Why Shmuely has me seeing blue - The Jewish Standard

Ever since Rabbi Shmuely Boteach and I began sharing this space, neither of us has commented on what the other has written. Rabbi Boteach’s recent endorsement (in this space and more expansively elsewhere) of Bergen County’s laws prohibiting most offices and businesses from opening on Sundays obliges me to break that tradition.

I have no objection to requiring businesses to be closed one day a week, or even one weekend day of the week; it is the designation of Sunday exclusively as that day that is objectionable.

“Just because something has its origin in religion does not mean that it lacks a compelling secular logic,” Rabbi Boteach wrote in his column, echoing a view expressed 48 years earlier by the Supreme Court of the United States. The High Court was wrong then; Rabbi Boteach is wrong now.

Keeping the FaithThe reason they are wrong is far more compelling than any argument offered for maintaining these odious laws: The Sunday “blue laws” – so-called because the first such laws were printed on blue paper – discriminate against people who observe their Sabbaths on days other than Sunday. How is it fair when a Shabbat-observant Jew or a Seventh-Day Adventist is forced to shut down a business two days a week – one day because his or her religion demands it and one day because the state, adhering to Christian beliefs, demands it?

These blue laws send a very positive “spiritual message,” argues Rabbi Boteach.

There is a spiritual message in these laws, but not a positive one. In fact, there are at least two messages. The first is that Christianity is superior to other religions because its sacred day is preferred by the state. The second is that the only way a non-Christian person can have a level playing field in which to compete in this “Christian world” is to abandon the observances of the non-Christian faith.

(If anyone wants a closing law that sends a strong positive spiritual message, how about one that forces all businesses to close on Memorial Day, that “these honored dead” should not provide yet another excuse for us to shop until we drop or aimlessly down hotdogs at ballparks?)

The blue laws were Christian in origin and meant to make America a Christian country. Earl Warren, the chief justice of the United States, said as much when he nevertheless upheld their validity.

“There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces,” Warren wrote for the majority in the case of McGowan v. Maryland in 1961. Specifically, he wrote, the basis for colonial blue laws was a 1677 act issued by Charles II, which had as its stated goal “the better observation and keeping holy the Lord’s day, commonly called Sunday.”

Just because they began as religious legislation, however, did not mean that the blue laws could not be justified in secular terms, Warren argued (as does Rabbi Boteach).

Even before the onset of the 18th century and certainly after it, the chief justice wrote, “nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor…. [For example, the] New York law of 1788 omitted the term ‘Lord’s day’ and substituted ‘the first day of the week, commonly called Sunday….’

“More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come….

“To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and state.”

Warren had an answer to the inequity question. It could be summed up in two words: “Tough luck.” Apparently, it did not bother him or the court majority that the blue laws “give a constitutional interpretation of hostility to the … welfare” of anyone who is not an observant Christian.

In Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., the appellants were Orthodox Jewish retailers who sought to have a 1959 Pennsylvania statute vacated because it posed a serious economic hardship on them.

The chief justice, in a decision issued on the same day as McGowan, noted that the Pennsylvania law “simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.” The law, however, made no attempt “to make a religious practice itself unlawful,” namely the observance of Saturday as Shabbat. That, Warren wrote for the majority, made all the difference in the world.

The state, he said, had every right “to set one day of the week apart from the others as a day of rest, repose, recreation, and tranquility – a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself.”

In other words, too bad if you have to keep closed on Saturday while your non-Jewish competitors are allowed to keep open; you still have to be closed on Sunday because your competitors’ “secular” day of rest will be impaired.

The blue laws in Bergen County date back to 1959. They went on the books, in considerable part, thanks to the agitation of the county’s churches.

Back in 1993, an effort to repeal these noxious laws was voted down by a 5-3 margin. Here is a sampling of some of the pro-blue laws sentiment at that time, as reported in The Record:

“Recession or not,” said a Rochelle Park resident, “we must remember the Ten Commandments given by God and obey them, or else penalty will come.”

Said a Bergenfield resident, “God gave us a day of rest. Who are we to go against it?”

From Waldwick, we were told, “God knew what He was saying when He gave us the Ten Commandments.”

And from Ridgewood came this: “[A]re we not commanded by God to rest on Sunday, to cease from worldly tasks, to rest and worship and honor God for all He has done for us?”

No, actually, God commanded us to rest on Saturdays, not Sundays. And no one should be penalized for believing that.

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