As the Sunday fair-closing controversy approached its peak, a United States Supreme Court justice made a surprising pronouncement. Justice David J. Brewer, who delivered a ruling that a Federal law banning contracts with alien laborers does not affect the right of a church to hire a pastor from a foreign country, also made the statement that "this is a Christian nation." In an effort to fortify this declaration, Brewer displayed a variety of evidence, including "the laws respecting the observance of the Sabbath," coupled with "the general cessation of all secular business . . . on that day."¹ The judges' decision was unanimous.

Justice John M. Harlan spoke for the court four years later, in 1896, branding a Georgia blue law "as an ordinary police regulation established by the state under its general power to protect the health and morals and to promote the welfare of its people" – in apparent contrast to the 1892 "Christian nation" dictum.

Justice Stephen J. Field, Brewer's uncle, had pioneered the new dimension in judicial thought enunciated by Harlan. He described Sunday laws as simple civil regulations designed to benefit the public welfare, and reasoned that they could be sustained as a legitimate exercise of the police power of the state. Still, even Field appeared not to object to his nephew’s candid 1892 recognition of the religious nature of Sunday laws.

[96] Admittedly, blue laws of the late nineteenth century were religious in origin, development, and contemporary operation. But since the rest feature brought "benefit" to the community, the Sunday law could be viewed by some stretch of the imagination as a civil rather than a religious regulation. Thus the state could, by enforcing such a law, claim the promotion of community welfare.

Sunday laws themselves had not changed. Justice Brewer was willing even to cite them as evidence that the United States is a "Christian nation." If there was any change, it was in judicial theory. And the more sophisticated police-power rationale was a tangible shift from the open acknowledgment of religious establishment traditionally used by state courts.

Rarely did any Sunday law face Federal court review in the nineteenth century. It was individual state governments that were burdened with numerous Sunday laws. On the occasions when state blue laws confronted the Supreme Court of the United States, they came usually as a collateral issue. For example:

The ship Tangier had made a valid delivery of cotton by unloading its cargo on a Boston dock-even though it did so on a fast day proclaimed by the governor according to an 1860 court decision.² In its dictum the court noted it was not necessary for a fast day to be "observed as a Sabbath."

A Nevada Act for the "Better Observance of the Lord's Day" was held no bar to a valid notification of contract rescission given in Nevada on a Sunday in 1875.³

A defendant was prevented from using the Wisconsin prohibition on Sunday business as a defense against the enforcement of a contract signed only by the defendant on Sunday.⁴

Theodore P. Bucher was injured while riding a Sunday train. He heard the judge instruct the jury that "he was traveling upon the Sabbath Day, in violation of the law of the State of Massachusetts." [96] To Bucher's chagrin, the United States Supreme Court of 1888 felt obligated to repeat the decisions of the state court, which held that this illegal act of the plaintiff was a valid defense available to the defendant.⁵

A murder verdict was reversed by the Supreme Court in 1891. The court indicated that the judgment also would have been void if it had been in fact entered on Sunday in violation of applicable law.⁶ Since there was no statute to the contrary, the 1897 court ruled that the receiving and entering of a Sunday verdict where the judgment itself was not entered until the following Friday did not constitute a void Sunday judgment.⁷

None of these cases represented a frontal assault charging either an "establishment of religion" or the "prevention of the free exercise of religion." Even after the Fourteenth Amendment became law, not before the twentieth century did the Supreme Court rule that state and local governments must be guided by Federal First Amendment guarantees. Nevertheless the police-power rationale for support of Sunday legislation was planted before the Civil War and took root while the majority of state courts felt free to uphold blue laws as religious establishments.

A Seventh Day Baptist named Specht had clashed with the Pennsylvania Sabbath law about the time William Lloyd Garrison was jousting with the same problem. The highest tribunal of that state took a big step into judicial history by describing the regulation as "essentially but a civil regulation made for the government of man as a member of society."⁸

Then, as if seeking to harmonize the new civil regulation doctrine with the older accepted "religious establishment" approach, the Pennsylvania Supreme Court of 1853 implicitly admitted a church-state union. The court avoided a purely secular justification for Sunday laws, describing them as a "civil institution," since government is founded on "Divine appointment." 99] "Rest one day in seven was enjoined by the precept and [example of the Author of our existence, and government, founding itself on Divine appointment, has made it a civil institution."

In that same year the same Pennsylvania court retreated even farther from its revolutionary "civil regulation" doctrine of 1848, recognizing the religious establishment doctrine at least to a degree. The court felt it far from irrelevant to its decision to sustain the divine authority of the institution. As if to remove any doubt, the court stated, "We have no right to give up this institution. It has come down to us with the most solemn sanctions, both of God and man."¹⁰

Other religious establishment attitudes emerged in subsequent Pennsylvania decisions. In 1855 the court said: "It is perfectly natural . . . that a Christian people should have laws to protect their day of rest from desecration. Regarding it as a day necessarily and divinely set apart for rest from worldly employments, and for the enjoyment of spiritual privileges, it is simply absurd to suppose that they would leave it without any legislative protection."¹¹

In 1859 the court was sure that "the Sabbath and its institutions were the prominent means" to the progress of civilization. It asked, "How, then, is it possible for a Christian people to avoid protecting such a day and its institutions?"¹²

In 1867 Justice Strong of the Pennsylvania Supreme Court, in a nisi prius hearing, declared that Christianity is part of that state's common law. He stated, "If Christianity is part of the common law, it carries with it a civil obligation to abstain on the Lord's day from all worldly labor and business, except works of necessity and mercy. Christianity without a Sabbath would be no Christianity."¹³

Though speaking of police power, the Pennsylvania court still was reluctant to abandon the religious establishment tradition. At the time, the civil regulation concept had not emerged in its purest form, but the seed had been planted.

[100] The Ohio Supreme Court in 1853 described the Sunday law of that state as a "mere municipal, or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day."¹⁴

Pennsylvania and Ohio had done some innovating, but it was a Californian who refined and developed the rationale which ultimately captured the attention of the United States Supreme Court. Two of the three judges sitting on the California Supreme Court in 1858 ruled that the "Act to Provide for the Better Observance of the Sabbath" violated the constitution of that state.¹⁵ Justice Stephen J. Field, a bitter personal antagonist of Chief Justice David Terry, dissented vehemently. While admitting that the law referred to the Christian Sabbath, and that religious convictions could have controlled some of the legislators who voted for the measure, Field refused to see more than a "rule of civil conduct." He claimed that the law did not "even allude to the subject of religious profession or worship."

He argued that there existed only the establishment of a civil regulation and the means "to protect labor." He maintained that "a civil regulation cannot be converted into a religious institution because it is enforced on a day which a particular religious sect regards as sacred." He skillfully framed the basis for law which was embraced by every court that adopted the "police power" philosophy. Said the justice: "The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted." He referred to both the Specht and the Bloom cases as instrumental in the formulation of his dissent.

Three years later, Field had his way in California. When Chief Justice Terry resigned in 1859, Justice Field presided through the October term, 1862. [101] When another Sunday-law case came before the court in 1861, two new justices joined with Field and followed the "police power" of the earlier Field dissent and ruled that the object of the Sunday law "was only to require duties purely civic or secular."¹⁶

Massachusetts found occasion to term its Lord's-day statute as "essentially a civil regulation" in response to the Field doctrine.¹⁷ This 1877 case of Commonwealth v. Has was unique because it contradicted Massachusetts cases, both before and after, that accepted Sunday laws as religious establishments.¹⁸ Still it was to become a pivotal point of reference in future considerations of the constitutionality of the Massachusetts Sunday law.

In 1892 the Georgia court likewise adopted the "police regulation" theory, drawing a fine line between "keeping a day holy as a religious observance, and merely forbearing to labor on that day in one's ordinary vocation or business pursuit."

The case involved a man named Hennington, who worked for a railroad that was at odds with the Georgia Sunday law prohibiting freight trains from moving through Georgia on Sunday, even though the train originated in Tennessee and was routed to Mississippi. The extent of a state's right to regulate interstate commerce was the prime issue that finally reached the United States Supreme Court, but the "police purposes" of Sunday legislation received plenty of exposure along the way.

The Georgia court declared, "The statute can fairly and rationally be treated as a legitimate police regulation." The court held that the Sunday-closing statute is not "vitiated, or in any wise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious rather than by the civil aspect of the measure."¹⁹

In 1852 the Georgia court had shown an inclination to disapprove "municipal arrangements which overlook and disregard the moral law of the Great Jehovah, who, from the smoking top of Mount Sinai proclaimed to all the world, 'Remember the Sabbath-day to keep it holy; in it thou shalt not do any work.’"¹⁹

[102] In 1871 the same court declared, "The law fixes the day recognized as the Sabbath day all over Christendom, and that day, by laws to be "beneficent to the poor and dependent, to the Divine injunction, is to be kept holy." Then it contradicted itself laborers in our factories and workshops and in the heated rooms by stating, "The Christian Sabbath is a civil institution" deserving of legislative regulation for "the preservation of good morals and the peace and good order of society."²¹

In 1873 the same court emphasized the sanctity of Sunday which was to be protected from violation because "the Sabbath day is regarded as the Lord's day."²² In 1879 the court described Sunday as a holy day with "the current of decision by this Court" having been "pro-Sabbatic in full measure."²³

Although the civil institution dogma had been alluded to in 1871, it was not until the Hennington case in 1892 that the Goergia court appeared willing to tone down the religious aspect of Sunday legislation. Ironically it picked the year of the Columbian Exposition struggle and the year that Justice Brewer declared his "Christian nation" sentiments.

Before the United States Supreme Court was offered the Hennington matter, the stage was et by a case in San Francisco relating to the regulation of working hours for laundries. The ordinance in question prohibited night work at laundries between 10p.m. and 6a.m. and also demanded Sunday closing. A man named Soon Hing was arrested for working after 10p.m., February 25, 1884.

When the case came to the Supreme Court of the United states in 1885, an expert on "police power" was there to deliver the opinion of the court. Justice Stephen J. Field did more than find that the regulation of the hours of night work was a valid "police regulation." He also touched on the Sunday issue. Reminiscent of his dissenting remarks in Ex ParteNewman, Field reasoned that "laws setting aside Sunday as a day of rest are upheld, not from any right of the Government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor." [103] He judges Sunday laws to be "beneficent . . . to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities."²⁴

Although it was one man's expression, it served as a beacon light for subsequent judicial thought. In this sense it was a landmark in the move to recognise blue laws as valid "civil regulations." Sitting with Field in the Soon Hing matter was Justice John M. Harlan. He later adopted and embellished the Field approach in the Hennington case in 1896.

Both Harlan and Field were present to hear the Brewer dictum of 1892 that "laws respecting the observance of the Sabbath" are a part of the evidence that this is a Christian nation. Although temporary lapse from the police power principle was implicit, neither Field nor Harlan saw fit to argue on the record at the time that Sunday laws are not religious but civil regulations.

Justice Harlan waited until the Hennington v. Georgia case in 1896 to speak out for the police power approach to Sunday legislation. (Only Justice Horace Gray along with Justices Field and Harlan participated in all three decisions – Soon Hing, Hennington, and the "Christian nation" proposal.)

Chief justice Melville Fuller and Justice Edward D. White comprised the Hennington case minority which argued that the Federal Congress has exclusive jurisdiction over interstate commerce, and state power must give way to Federal even in a "mere regulation of police."

Justice Harlan was joined by Justices Field, Gray, Brown, Shiras, and Peckham in upholding the right of the state of Georgia to regulate railroad lines running through the state irrespective of the interstate commerce aspect. They extended this ruling to the right of the state "to prohibit all persons, under penalties, from using the Sabbath as a day for labor and for pursuing their ordinary callings." [104] And if the statute forbidding the movement of "freight trains, on the Sabbath day, had been expressly limited to trains laden with domestic freight, it could not be regarded otherwise than as an ordinary police regulation established by the State under its general power to protect the health and morals and to promote the welfare of its people."

For precedent authority in this ruling, the court cited the Bloom case along with the Field view as expressed in Ex Parte Newman. Harlan also incorporated the bold language of the Georgia court. His statement was reminiscent of the earlier Field attitude:

This was the same Justice Harlan who, in 1908, spoke to a religious assembly in the nation's capital in open advocacy of the religious values of the "Sabbath" establishment.

The year 1896 marked a high point in the history of judicial comment relating to Sunday laws. When a Minnesota Sunday-closing law directed against barbers was subsequently heard, the court would not reverse itself. The court held that the classification of barbers was not so arbitrary as to violate the constitution. "[105] We have uniformly recognized state laws relating to the observance of Sunday as enacted in the legitimate exercise of the police power of the State .1126

The police power doctrine was in full flower. But the police power contention leaves questions unanswered.

1. Under the police power approach, is there any religious establishment that cannot be validated because of public-welfare benefits? If not, where can the line be drawn with constitutional certainty

2. When in 1896 the Supreme Court adopted the police power rationale in earnest, there was little evidence of legislative or individual intent that Sunday laws are a civil institution. On the contrary, there is evidence that the "civil" label was exclusively a judicial invention. At what point in history, other than the moment of judicial opinion, can it be said that Sunday laws abandoned their historic religious nature to become harmless civil institutions

3. Chief proponents of Sunday legislation have been ardent religious groups. Chief victims of Sunday-law enforcement have been religious minorities. Why?

4. If Sunday was intended to be a civil holiday for the public welfare, why the criminal penalties for violation? Fourth of July and Labor Day observances carry no penalties.

5. If the "observance" is structured to protect labor as suggested by Field, why fine the man who works by his own choice on Sunday

6. When the citizen is given Sunday for rest, why by the same law deny him the pleasure of "worldly amusements" and Sunday sports

7. If it is a valid civil regulation, why does Sunday legislation arbitrarily establish classes of labor and business that are or are not acceptable? If coerced rest is essential on Sunday,, why is it not equally essential, for all citizens regardless of occupation?

8. [106] If simultaneous rest is impossible for all citizens, why not enact a simple welfare measure that guarantees one day’s rest in seven to all for each consecutive seven-day period with the choice of the day left to the individual need and convenience?

9. How can a state like Massachusetts which had a "one day in seven" law concurrent with its Sunday-rest law, utilize the "police power" as opposed to the "religious establishment" rationale for sustaining the Sunday law? Where a "one day in seven" law exists, would not the remaining purpose of the Sunday law be "religious establishment"?

10. If blue laws are to promote better health, is there anything inherent in the nature of the day, Sunday, that is more healthful than any other day of the week? In the valid work-hour regulations of state governments, there is no designation as to the days when the work must be performed, nor the hours of the day when work must commence, nor the time of the day or night when men must sleep. What entitles Sunday observance to this restrictive treatment?

11. Why are Sunday-law prohibitions sometimes limited to certain geographic districts or population levels, making crimes contingent not only upon the hour and the day but also upon the size and location of the community where the conduct occurs?

12. If Sunday laws are not religious establishments, why do some statutes carry toleration exemptions for religious minorities that worship on a day other than Sunday?

Whatever the answers, many state courts took no notice of Field's police power approach and continued to cling to religious establishment in support of blue laws even after the United States Supreme Court had spoken in 1896 and 1900.

But what if the First Amendment to the Federal Constitution were made applicable to state and local government and then a state Sunday law was attacked directly as an "establishment of religion" and as a law "preventing the free exercise of religion"?

Twentieth-century judicial development produced the answer.