the interpretation most favorable to appellants' claim.

[ Footnote 138 ] Many of the jurisdictions which have Sunday laws provide some form of local option procedure for the creation of exceptions. This is only to recognize the obvious fact that conditions of limited geographical range may be determinative in striking the balance of forbidden and permissible Sunday activity which best accords with popular habits and desires. In Maryland the State Legislature itself does the job of adapting the general state-wide law to local circumstances. This difference in method can scarcely entail different federal constitutional consequences.

[ Footnote 139 ] See Eldorado Ice Cream Co. v. Clark, 1938. 1 K. B. 715, holding the sale of ice cream from a box tricycle without the prohibition of the Shops (Sunday Trading Restriction) Act.

[ Footnote 140 ] Consider the alternative suggested by the ordinance sustained in In re Sumida, 177 Cal. 388, 170 P. 823 (1918), requiring that where an establishment housing both permitted and prohibited businesses remains open on Sunday for transaction of the former, a five-foot-high permanent partition or screen must be erected to separate the two business areas.

[ Footnote 141 ] See Friedeborn v. Commonwealth, 113 Pa. 242, 6 A. 160 (1886).

[ Footnote 142 ] See 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139.

[ Footnote 143 ] See id., at 1142-1143, 2568. [366 U.S. 420, 560]  

MR. JUSTICE DOUGLAS, dissenting. *  

The question is not whether one day out of seven can be imposed by a State as a day of rest. The question is not whether Sunday can by force of custom and habit be retained as a day of rest. The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority.

If the "free exercise" of religion were subject to reasonable regulations, as it is under some constitutions, or if all laws "respecting the establishment of religion" were not proscribed, I could understand how rational men, representing a predominantly Christian civilization, might think these Sunday laws did not unreasonably interfere with anyone's free exercise of religion and took no step toward a burdensome establishment of any religion.

But that is not the premise from which we start, as there is agreement that the fact that a State, and not the Federal Government, has promulgated these Sunday laws does not change the scope of the power asserted. For the classic view is that the First Amendment should be applied to the States with the same firmness as it is enforced against the Federal Government. See Lovell v. Griffin, 303 U.S. 444, 450 ; Minersville District v. Gobitis, 310 U.S. 586, 593 ; Murdock v. Pennsylvania, 319 U.S. 105, 108 ; Board of Education v. Barnette, 319 U.S. 624, 639 ; Staub v. City of Baxley, 355 U.S. 313, 321 ; Talley v. [366 U.S. 420, 562]   California, 362 U.S. 60 . The most explicit statement perhaps was in Board of Education v. Barnette, supra, 639.

"In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for 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."

The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect. [366 U.S. 420, 563]   The Declaration of Independence stated the now familiar theme:

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

The Puritan influence helped shape our constitutional law and our common law as Dean Pound has said: The Puritan "put individual conscience and individual judgment in the first place." The Spirit of the Common Law (1921), p. 42. For these reasons we stated in Zorach v. Clauson, 343 U.S. 306, 313 , "We are a religious people whose institutions presuppose a Supreme Being."

But those who who fashioned the First Amendment decided that if and when God is to be served, His service will not be motivated by coercive measures of government. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - such is the command of the First Amendment made applicable to the State by reason of the Due Process Clause of the Fourteenth. This means, as I understand it, that if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others; second, that no one shall be interfered with by government for practicing the religion of his choice; third, that the State may not require anyone to practice a religion or even any religion; and fourth, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters (Board of [366 U.S. 420, 564]   Education v. Barnette, supra; McCollum v. Board of Education, 333 U.S. 203 ), not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics.

The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish - whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind government must be neutral. This freedom plainly includes freedom from religion with the right to believe, speak, write, publish and advocate antireligious programs. Board of Education v. Barnette, supra, 641. Certainly the "free exercise" clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment by its "establishment" clause prevents, of course, the selection by government of an "official" church. Yet the ban plainly extends farther than that. We said in Everson v. Board of Education, 330 U.S. 1, 16 , that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.

Could it require a fast from sunrise to sunset throughout the Moslem month of Ramadan? I should think not. [366 U.S. 420, 565]   Yet why then can it make criminal the doing of other acts, as innocent as eating, during the day that Christians revere?

Sunday is a word heavily overlaid with connotations and traditions deriving from the Christian roots of our civilization that color all judgments concerning it. This is what the philosophers call "word magic."

"For most judges, for most lawyers, for most human beings, we are as unconscious of our value patterns as we are of the oxygen that we breathe." Cohen, Legal Conscience (1960), p. 169.

Dr. John Cogley recently summed up 1 the dominance of the three-religion influence in our affairs:

"For the foreseeable future, it seems, the United States is going to be a three-religion nation. At the present time all three are characteristically `American,' [366 U.S. 420, 566]   some think flavorlessly so. For religion in America is almost uniformly `respectable,' bourgeois, and prosperous. In the Protestant world the `church' mentality has triumphed over the more venturesome spirit of the `sect.' In the Catholic world, the mystical is muted in favor of booming organization and efficiently administered good works. And in the Jewish world the prophet is too frequently without honor, while the synagogue emphasis is focused on suburban togetherness. There are exceptions to these rules, of course; each of the religious communities continues to cast up its prophets, its rebels and radicals. But a Jeremiah, one fears, would be positively embarrassing to the present position of the Jews; a Francis of Assisi upsetting the complacency of American Catholics would be rudely dismissed as a fanatic; and a Kierkegaard, speaking with an American accent, would be considerably less welcome than Norman Vincent Peale in most Protestant pulpits."

"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 [366 U.S. 420, 567]   maidservant, nor thy cattle, nor thy stranger that is within thy gates:

"For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it." Exodus 20:8-11.

The Soon Hing, Hennington, and Petit cases all rested on the police power of the State - the right to safeguard the health of the people by requiring the cessation of normal activities one day out of seven. The Court in the Soon Hing case rejected the idea that Sunday laws rested on the power of government "to legislate for the promotion of religious observances." 113 U.S., at 710 . The New York Court of Appeals in the Friedman case followed the reasoning of the earlier cases, 4 302 N. Y. 75, 80, 96 N. E. 2d 184, 186. [366 U.S. 420, 569]  

The Massachusetts Sunday law involved in one of these appeals was once characterized by the Massachusetts court as merely a civil regulation providing for a "fixed period of rest." Commonwealth v. Has, 122 Mass. 40, 42. That decision was, according to the District Court in the Gallagher case, "an ad hoc improvisation" made "because of the realization that the Sunday law would be more vulnerable to constitutional attack under the state Constitution if the religious motivation of the statute were more explicitly avowed." 176 F. Supp. 466, 473. Certainly prior to the Has case, the Massachusetts courts had indicated that the aim of the Sunday law was religious. See Pearce v. Atwood, 13 Mass. 324, 345-346; Bennett v. Brooks, 91 Mass. 118, 121. After the Has case the Massachusetts court construed the Sunday law as a religious measure. In Davis v. Somerville, 128 Mass. 594, 596, 35 Am. Rep. 399, 400, it was said:

"Our Puritan ancestors intended that the day should be not merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and repose, undisturbed by secular cares or amusements. They saw fit to enforce the observance of the day by penal legislation, and the statute regulations which they devised for that purpose have continued in force, without any substantial modification, to the present time."

The Pennsylvania Sunday laws before us in Nos. 36 and 67 have received the same construction. "Rest and quiet, on the Sabbath day, with the right and privilige of public and private worship, undisturbed by any mere wordly employment, are exactly what the statute was passed to protect." Sparhawk v. Union Passenger R. Co., 54 Pa. 401, 423. And see Commonwealth v. Nesbit, 34 Pa. 398, 405, 406-408. A recent pronouncement by the Pennsylvania Supreme Court is found in Commonwealth v. American Baseball Club, 290 Pa. 136, 143, 138 A. 497, 499: "Christianity is part of the common law of Pennsylvania . . . and its people are christian people. Sunday is the holy day among christians."

The Maryland court, in sustaining the challenged law in No. 8, relied on Judefind v. State, 78 Md. 510, 28 A. 405, and Levering v. Park Commissioner, 5 134 Md. 48, 106 A. 176. In the former the court said:

"It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religion - of all sects and denominations that observe that day - as rest from work and ordinary occupation enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a Court, in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, (except works of necessity and charity,) and thereby promotes the [366 U.S. 420, 571]   cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, as it undoubtedly is, there is all the more reason for the enforcement of laws that help to preserve it." 78 Md., at 515-516, 128 A., at 407.

We have then in each of the four cases Sunday laws that find their source in Exodus, that were brought here by the Virginians and by the Puritans, and that are today maintained, construed, and justified because they respect the views of our dominant religious groups and provide a needed day of rest.

The history was accurately summarized a century ago by Chief Justice Terry of the Supreme Court of California in Ex parte Newman, 9 Cal. 502, 509:

"The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication, and in most of the States of our Confederacy, the aid of the law to enforce its observance has been given under the pretence of a civil, municipal, or police regulation."

"Had the act made Monday, instead of Sunday, a day of compulsory rest, the constitutional question would have been the same. The fact that the Christian voluntarily keeps holy the first day of the week, does not authorize the Legislature to make that observance compulsory. The Legislature can not compel the citizen to do that which the Constitution leaves him free to do or omit, at his election. The act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object, when the Legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the act of the Legislature compels us to do that which we wish to do, or not to do. . . .

"Under the Constitution of this State, the Legislature can not pass any act, the legitimate effect of which is forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance, the act is unconstitutional." Id., at 513-515.

It seems to me plain that by these laws the States compel one, under sanction of law, to refrain from work or recreation on Sunday because of the majority's religious views about that day. The State by law makes Sunday a symbol of respect or adherence. Refraining from work or recreation in deference to the majority's religious feelings about Sunday is within every person's choice. By what authority can government compel it?

Cases are put where acts that are immoral by our standards but not by the standards of other religious [366 U.S. 420, 574]   groups are made criminal. That category of cases, until today, has been a very restricted one confined to polygamy (Reynolds v. United States, 98 U.S. 145 ) and other extreme situations. The latest example is Prince v. Massachusetts, 321 U.S. 158 , which upheld a statute making it criminal for a child under twelve to sell papers, periodicals, or merchandise on a street or in any public place. It was sustained in spite of the finding that the child thought it was her religious duty to perform the act. But that was a narrow holding which turned on the effect which street solicitation might have on the child-solicitor:

"The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parent's claim to control of the child or one that religious scruples dictate contrary action." Id., 168-169.

The conduct held constitutionally criminal today embraces the selling of pure, not impure, food; wholesome, [366 U.S. 420, 575]   not noxious, articles. Adults, not minors, are involved. The innocent acts, now constitutionally classified as criminal, emphasize the drastic break we make with tradition.

These laws are sustained because, it is said, the First Amendment is concerned with religious convictions or opinion, not with conduct. But it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority's religious beliefs. Some have religious scruples against eating pork. Those scruples, no matter how bizarre they might seem to some, are within the ambit of the First Amendment. See United States v. Ballard, 322 U.S. 78, 87 . Is it possible that a majority of a state legislature having those religious scruples could make it criminal for the nonbeliever to sell pork? Some have religious scruples against slaughtering cattle. Could a state legislature, dominated by that group, make it criminal to run an abattoir?

The Court balances the need of the people for rest, recreation, late sleeping, family visiting and the like against the command of the First Amendment that no one need bow to the religious beliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme. A legislature of Christians can no more make minorities conform to their weekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of every group must be respected - unless it crosses the line of criminal conduct. But no one can be forced to come to a halt before it, or refrain from doing things that would offend it. That is my reading of the Establishment Clause and the Free Exercise Clause. Any other reading imports, I fear, an element common in other societies but foreign to us. Thus Nigeria in Article 23 of her Constitution, after [366 U.S. 420, 576]   guaranteeing religious freedom, adds, "Nothing in this section shall invalidate any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, or public health." And see Article 25 of the Indian Constitution. That may be a desirable provision. But when the Court adds it to our First Amendment, as it does today, we make a sharp break with the American ideal of religious liberty as enshrined in the First Amendment.

The State can, of course, require one day of rest a week: one day when every shop or factory is closed. Quite a few States make that requirement. 7 Then the "day of rest" becomes purely and simply a health measure. But the Sunday laws operate differently. They force minorities to obey the majority's religious feelings of what is due and proper for a Christian community; they provide a coercive spur to the "weaker brethren," to those who are indifferent to the claims of a Sabbath through apathy or scruple. Can there by any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a Moslem law that forbade them from engaging in secular activities on days that violated Moslem scruples?

There is an "establishment" of religion in the constitutional sense if any practice of any religious group has the sanction of law behind it. There is an interference with the "free exercise" of religion if what in conscience one [366 U.S. 420, 577]   can do or omit doing is required because of the religious scruples of the community. Hence I would declare each of those laws unconstitutional as applied to the complaining parties, whether or not they are members of a sect which observes as its Sabbath a day other than Sunday.

When these laws are applied to Orthodox Jews, as they are in No. 11 and in No. 67, or to Sabbatarians their vice is accentuated. If the Sunday laws are constitutional, kosher markets are on a five-day week. Thus those laws put an economic penalty on those who observe Saturday rather than Sunday as the Sabbath. For the economic pressures on these minorities, created by the fact that our communities are predominantly Sunday-minded, there is no recourse. When, however, the State uses its coercive powers - here the criminal law - to compel minorities to observe a second Sabbath, not their own, the State undertakes to aid and "prefer one religion over another" - contrary to the command of the Constitution. See Everson v. Board of Education, supra, 15.

In large measure the history of the religious clause of the First Amendment was a struggle to be free of economic sanctions for adherence to one's religion. Everson v. Board of Education, supra, 11-14. A small tax was imposed in Virginia for religious education. Jefferson and Madison led the fight against the tax, Madison writing his famous Memorial and Remonstrance against that law. Id., 12. As a result, the tax measure was defeated and instead Virginia's famous "Bill for Religious Liberty," written by Jefferson, was enacted. Id., 12. That Act provided: 8  

"That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise [366 U.S. 420, 578]   suffer on account of his religious opinions or belief . . . ."

"The sanction imposed by the state for observing a day other than Sunday as holy time is certainly more serious economically than the imposition of a license tax for preaching," 9 which we struck down in Murdock v. Pennsylvania, 319 U.S. 105 , and in Follett v. McCormick, 321 U.S. 573 . The special protection which Sunday laws give the dominant religious groups and the penalty they place on minorities whose holy day is Saturday constitute, in my view, state interference with the "free exercise" of religion. 10   [366 U.S. 420, 579]  

"We forget that, though Sunday-worshiping Christians are in the majority in this country among religious people, we do not have the right to force our practice upon the minority. Only a Church which deems itself without error and intolerant of error can justify its intolerance of the minority.

"A Jewish friend of mine runs a small business establishment. Because my friend is a Jew his business is closed each Saturday. He respects my right to worship on Sunday and I respect his right to worship on Saturday. But there is a difference. As a Jew he closes his store voluntarily so that he will be able to worship his God in his fashion. Fine! But, as a Jew living under Christian inspired Sunday closing laws, he is required to close his store on Sunday so that I will be able to worship my God in my fashion.

"Around the corner from my church there is a small Seventh Day Baptist church. I disagree with the Seventh Day Baptists on many points of doctrine. Among the tenets of their faith with which I disagree is the `seventh day worship.' But they are good neighbors and fellow Christians, and while we disagree we respect one another. The good people of my congregation set aside their jobs on the first of the week and gather in God's house for worship. Of course, it is easy for them to set aside their jobs since Sunday closing laws - inspired by the Church - keep them from their work. At the Seventh Day Baptist church the people set aside their jobs on Saturday to worship God. This takes real sacrifice because Saturday is a good day for business. But that is not all - they are required by law to set aside [366 U.S. 420, 581]   their jobs on Sunday while more orthodox Christians worship.

". . . I do not believe that because I have set aside Sunday as a holy day I have the right to force all men to set aside that day also. Why should my faith be favored by the State over any other man's faith?" 12  

[ Footnote * ] [NOTE: This opinion applies also to No. 36, Two Guys From Harrison-Allentown, Inc., v. McGinley, District Attorney, Lehigh County, Pennsylvania, et al., post, p. 582; No. 67, Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., post, p. 599; and No. 11, Gallagher, Chief of Police of Springfield, Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al., post, p. 617.]

[ Footnote 1 ] The Problems of Pluralism, Danforth Lectures, Miami University, Oxford, Ohio (1960). Other writers suggest that America is still subject to a customary and nonlegal "Protestant establishment" which comes to the surface only on certain political issues. Thus, a Rabbi Arthur Hartzberg was able to analyze the "religious issue" of the recent presidential campaign in these terms:

"As we have seen, the First Amendment was the battleground, at the end of the 18th century, of a major transition in American society in which the old Protestant establishment was forced to yield to the newer ethos of Protestant non-conformity. Today in American society, we are witnessing a change perhaps as important - the full [366 U.S. 420, 566]   entry of the post-bellum immigrant groups into the national life. Though the battle once again seems to be raging around the First Amendment, it would appear from the foregoing analysis that the true issue is not the separation of church and state, but the symbolic significance for American life and culture of having a non-Protestant - whether he be a Catholic, a Jew, or an avowed atheist - as President of the United States." Hartzberg, "The Protestant `Establishment,' Catholic Dogma, and the Presidency," Commentary (October 1960), p. 285.

[ Footnote 2 ] Blackstone's Commentaries, Bk. IV, c. 4, entitled "Of Offenses Against God and Religion," says in part:

"IX. Profanation of the Lord's day, vulgarly (but improperly) called Sabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing christianity, and the corruption of morals which usually follows it's profanation, the keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit: it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness: it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker."

[ Footnote 3 ] See also Ullner v. Ohio, 358 U.S. 131 ; Kidd v. Ohio, 358 U.S. 132 ; McGee v. North Carolina, 346 U.S. 802 ; cf. Grochowiak v. Pennsylvania, 358 U.S. 47 ; Gundaker Cent. Motors, Inc., v. Gassert, 354 U.S. 933 ; Towery v. North Carolina, 347 U.S. 925 .

[ Footnote 4 ] As respects the First Amendment the court said:

"It does not set up a church, make attendance upon religious worship compulsory, impose restrictions upon expression of religious belief, work a restriction upon the exercise of religion according to the [366 U.S. 420, 569]   dictates of one's conscience, provide compulsory support, by taxation or otherwise, of religious institutions, nor in any way enforce or prohibit religion." 302 N. Y., at 79, 96 N. E. 2d, at 186.

[ Footnote 5 ] Cf. Bowman v. Secular Society, Ltd. 1917. A. C. 406, 464 (opinion of Lord Sumner).

[ Footnote 6 ] Today we retreat from that jealous regard for religious freedom which struck down a statute because it was "a handy implement for disguised religious persecution." Board of Education v. Barnette, supra, 644 (concurring opinion). It does not do to say, as does the majority, "Sunday is a day apart from all others. The cause is irrelevant; the fact exists." The cause of Sunday's being a day apart is determinative; that cause should not be swept aside by a declaration of parochial experience.

The judgment the Court is called upon to make is a delicate one. But in the light of our society's religious history it cannot be avoided by arguing that a hypothetical lawgiver could find nonreligious reasons for fixing Sunday as a day of rest. The effect of that history is, indeed, still with us. Sabbath is no less Sabbath because it is now less severe in its strictures, or because it has come to be expedient for some nonreligious purposes. The Constitution must guard against "sophisticated as well as simple-minded modes" of violation. Lane v. Wilson, 307 U.S. 268, 275 .

[ Footnote 7 ] Or the State may merely fix a maximum hours' limitation in other terms, either for particular classes of employees, particular classes of employment, or straight across the board. See laws and decisions gathered in 1 & 2 CCH Labor Law Reporter, State Laws, par. 44,500 et seq. On argument, there was much made over the desirability of fixing a single day for rest, either on grounds of administrative convenience or on grounds of the need for leisure. In light of the history and meaning of the shared leisure of Sunday, this aim still has religious overtones. Cf. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 505 .

[ Footnote 8 ] 12 Hening, Stat. Va. (1823), p. 86.

[ Footnote 9 ] Pfeffer, Church, State, and Freedom (1953), p. 235.

[ Footnote 10 ] ". . . assuming that the idle Sunday is an `institution' of Christianity, does a statute which for that reason requires men to be idle on Sunday give a preference to one particular religion? How can it be maintained that it does not, unless a similar institution of every other religion be honored with like recognition? As to the individual aspect of the case, if the law is to assist Christianity by making idleness compulsory on its sacred day, thereby presumably commending it to those who reject it, and strengthening its hold upon its devotees, is there not a `preference' given to a religion, unless the Hebrew and all other faiths have a like recognition extended to their sacred days? And as to the social aspect, assuming that it is an advantage to have other people kept extraordinarily quiet while we pray, and to have [366 U.S. 420, 579]   an especial `peace' established by law on the day we select for public worship, and that we have the right to prevent our neighbor from earning his living at a certain time because the practice of his avocation interferes with our religious exercises, must it not be called a `preference' to do all this for the Christian's benefit, and not to do it for the benefit of the followers of Moses, or Mahomet, or Confucius or Buddha?" Ringgold, Legal Aspects of the First Day of the Week (1891), pp. 68-69.

[ Footnote 11 ] It is argued that the wide acceptance of Sunday laws at the time of the adoption of the First Amendment makes it fair to assume that they were never thought to come within the "establishment" Clause, and that the presence in the country at that time of large numbers of Orthodox Jews makes it clear that those laws were not thought to run afoul of the "free exercise" Clause. Those reasons would be compelling if the First Amendment had, at the time of its adoption, been applicable to the States. But since it was then applicable only to the Federal Government, it had no possible bearing on the Sunday laws of the States. The Fourteenth Amendment, adopted years later, made the First Amendment applicable to the States for the first time. That Amendment has had unsettling effects on many customs and practices - a process consistent with Jefferson's precept "that laws and institutions must go hand in hand with the progress of the human mind." 15 The Writings of Thomas Jefferson (Memorial ed. 1904), p. 41.

Moreover, there is solid evidence to suggest that the Jewish population of our Nation was then minuscule. "Despite the roseate estimates of some Jewish writers on the subject, it is safe to say there were never more than one thousand Jews living among the three million and more inhabitants of the colonies. The Newport community in its heyday totaled at most one hundred and fifty to one hundred and seventy-five Jews. Perhaps New York had as many, or more. Philadelphia, Charleston and Savannah were certainly smaller communities. Even when combining their Jewish populations with the lonely groups in the back county, we still are far from an impressive total." Goodman, American Overture: Jewish Rights in Colonial Times (1947), p. 3.

[ Footnote 12 ] 56 Liberty, January-February 1961, No. 1, pp. 21-22. [366 U.S. 420, 582]