Gallagher v. Crown Kosher Super Market of Massachusetts, Inc.

PETITIONER:Crown Kosher Super Market
RESPONDENT:Gallagher
LOCATION:District Court of Massachusetts

DOCKET NO.: 11
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 617 (1961)
ARGUED: Dec 07, 1960 / Dec 08, 1960
DECIDED: May 29, 1961

ADVOCATES:
Herbert B. Ehrmann – For the Appellees
Joseph H. Elcock, Jr. – For the Appellants

Facts of the case

The owners and a majority of the patrons of Crown Kosher Super Market are members of the Orthodox Jewish faith, which forbids shopping on the Sabbath, from sundown Friday until sundown on Saturday. Crown Kosher Super Market had previously been open for business on Sundays, on which it conducted about one- third of its weekly business. In 1962, the Massachusetts’ Legislature enacted a statute forbidding shops to be open and doing any labor, business, or work on Sunday. The Crown Kosher Super Market argued this provision violated the Equal Protection Clause of the Fourteenth Amendment since it does not respect their religious practices. The federal district court held that this provision is unconstitutional, but the U.S. Court of Appeals for the First Circuit reversed and held that the provision does not prohibit the free exercise of religion.

Question

Do statutes that require stores to close on Sundays violate the Equal Protection Clause of the Fourteenth Amendment by not respecting the establishment of religion and prohibiting free exercise as applied to the states?

Earl Warren:

Number 11, Gallagher, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants, versus Crown Kosher Super Market of Massachusetts, Incorporated, et al.

Mr. Elcock.

Joseph H. Elcock, Jr.:

Mr. Chief Justice, members of the Court, may it please the Court.

This is an appeal from a decision of a three-judge court for the District for the First District, relating to the Sunday Laws of the Commonwealth of Massachusetts, so called.

The proceeding was held in the District Court for Massachusetts as a result of a hearing and a decree.

A decision of the court was rendered by two members of the court and a majority — a majority decision entered by the court and a minority opinion by Justice McCarthy.

As far as the proceedings before the District Court are concerned, a complaint was filed by the petitioners alleging, in effect, that they conducted a Kosher Super Market in Springfield, Massachusetts, at which Kosher Super Market, they sold foods which had been approved by the rabbi, that they sold those foods for purposes of satisfying the religious requirements of the various customers of that particular store, that they held their store closed from sundown on Friday through Saturday and that they opened their store on Sunday.

Basically, the violation that was involved here related to the sale of foods by that Kosher Super Market on Sunday.

There were three cases initially in the Massachusetts Supreme Court against the manager of that market and as a result of convictions in those three cases, a declaratory judgment proceeding was brought in the District Court prior referred to.

As far as the–

William O. Douglas:

Do you think the fact that it was a Kosher market, rather than some other market and relevant here to the issues?

Joseph H. Elcock, Jr.:

To us, Your Honor, it has no relevance in the sense that this is a super market.

It sells– the evidence will show that it sells foods which were approved by the rabbi.

It will also show that they sold foods which were not necessarily kosher foods.

To that extent, they went beyond what may well have been the requirements of a Kosher Super Market in the sense of selling only foods.

It will become significant from the point of view of the complainants, Your Honor, in the sense that they claim that in order to satisfy the religious requirements of their customers, it is necessary that they be able to make sales on Sunday.

To that extent, from their viewpoint, it does have a religious connotation in the sense that they claim that not by being prohibited from making any sales on Sunday that the religious rights of their customers are disturbed, as well as the religious rights of the officers and directors and stockholders of this particular corporation.

There were allegations and it has been admitted that the stockholders, the directors and the officers of this Crown Kosher Super Market were, in effect, obliged by the tenants of their religious beliefs to remain closed during those hours that I have referred to, that is from Sundown on Friday night through Saturday, through, at least until sundown on Saturday.

Thereafter, of course, they would be allowed to open.

So, we would say that, from our viewpoint, Your Honor, it is not significant or should not be significant that there is a religious connotation to at least some of the sales made by the Crown Kosher Super Market.

On the other hand Your Honor, as I say, the gravamen of the action would be, as far as I’m able to determine from the complaint, that the very fact that the Massachusetts statute here, obliges them to close on Sunday, interferes with their religious rights and they go one step further because the Massachusetts statutes, as they alleged and which, of course, is the knife from my viewpoint, because the Massachusetts statute is predicated upon what they believed to be a religious ground, they then say that under the Fourteenth Amendment to the Constitution that their religious rights are disturbed.

Of course, Your Honor, you’re going —

Earl Warren:

Do you make a distinction between — between religious rights and — and religious observance?

The — the point I make is — is this, I am not quite clear how they allege that keeping open on Sunday interfered with their religious observances.

Joseph H. Elcock, Jr.:

As I understand it, Your Honor, it would be on this basis.

Ordinary markets in the Commonwealth of Massachusetts may open six days a week and they are required to close on — on Sunday.

They contend that they are obliged to close on Sunday because of the statute and because of their religious beliefs they are obliged to close on Saturday.

Thus it is argued, they are obliged to remain closed two days in the week, whereas, the ordinary market in a similar position, would be allowed to — would be obliged to be closed on only one day of the week.

So —

Earl Warren:

Then, they suffer an economic loss rather than the loss of — of religious —

Joseph H. Elcock, Jr.:

Exactly Your Honor.

Earl Warren:

Observance.

Joseph H. Elcock, Jr.:

It —

Earl Warren:

Is that your point?

Joseph H. Elcock, Jr.:

Well, I believe that is the point that they are taking.

That there is an economic loss to them and that they are obliged to forego the right to carry-on business on one extra day of the week and because of the fact that they forego it to their religious beliefs and because of the fact that the Sunday closing, according to them, is similarly predicated upon religious grounds, they then say that a religious law has put them in a position where their economic rights are disturbed.

Potter Stewart:

Or stated the other way, they’d say that there’s economic pressure exerted upon them to give up their religious beliefs.

Joseph H. Elcock, Jr.:

I believe Your Honor, they would.

They would say that because of the preference that may be given to persons who are not of their persuasion would put them in a position where others might feel that they shouldn’t perhaps, be bound by the tenants of that religious state.

Potter Stewart:

The state by these — by these statutes has brought about the exertion of economic pressure upon them to give up their religious beliefs.

Isn’t that —

Joseph H. Elcock, Jr.:

Yes, Your Honor.

Potter Stewart:

That’s the other side of the standpoint?

Joseph H. Elcock, Jr.:

That’s — that’s the other side of the argument.

Of course, as we will point out in the course of our argument Your Honor, the Commonwealth imposes limitations on Sunday and for no state action whatsoever, are these people closed on Saturday, nor are they closed on Friday.

So that, we would say that everyone is subject to the Sunday Law and assuming the Sunday Law is a valid one, the mere fact that it would have an indirect effect upon their religious rights would not in and of itself, make the Sunday Law invalid.

There are many instances, I would assume that would more or less, indicate that approach.

We have certainly requirements that students, for example, shall attend schools.

We have obligations upon the parents to support schools, say to support the public schools yet I don’t think there’s any doubt that some parents, perhaps because of their religious beliefs, also would support another school system such as a parochial school and to the extent that there is an economic detriment on one religious group or another, that per se, Your Honors, we feel would not be a sufficient ground under these particular circumstances.

Felix Frankfurter:

But the claim is that economic pressure of being closed on Sunday is an economic pressure that is referable to religious — to impermissible religious restriction.

Joseph H. Elcock, Jr.:

That’s true Your Honor.

Felix Frankfurter:

So that —

Joseph H. Elcock, Jr.:

Perhaps, I —

Felix Frankfurter:

Shall we put it to get around to the fact, the claim is that their religion makes them close on Saturday and — and the State does something on Sunday which they would be free to do but for a religious interference.

Joseph H. Elcock, Jr.:

They would say that and I intend that Your Honors, perhaps to fill a little more detail, but since the issue was really just in what you say, let me direct my attention to that point.

We do have a statute of Massachusetts that requires closing on Sunday.

And one of the basic arguments of the complainants in this case, is that that statute is a religious one and the Fourteenth Amendment would impose an obligation on the States to refrain from passing any statute of that nature.

Hugo L. Black:

May I ask you this.

Does the statute itself, treat this as a religious holiday or just a legal holiday?

Joseph H. Elcock, Jr.:

It is our contention that today, in its present form it treats it more like in the nature of a legal holiday.

Hugo L. Black:

Where is it?

What — what is its present form?

Where is that I mean, in your brief —

Joseph H. Elcock, Jr.:

Well, Your Honor it’s set forth in our brief in Appendix A in detail and the statute is fairly broad.

Section —

Hugo L. Black:

Beginning at page 80?

Joseph H. Elcock, Jr.:

In the brief, it’s at page 97.

Hugo L. Black:

97.

Joseph H. Elcock, Jr.:

And it’s fairly long statute, Your Honor.

It covers several pages in the brief here.

Hugo L. Black:

As the old statute, which was printed on page 80 aided — aided and supplanted by this new statute?

Joseph H. Elcock, Jr.:

I — I missed that question.

Hugo L. Black:

Has the statute printed on page 80 of your Appendix A —

Joseph H. Elcock, Jr.:

That — that’s —

Hugo L. Black:

— been supplanted by a new statute?

Joseph H. Elcock, Jr.:

No, Your Honor.

This is the statute, on page 80, following through to 97.

I — I perhaps gave the wrong reference.

Hugo L. Black:

Which says — does it say, Lords day, definition?

Joseph H. Elcock, Jr.:

Yes, Your Honor, that is the one.

The Lords day shall include the time from midnight to midnight and to the extent that the word, “Lords day” is in the statute to that extent, my brothers likewise, would claim that therefore, it is a religious statute.

But we would say, Your Honor, that this statute has perhaps, a history which would show that religion initially, may have had some part in determining the very fact that this statute was put on the books.

We would say, Your Honor, that because of the passage of time and the amendments to the statute, it now takes on a connotation which is no longer a religious one, but it is one whereby Sunday is set aside in Massachusetts as a day of rest and recreation.

Hugo L. Black:

Have the — have the amendments that have been passed have changed this language?

Joseph H. Elcock, Jr.:

They haven’t changed the language in that first section, Your Honor, where the Lords day —

Hugo L. Black:

Did it change the language in the second section?

Joseph H. Elcock, Jr.:

In essence, yes.

These sections two, three and four have been passed at a time subsequent to the initial enactment.

Hugo L. Black:

Did they change the language?

Joseph H. Elcock, Jr.:

Well, the initial Lords day statute, Your Honor, did not have section two in it.

Joseph H. Elcock, Jr.:

The language which was there put in, was put in as an amendment after the initial statute of Massachusetts, back in colonial days, was enacted.

Hugo L. Black:

Well, does the law in effect now, in section two, contain this statement about the presence of games and so forth on the Lords day?

Joseph H. Elcock, Jr.:

Yes, it does.

Hugo L. Black:

I’m trying to get what — what it is we have.

Joseph H. Elcock, Jr.:

When you have the very statute —

Hugo L. Black:

I want to follow the Sunday Laws we have, are written in that form.

Joseph H. Elcock, Jr.:

Most, but not all.

One, perhaps that has been before this Court most recently, is that involved in the State of New York in the case of — in the Friedman case which is cited in our brief.

And in that New York statute, again, we have the same kind of language.

In Section 2140 of it, you’ll find that statute, Your Honor, incidentally, in the — in the records in detail of the Friedman case which was up here on appeal, you’ll find it referred to in the briefs of the various parties but, in that New York statute, Your Honor, it specifically indicates that the violation of this particular statute is Sabbath breaking and it provides that the breaking of the law here would constitute a serious interruption of the repose and religious liberty of the community.

Now that, Your Honor, was in the New York case, when that matter was appealed to this Court.

It was dismissed without hearing on the ground that no federal question was involved and if one looks at the decision of the State Supreme Court in that matter, which was the one I would assume that this Court examined in deciding to dismiss the case, it will appear that this very question of religion was discussed.

Hugo L. Black:

That was the Friedman case?

Joseph H. Elcock, Jr.:

Yes, Your Honor.

It will also appear that in the New York courts, it had been determined that although initially, this statute in New York may have had a religious significance that as a result of the various amendments to it, it no longer was for the purpose of preferring one religion to another, establishing one religion or what have you, as far as religious base is concerned.

And the mere fact that the word, “Sabbath” was in there, as far as I’m able to determine, was not persuasive upon this Court of the fact that the Constitutional rights of the parties in that particular case had been injured.

Now, we have, Your Honor, a statute almost identical with it.

I cannot say, word-for-word it is identical, but it is highly similar in the sense that instead of talking about the Sabbath, Massachusetts talks about the word, “Lords day.”

We have all kinds of — of limitations and exceptions in our statute, just as they did right here in — in New York.

So as far as we are concerned, one of the very cases which has been up here for determination by this Court, had in it the very elements that are in this Massachusetts statute.

So we would say, although we have not printed in detail in our brief the statutes from all the other States, a good percentage of them do.

And in Appendix B to our brief, Your Honor, we have made reference to most of those statutes and to all of the cases which — all the significant cases, which have been decided under them.

Hugo L. Black:

Do you think the express purpose of a statute could make any difference in connection with its constitutionality in this respect?

Suppose the statute says, one because a Christian church observes this day as a religious festival and we are incorporating that and make it a — a holiday because of that fact, do you think that would change it?

Joseph H. Elcock, Jr.:

No, Your Honor.

I do not think it would for this reason.

Basically, we are here, dealing with a statute which provides for one day of rest out of seven, something like a wages and hour law and if it turned out that the best day to pick for that purpose was one already observed by the great number of people in the United States or in the Commonwealth, then for purposes of achieving a day of rest, it would be highly desirable to pick one already observed by the people as a result of custom and uses.

Now, if it — once it is admitted and I don’t believe it’s actually denied that a state may enact one day as a day of rest, then the mere fact that they might pick out a day where other people would or some of the people would be observing it for persons or reasons of a religious nature, does not in and of itself, make the statute invalid.

Hugo L. Black:

Have you investigated to see whether there are any other religions that observe other days of the week as a religious festival?

Joseph H. Elcock, Jr.:

We didn’t go into —

Hugo L. Black:

Besides Saturday and Sunday?

Joseph H. Elcock, Jr.:

As I believe —

Hugo L. Black:

Who live in this country?

Joseph H. Elcock, Jr.:

Not in our brief, but I — I did find reference in some articles, Your Honor, indicating that some Buddhist, for example, might —

Hugo L. Black:

What —

Joseph H. Elcock, Jr.:

Use Tuesday —

Hugo L. Black:

What day —

Joseph H. Elcock, Jr.:

Out —

Hugo L. Black:

Do they have a day —

Joseph H. Elcock, Jr.:

Tuesday.

Hugo L. Black:

Of the week or something?

Joseph H. Elcock, Jr.:

As I understand it.

Now, I’m speaking here, Your Honor, perhaps of — of memory.

We do not have it in the brief as such, but this very point that you’re raising, I think would more or less, indicate the difficulties that we’d run into.

Let’s assume —

William O. Douglas:

Your — your position is about what the Supreme Court of Massachusetts took in that 1877 decision (Inaudible)

Joseph H. Elcock, Jr.:

Yes, Your Honor.

We have a state determination in the Commonwealth of Massachusetts, Commonwealth v. Has, which is cited in our brief and examined at some detail, which says that, although the statute may initially have had a religious background, it now and this is as of the middle of the 1800s, is a statute setting up one day of rest in the community.

And the mere fact that it may have had a religious history does not make it valid — invalid as such.

I would point out, Your Honor, that the — when this statute initially started, it didn’t just prohibit people from opening shop on Sunday.

This statute obliged people to attend services and to that extent, the initial history of the statute in colonial days, would indicate that there was a religious basis to it.

I think it — it’s fundamental that many of the colonies when — when set up, were set up because of religious grounds and we can’t deny the history of our country and say that there was no religious basis in some of the statutes which they enacted.

But through the passage of time, the adoption of the Constitution, the changes which have been made in the statute itself, one which at that time, served the needs of the community from a religious viewpoint, has been the vehicle whereby, today, one day of rest is set aside out of seven so that, instead of — of people being oppressed and having to work because of the pressure of competition, they are now able to take that one particular day and spend it with their families and what have you.

Now, I believe, Your Honors that it is quite clear that any statute, whether we picked — whether it picked Sunday or any other day, would have an indirect effect upon the rights of some individuals who would — would desire to remain open on the particular day selected.

As such, there will be a — an economic pressure on I would say, some group, no matter what day was picked.

On that ground, Your Honor, let’s say that we picked Saturday instead of Sunday, then I can foresee without too much difficulty that Christians or persons who would observe Sunday, would have the same complaint against the statute as the Jewish people would have in connection with this one or that group of — of Christians who would observe Saturday as the Sabbath, so that it doesn’t answer the problem to say we may change from Saturday — from Sunday to Saturday.

Again, Your Honors, if we pick —

Potter Stewart:

Isn’t the problem — isn’t the precise problem you’re talking about now answered by the statute that you apparently have in Massachusetts just proscribing that there shall be one day of rest every Sabbath?

Joseph H. Elcock, Jr.:

We have one.

Potter Stewart:

Or any designation —

Joseph H. Elcock, Jr.:

Yes.

Potter Stewart:

On a specific day and you have that on the — on the —

Joseph H. Elcock, Jr.:

We certainly do, Your Honor and I think it’s vital as a supplement to our Sunday statute.

Potter Stewart:

Well, that wouldn’t step on anybody’s toes, would it?

Joseph H. Elcock, Jr.:

I don’t believe it would.

If we had a seventh — one in seven, it would not, but look —

Potter Stewart:

And you do have it, don’t you?

Joseph H. Elcock, Jr.:

Yes, we do in chapter one hundred and forty-nine, Your Honor, but here’s the difficulty, if we picked one day in seven, one man will pick Monday, another Tuesday, another Wednesday.

As far as that is concerned, a wife who might be working and a husband who would be working would necessarily take the same day.

The children would be off at school, that kind of thing.

Potter Stewart:

Now, do you think that’s really true?

There is — there are several states in the United States, I understand they don’t have any Sunday Laws at all.

Joseph H. Elcock, Jr.:

Yes, we–

Potter Stewart:

California is one of them.

Joseph H. Elcock, Jr.:

That’s correct.

We have —

Potter Stewart:

You’d been probably to California.

I’ve been there and I didn’t see any evidence that people were taking different days off in —

Joseph H. Elcock, Jr.:

Well, let —

Potter Stewart:

— the same family.

Joseph H. Elcock, Jr.:

Let’s assume — assume, Your Honor that you are correct that there is no absolute requirement that this take place.

Here, we have a question of discretion as far as the legislature of a state is concerned and it is a problem then of whether the legislature in the proper exercise of its discretion, does have a right to pick out one day.

Now, you or I or any other person may say, that is undesirable from a legislative viewpoint.

Is it unconstitutional?

That’s the question here.

As such, we would say, it is not.

Now, many of us may disagree with a particular day.

Many of us may disagree with the fact that there’s not one day in — in seven that you do, rather than pick out the particular day.

But, if the legislature in the proper exercise of its discretion, has selected this one particular day, then we do not feel that it is for a court to say that the legislature has acted improperly.

There is one other point on this.

Joseph H. Elcock, Jr.:

As far as this Massachusetts statute is concerned, there are many exceptions to it, Your Honor, whereby people may stay open on Sunday.

In the brief, we have spelled out that — the exceptions to it and of course, the statute is set forth in here.

People, for example, running roadside stands, if you happen to be driving a car, you could stop, people running certain amusement areas, people conducting businesses which would be essential for the carrying on of — of life today, transportation, fuel, necessary, things of that sort, all of those people would be in a category where they could be called upon to work without violating this particular statute.

Now, if those people who have to work on Sunday are to be given the benefit of one day off, anyway and they can’t take Sunday, fairly clearly, it would be up to the Commonwealth in its discretion to pick out some other day and thus, it is said that, where we run into a situation where people might be working on Sunday, an employer cannot insist that thereafter, they work the other six days.

To that extent, I would say that our statute saying that you cannot have seven consecutive days, is a necessary adjunct to our Sunday Law, so-called, which in effect says, “everybody closes on Sunday except” the people that then have to work on Sunday are given the benefit of this other day which may be available.

Potter Stewart:

That is with respect to the same employer.

You can’t do anything about moonlighting or related —

Joseph H. Elcock, Jr.:

No and we have many people, Your Honor, who do just exactly that.

There’s no particular penalty under that statute which would say that if an individual himself, works —

Potter Stewart:

Was working for two different employers.

Joseph H. Elcock, Jr.:

Yes, Your Honor.

It is an obligation which is or a — a restraint which seems to have placed upon the employer, whereby he himself, would be subjected to a — a criminal violation, if he forced a man to work or a woman to work for the full seven consecutive days.

I have departed somewhat from the facts, Your Honor, and I think it perhaps, would not achieve a tremendous amount to go through it in detail as such.

You have suggested here that the basic issue is that of this Sunday Law and I think, if they have answered that particular question, I would like to proceed just a little bit with the argument further along those lines.

The facts have been set forth in — in detail in the brief and we do not have too much of a quarrel with the facts in this particular instance.

We do have a quarrel with the results which have been reached in this particular decision.

The complaint — to refer back to it for just a moment, raises constitutional questions here, predicated upon the Sunday statute, which raised the Fourteenth Amendment as a — an argument that this Sunday Law is invalid.

Now, the first one and the one that I think we have discussed to some extent here is that the statute in Massachusetts is one, which establishes a religion.

We have explored part of that.

Let me point out to you, Your Honors that this particular statute, if it is examined a little more detailed, pages 81 to 89 in our brief, there is adequate to show that the exceptions in the statute themselves, have now changed the very tenor of the statute so that it is one of a lay regulation providing for rest, recreation or providing a — a day when people, if they desire, may carry-on religious pursuits, where they’re free to do as they please.

They are freed of the obligation to work on Sunday, other than for the necessities that may be set forth here in the statute.

This statute is attacked on another ground, Your Honor.

It is claimed that as far as the particular statute is concerned, it not only is predicated upon religion, but that it deprives the complainants in this particular instance of due process of law in the sense that their liberty to carry-on religious activities have been restricted and to the extent that we are dealing with the corporation itself, that its right to moneys have been interfered with.

Under the allegations in the complaint, it is said for example, that the various exceptions which appear in the statute are arbitrary and capricious.

And to that extent, I would assume that even if the statute were not a religious one, that the complainants in this particular proceeding are raising the supplementary and additional ground that the statute itself denies the equal protection of the laws to the plaintiffs — to the complainants in this particular action.

Now, to analyze that problem, we must look at the complainants who are actually bringing this proceeding.

There is a question of parties here, Your Honor, a question of whether or not they had a right to sue.

I believe, we have put it forth in our brief in some detail and I don’t intend to belabor it in oral argument as such, but a brief reference to that position as complainants in relation to their constitutional rights, I think, would not necessarily be out of order.

For example, Your Honor, there are three individual complainants here who purport to be, I shouldn’t say purport to be, they have found — they are found to be customers of this Kosher Super Market.

They contend and we have agreed that they observe the Saturday as the Sabbath and we have agreed that they would not shop on Friday after sundown, nor would they shop on Saturday and that — to that extent, it would be at least an inconvenience for them, if they were unable to shop on Sunday.

Joseph H. Elcock, Jr.:

Now, here Your Honors, we have a problem of three customers of a store complaining on behalf of the store, that the store is not open.

Now, we have made diligent search of the cases and we have yet to find a case holding that a customer of a store per se, has a constitutional right under the Fourteenth Amendment to have all stores remain open.

Now, this argument of course, is going somewhat — beyond the basic religious one as such.

It’s the — the second part of it on due process as to the religious rights of these customers.

And as we have pointed out, we believe any claim which those customers may have in connection with the interference with their right to shop is not per se, one which should allow them to raise its constitutional point.

Felix Frankfurter:

Do you challenge the right of Crown Kosher Super Market?

Joseph H. Elcock, Jr.:

Yes, we do, Your Honor.

For this —

Felix Frankfurter:

Did they have no standing?

Joseph H. Elcock, Jr.:

Yes, would they have no standing, we would contend they have.

Felix Frankfurter:

Why?

Joseph H. Elcock, Jr.:

Well, for the two reasons, Your Honor.

On the first one, is this a religious statute?

Query, how does a corp —

Felix Frankfurter:

That — that goes to the —

Joseph H. Elcock, Jr.:

It goes —

Felix Frankfurter:

(Inaudible) to the issue.

Joseph H. Elcock, Jr.:

Yes, it goes to the issue that we’ve been discussing.

It may not be religious.

Second, assuming it is a religious one, can we say that a corporation has a religion which is interfered with by the statute and I think again, that goes to the very essence of it.

They claim, Your Honor —

Felix Frankfurter:

Was this —

Joseph H. Elcock, Jr.:

And we have —

Felix Frankfurter:

— in the Pierce-Sisters case.

Joseph H. Elcock, Jr.:

Pardon?

Felix Frankfurter:

The school in the Pierce-Society of Sisters.

Joseph H. Elcock, Jr.:

Well now, in the Pierce-Sisters case, Your Honor, a school itself was closed because of the fact that the students were black —

Felix Frankfurter:

Was the school a party before this Court?

Joseph H. Elcock, Jr.:

The rights of the school, Your Honor, may have been raised through a third party but the third parties there, would be ones who would have —

Felix Frankfurter:

I don’t know.

Felix Frankfurter:

I’ll look it up.

Joseph H. Elcock, Jr.:

The parents of the —

Felix Frankfurter:

Does the school itself — does the school itself, come before this Court?

Joseph H. Elcock, Jr.:

Not the school itself, Your Honor, the parents thereof.

Felix Frankfurter:

I know the parents did, but I am asking whether the school — possibly, that may have been a religious organization, if it isn’t a —

Joseph H. Elcock, Jr.:

Well, there were two.

One was a religious organization and one, as I understand it, was a lay organization.

But to go one step further, on your — on this argument, there are some people here that may well — well have had an — an injury.

They were stockholders.

There are directors.

There are officers and I would point out that not a single one of them joined in this thing.

Now, if there is an injury to property, where are these stockholders?

Why didn’t they come in?

Felix Frankfurter:

Do you think the — a corporation can’t exert to represent its stock — stockholders, in such a suit?

Joseph H. Elcock, Jr.:

I don’t think they do.

I think they’re separate and distinct entities.

Felix Frankfurter:

Well, I know they are, but we have held that entities are separate and distinct may urge causes that are inexplicable and wound up with them.

Joseph H. Elcock, Jr.:

Yes, you have Your Honor, but in almost each one of them, there has been some direct connection such as the parents, as far as the school is concerned.

Felix Frankfurter:

I should think a corporation having profit or non-profit, has some relations with stockholders.

Joseph H. Elcock, Jr.:

Well, they do.

There’s no question that they do.

But when we come to look at this particular corporation, Your Honor and we look at the evidence and we have here a claim that evidence might have been insufficient, we have some evidence of gross sales on a given day.

That is almost the scope of the injury to these stockholders.

Now, the mere fact that gross sales may go up or go down, isn’t any real indication that the stockholders are thereby hurt.

Felix Frankfurter:

Do you think it really needs proof that if they were allowed to be open on Sunday, they’d make more money?

Joseph H. Elcock, Jr.:

Well, I think that’s certainly something they’re going to have to raise, because after all, there is a — a Constitution — I mean, a — an amount here as their jurisdiction.

Felix Frankfurter:

You don’t think they could take judicial notice that if they were open on Sunday, they’d have more customers than if they’re closed on Sunday?

Joseph H. Elcock, Jr.:

Well, you can and I wish you would for this reason, if you take judicial notice that they make more money by staying open on Sunday, we would say that you have put your finger right on the difficulty here.

As far as economics is concerned, these people obviously benefit by the fact that they can open on Sunday —

Felix Frankfurter:

But now, you’re going to substantive issues.

Joseph H. Elcock, Jr.:

Well, we are.

Felix Frankfurter:

Yes, I understand that.

Well, I’m now addressing myself into your question of standing and wondering whether you need to spend much time on it.

Joseph H. Elcock, Jr.:

Well, number one, we would say no religion —

Felix Frankfurter:

Your time, not mine.

Joseph H. Elcock, Jr.:

Let me go, if I may, since it’s raised, unless you decide that I leave it, but I like to raise one of the points, Your Honor.

As far as standing is concerned in this particular proceeding, we would say that this corporation has already had its day in Court in the Commonwealth of Massachusetts.

Now, number one, the manager of the corporation, the man who has verified this — particular complaint —

William O. Douglas:

You’re referring now to the previous criminal —

Joseph H. Elcock, Jr.:

Previous — Criminal and previous civil proceedings in the Commonwealth of Massachusetts, to which the corporation was a party and to that extent, Your Honor, we would contend that they would be buying here and that they would not have a right in this particular proceeding to raise it.

As far as the —

William O. Douglas:

You mean they should have come here by certiorari from that?

Joseph H. Elcock, Jr.:

Yes Your Honor in the sense that the manager of the corporation was charged with a crime in the Commonwealth.

He raised constitutional issues under our State Constitution which has a provision in it, almost identical with the — the federal and that is, we cannot prefer one religion to another and again, the Commonwealth of Massachusetts in that particular case, held on the basis of the Has case previously referred to, that there was no interference with his religious rights under the State Constitution because this statute is not one regulating a religion.

It doesn’t require anybody to go to court, to go to church.

It doesn’t prohibit anybody from practicing any other religion and they went through by citing the Has case, the — the various arguments that had previously been carried forth here in Massachusetts to show it’s not religious.

Now, here’s the interesting part of it.

In that case, Your Honor, in the criminal one, this particular manager was charged with violating the law and he was charged under the name of Harold Chernock, doing business as Crown Kosher Market.

Now, you will say, I suppose that that is not an indictment against the corporation itself, but I go a step further.

While that criminal proceeding was being tested in our state courts and going up to our Supreme Court, the corporation brought a bill in equity in our state courts seeking to have the chief of police here, Mr. Gallagher, who has prosecuted these actions, restrained from carrying out prosecutions until the case of Harold Chernock, the manager, were determined in our state court.

And again, if one looks at the — it’s in our supplementary — it’s in the record in the supplementary part, if one looks at the petition which was filed there, it is rather curiously described as the Crown Kosher Super Market, Inc., alias Harold Chernock, doing business as Crown Market.

Now, how we are suddenly to separate these two people and claim that one is an individual and one is a corporation, is a little bit difficult to follow.

The corporation was in the state court.

The manager was in the state court and that both of them, they almost referred to, as the alter ego.

Hugo L. Black:

Are you arguing — are you arguing — are you arguing res judicata or —

Joseph H. Elcock, Jr.:

In effect.

Hugo L. Black:

Right or standing to bring this action?

Joseph H. Elcock, Jr.:

Initially, I’m raising it in the point of view of standing and in a motion to dismiss which was filed, it was raised that these particular parties had no rights — no standing and secondly, in the answer which was filed, it was specifically pointed out to the District Court that these parties had their opportunity in the state court via either the criminal proceeding or the equity proceeding.

And to some extent, Your Honor, it looks very much like res judicata.

I would have difficulty, I suppose, with a strict interpretation of res judicata in the sense that the criminal proceeding per se, appeared to be against Harold Chernock and if we try there to tie him in too closely with the corporation from a legal viewpoint, he may have some out.

Hugo L. Black:

May I suggest, it seems to me like that there — a mere fact that he’s been charged with something criminal, be all the more reason, why he’d hope he has a chance — have a chance to attack its constitutionality.

Joseph H. Elcock, Jr.:

Well, he had a pretty good opportunity, Your Honor —

Hugo L. Black:

It shows that he’s good — greatly affected by it, one way or the other —

Joseph H. Elcock, Jr.:

Yes, it —

Hugo L. Black:

By that statute.

Joseph H. Elcock, Jr.:

It also shows that in a criminal proceeding, he had a right to attack that statute under the Federal Constitution and he failed to do it.

Hugo L. Black:

There you are claiming, he’s a collateral estoppel, I suppose or res judicata.

Joseph H. Elcock, Jr.:

Exactly, one or the other and to the extent that he failed even to argue it, Your Honor and call upon our state court to present it, we would say that when this matter then came to the state court — to the federal court, that as a matter of equitable jurisdiction, they should have declined to exercise that jurisdiction.

William O. Douglas:

But I didn’t think this Fourth — the Fourteenth Amendment question was raised in the — in the state litigation, was it?

Joseph H. Elcock, Jr.:

No, it was not.

And by failing to raise it when he had an opportunity to raise it and come up to this Court by certiorari in a criminal proceeding, we think he has then put himself in a position where he not — cannot claim that there is irreparable harm and that the State — that the federal court should step in.

Now, —

Hugo L. Black:

I would like — I would like to join in the suggestion made by one of my brethren that, if you will, you go ahead into the merits, because I think, you presented this pretty well.

Joseph H. Elcock, Jr.:

I’ll proceed to the merits, Your Honor, but I —

Hugo L. Black:

Yes, but I (Inaudible)

Joseph H. Elcock, Jr.:

I must —

Hugo L. Black:

We’re going to have to reach the merits on some of these cases.

Joseph H. Elcock, Jr.:

Yes, the —

Hugo L. Black:

I would personally, would like to hear you argue the merits.

Joseph H. Elcock, Jr.:

What we are arguing here, almost is the merits, Your Honor, in the sense that Justice Magruder —

Hugo L. Black:

Not to me, because I’d rather think they have standing, I must say, that I can’t see why there wasn’t outstanding.

I just can’t understand it.

Joseph H. Elcock, Jr.:

Well —

Hugo L. Black:

Whatever the merits.

That’s — I’m just speaking for one person.

Joseph H. Elcock, Jr.:

I will proceed Your Honor along these grounds.

Number one, that if it may — if these parties have a right to raise the question, the merits then would be first, the point that I have raised that this is not a religious statute.

As such then, they would have no further standing.

Secondly, to the extent that they are again, proper parties to raise this matter, does it deprive them of equal protection of the laws?

And I think basically there, Your Honor, we are coming to the question of the corporation as to whether, to the Fourteenth Amendment, it has been deprived of its rights under this statute.

Joseph H. Elcock, Jr.:

Now, the objection appears to be that the limitations in this statute are ones which are arbitrary.

As far as we’re able to determine, Your Honor, under the — the Lindsley case, the — the various elements that would have to be satisfied by a complainant would not here, have been properly raised.

They would have to show, as I understand it, that under no set of facts — no reasonable set of facts, could it be said that the legislature had acted in an improper or arbitrary manner.

And I would suggest to you, Your Honor, without going through each and every element in this particular proceeding that the statute itself, is one which now creates a day of rest, whereby, there are certain exceptions to it and each and every exception would fall into one or more of the general type exceptions that would be expected on a day of rest.

Now, in our brief, Your Honor, we have gone to some extent starting at page 66 in analyzing the type exceptions that might be expected in Sunday statutes, whether they’d be in Massachusetts or elsewhere.

And if an examination of those is made, it would appear that here, we have exceptions as I mentioned previously, for allowing the essential industries to be carried on.

We have exceptions that will allow a person to enjoy a day of rest whereby, there can’t be too much noise as a result of these activities.

We have exceptions which will allow entertainment industries to be carried on so that people enjoying their day of rest will not just have to sit home and — and not be able to carry-on those type recreations which would extend to a — a day off as such.

The exceptions per se then, we would say on the face of them, can each and every one of them be explained?

Now, in Judge Magruder’s decision, he has picked out a few of them and pointed to the fact that they are arbitrary.

He has pointed out for example, that you may dig oysters on Sunday — excuse me, may dig clams on Sunday, but you’re not allowed to dredge oysters.

Well, looking at it quickly and say what’s the difference between a clam and an oyster, but again, if you look at the history here in Massachusetts, it becomes quite apparent that people as a matter of pleasure, go down to the beaches on low tides and dig clams.

Hugo L. Black:

Does he indicate there’s no difference between clams and oysters?

Joseph H. Elcock, Jr.:

The judge would [Laughter] — I think he prefers clams.

Hugo L. Black:

Seems to me (Inaudible) [Laughter]

Joseph H. Elcock, Jr.:

As has been pointed out however, by Judge McCarthy in his dissenting opinion, oysters are a matter of dredging.

You can’t just go down to the — the seashore and pick them up.

You have to have heavy equipment, go out on boats and things like that.

So, there is a rational distinction between the two.

I would say then, without going into each one of them, that I would ask the Court to examine the — the various arguments that we have put forth in our brief, concerning the validity or the invalidity of those exceptions.

My brothers, in their brief, have pointed out that the Commonwealth has failed almost entirely to justify these exceptions.

Well, it —

Felix Frankfurter:

You think, you can tell by just looking at them?

Joseph H. Elcock, Jr.:

No, maybe not Your Honor, but, assuming you cannot, the Lindsley case will put the burden upon the complainant and there’s not one iota of evidence here introduced by these complainants, which would have the result of showing that these particular classifications are improper.

And to the extent that the complainant has that burden, he has completely failed to sustain it.

And in his brief, he has suggested that the Commonwealth or the chief of police here has failed to explain these exceptions.

I would say that here, he has completely lost track to the fact that he has the burden of showing the invalidity of this statute.

Now, let me point out to you one other difficulty that arises in — in this connection.

In the complaint, it’s alleged that the statute is — is one of a religious nature.

It’s also urged that the liberty of the customers is interfered with because of that religious aspect and it’s urged lastly and perhaps significantly, that the exceptions in this particular Massachusetts statute are arbitrary.

Joseph H. Elcock, Jr.:

But then Judge Magruder, in his majority opinion, states all the constitutional exceptions that have been well taken.

That would mean, Your Honor, as I read that decision, that the Massachusetts statute is itself per se, perhaps on the face of it, unconstitutional on the ground, at least that the exceptions in it, are arbitrary.

If the exceptions are arbitrary, then what should the good judge have done when a decree was entered?

I think, quite clearly, Your Honors, he would have had to have reached the conclusion that this statute as applied to these complainants was unconstitutional.

Did he?

He did not.

He entered a decree that said, this statute is unconstitutional as to these plaintiffs, if they close on Friday night and Saturday.

I suggest to you, Your Honors, if they opened on Friday night and they opened on Saturday, how were the classifications of the statute be any less arbitrary on Sunday?

To that extent, Your Honors, we would claim that this decree as entered here, certainly, is not one which would be consistent within the findings of fact or with the decree, the determination on the law.

We have had all kinds of difficulties now in the Commonwealth of Massachusetts trying to determine the validity of these statutes.

Now that point was called to the attention of the judge after he entered the decree.

We had quite a discussion on the form of it.

As a result of the decree, we filed a motion for rehearing and one of the grounds we raised is that the decree itself, was inconsistent with the finding of the judge and as a result of that motion, the judge came back again with a — another determination that we had misread his decision.

Well, maybe we did misread it, perhaps, we don’t understand it.

But as far as the Commonwealth of Massachusetts is concerned, if our Sunday Laws are to be thrown out completely, we ought to know it.

We ought to know what the ground is because basically here, this is a Fourteenth Amendment problem.

The real question is this.

Can the Commonwealth of Massachusetts pick one day in seven and set it aside as a day of rest?

If they can, then the Commonwealth of Massachusetts would desire to do so.

If they can do it by the vehicle which they have here before them, they would desire to do so.

But if they cannot and one day in seven cannot be picked out and the Fourteenth Amendment would prohibit that from being done, it’s about time we found out about it.

As I understand from reading the Constitution and the cases, there is nothing in the Fourteenth Amendment that would prohibit the Commonwealth of Massachusetts from picking out one day in seven if they so desire, whether it be Sunday, Saturday or any other day in the week.

And if they once go in that assumption then basically, we have a right to enact a statute such as we have here, provided of course, that we do not violate any other provisions.

If we have violated other provisions of the Constitution, what are they?

I say that from this decision of Judge Magruder, we cannot tell what actually was his determination?

We would say, if it’s on a question of the statute being arbitrary that he has gone into the minds of the legislature where the courts should not go.

He has gone into a realm where the courts themselves from time immemorial, have not tread.

To that extent, Your Honor, we would say on the ground, he should not have thrown out this Sunday statute.

If it is predicated upon the fact that this is a religious statute, then he is gone in the face of almost every judicial determination that has been made in all of the States of the Union and in this Court.

To that extent, Your Honors, we have gathered together in our brief numerous decisions whereby, this Court has passed upon the merit.

Joseph H. Elcock, Jr.:

It —

Hugo L. Black:

How many cases have we —

Joseph H. Elcock, Jr.:

There were approximately 10, Your Honor that have been decided in this Court either on the face of the — on an argument or as a result of dismissing because there was a failure to state a — a constitutional question.

The basic ones and some of the earlier ones, Your Honor, would be that Hennington v. Georgia, where this very problem came up, where they cited — this Court, Your Honor, cited the Has case, the Commonwealth of Massachusetts case, saying that this is a lay statute.

To that extent, the — this Court has again said, the mere fact that there may be some religious connotations in connection with it and does not in and of itself, make it invalid.

And where this Court has said, they should not go behind the statute into the reasoning of the Court, when — the reasoning of the legislature.

When this most recently came up here on that Freidman case a few years back, this Court dismissed it again on the ground that no Constitutional question was raised and Judge Magruder, in his decision, has this to say about it.

The New York statute had no religious connotations.

I’d suggest Your Honors, if you look at that statute, if you look at the history of that New York statute, such a conclusion could not be reached.

We would go one step further.

This matter has been raised in the courts of all the States of the Union, I shouldn’t say all of them and I’m not quite sure, say of Alaska, but up — up until the — the recent two admissions, all of the States of the Union had passed upon this particular matter and I would point out to you that there are a dozen or more perhaps I’m a little high on that, it’s set forth here in the brief where, for one reason or another, a Sunday statute was turned down.

Ordinarily, they would turn down on basis of classification.

If they were turned down on basis of a classification, it would not necessarily be any determination as far as this particular Court is concerned.

As far as religion is concerned, Your Honor, we had one early case in California that’s In Re Newman, which determined that this particular statute or a statute of this nature would have a religious origin.

What happened?

It was overturned two or three years later in the Andrews case.

So on the one other determination on a religious ground where a court found that a Sunday closing law had a religious connotation, they reversed themselves.

Where from there?

Crown Kosher, it stands alone.

It’s the only determination that we have to the effect that a Sunday Law per se, is a religious one.

It is a unique decision.

As such, it violates every concept that I understand from having read the decisions of the Supreme Court and from having examined the cases in the other courts.

If it is to stand, then this Court will in effect, be overruling a tremendous amount of judicial determination from the early times in this Court and from the early times in the courts of the various states.

And I think before you do that, grave thoughts should be given to the question of whether actually, this is a religious statute or whether it is one which is in effect, a lay regulation.

One, which allows the working man to have one day off and I would refer to the amicus briefs filed in this matter.

Amicus briefs pointing out that from the point of view of labor, it’s highly desirable.

If you look at the Friedman case, Your Honor, which was up here before, there’s an amicus brief in –in — there are the statements in the record there, Your Honors, to the effect that the kosher butchers, themselves, participated in favor of the validity of the law on the ground that it gave them one day — one additional day of rest.

Hugo L. Black:

May I ask you this, about that, since you’re discussing that case.

I — what significance it has, I do not know, but I have the record before me in which they cited it being enforced at that time.

The section which says it is sufficient defense for a prosecution for work or labor on the first day of the week that the defendant uniformly keeps another day of the week as holy time.

Joseph H. Elcock, Jr.:

Yes, Your Honor.

Hugo L. Black:

Is there any such provision as that in your statute?

Joseph H. Elcock, Jr.:

Yes, there is.

Hugo L. Black:

You have the same kind?

Joseph H. Elcock, Jr.:

Almost the same, Your Honor, but I point this out.

Hugo L. Black:

Have you cited it?

Joseph H. Elcock, Jr.:

Oh, yes.

This is in section six of our statute, Your Honor, which appears on — starting on page 84 and on page 87 thereof — thereof.

Section 5, in effect, is the prohibition.

It shall prohibit the doing of work and the keeping open the shop on the Lords day.

And then section six, starting on page 84, says there are certain exceptions to it.

It shall not prohibit and it shall not prohibit among other things, the selling or delivery of kosher meat by any person who according to his religious belief, observes Saturday as the Lords day by closing its place of business during the day until 6 o’clock in the afternoon or the keeping open of a shop on the Lords day for the sale of kosher meat between the hours of 6 o’clock and 10 o’clock in the morning, that’s one.

Secondly, right below, nor shall it prohibit the performing of secular business and labor on the Lords day by any person who conscientiously believes the seventh day of the week ought to be observed as the Sabbath and acts to refrain from secular business and labor on that day, if he disturbs no other person nearby.

So that, to the extent that there may have been some inconvenience to members of the Jewish faith who in good faith practice their religion and observe Saturday there are special provisions right in —

Hugo L. Black:

Why was — why was this man prosecuted? I don’t quite understand.

Joseph H. Elcock, Jr.:

For this reason, Your Honor.

Instead of complying with this section which says he may stay open until noon time to sell kosher meats, he stayed open and sold everything.

I jumped over, Your Honor, a little bit on the facts and you put your finger right on one of the problems.

This is a Kosher Super Market and if you look at the petition, it says their selling only kosher meats and yet, if you look at the facts and the determination by Judge Magruder in his decision which will be a finding on the facts, it appears that they sold kosher meats, kosher foods of all kinds and they sold other products.

Hugo L. Black:

Was he charged in this — in this case against him, was he charged for selling kosher meats on a Sabbath?

Joseph H. Elcock, Jr.:

No, Your Honor.

He was charged with keeping open his shop on the Lords day and it was held that a — a limitation whereby you may sell kosher meat on Sunday during certain hours does not per se, allow you to stay open for the entire day and sell everything else and that’s in effect, what the — the problem was.

Now, there is a question here, Your Honor, that’s been argued somewhat in the briefs concerning this second problem.

If one observes Saturday, can he stay open on Sunday?

If you note the last part there, “If he disturbs no other person, he may keep open his business,” it does not create an exception on behalf of a “keeping open your shop as such.” You can’t just open indiscriminately.

That same determination, Your Honor, has been made in New York, so that both Massachusetts and New York had the same kind of limitation in the sense that you cannot indiscriminately make sales.

Now, there have been a few cases in Massachusetts where that problem was again raised and it was pointed out that they were merely selling to members of the Jewish faith.

Well again, you cannot keep open your shop for that purpose and — and just allow the general public to come in.

If they desire to prevail at all, it would be under the first part that they initially described, not the keeping open of shop and so forth, but that the selling or delivery of kosher meat.

To that expense — to that extent, Your Honors, there is an exception here which I have argued previously, I argue again to you now, that that exception was not even raised by these defendants — these complainants.

Joseph H. Elcock, Jr.:

To that extent, Your Honor, they are proceeding under the other section that they want to keep open their shop on the Lords day and that they are limited by the statute so that they cannot keep it open as such.

All they can do is sell kosher meats.

Hugo L. Black:

What effect would this have on the Seventh-Day Adventist, this particular section?

Joseph H. Elcock, Jr.:

Well, we would say that the Seventh-Day Adventist may carry-on his activities on Sunday provided he does not disturb someone else, but it has been interpreted in Massachusetts that carrying-on your business does not allow you to keep open your shop.

Our section 5, Your Honor, prohibits the doing of business and the keeping open your shop and the exceptions provide that if you observe the seventh day rather than Sunday, you may be excused from the first of those, but not the second.

You may carry-on your business, but if your business is one of opening a shop to the general public, that can’t be done.

We would say that —

Hugo L. Black:

Even if all they were selling were some, take the kosher meat, all they were selling was kosher meat?

Joseph H. Elcock, Jr.:

If all they were selling would — was kosher meat, Your Honor, a sale of kosher meat, provided it’s not under an open shop, maybe carried-on under this statute.

The selling and delivering —

Hugo L. Black:

How should a merchant make it except from an open?

I don’t — know their significant, but how can he make it except on the store?

Joseph H. Elcock, Jr.:

Well, let us say, Your Honor that it would be highly desirable to have the store open for the purposes of selling kosher meat.

That it is open until noon time.

Is it unconstitutional to require that they close after —

Hugo L. Black:

Your answer then is that he can serve kosher meat up to noon but not after that.

Joseph H. Elcock, Jr.:

Oh, not quite.

Hugo L. Black:

Isn’t it what it’s for?

Joseph H. Elcock, Jr.:

Yes, that’s right in one sense, Your Honor.

He may sell kosher meat from an open shop up to noon time, but if he’s not using his open shop, the section just ahead of it says he may sell kosher meat all day long.

And I suggest to Your Honors that none of the cases cited by my brother, raise any such point as I’m urging upon you now as far as this Sabbatarian exception is concerned.

This has never been interpreted.

Every time it comes up, every case is one where they have kept open their shop indiscriminately.

They say that they sell only to Jewish people.

Only the Jewish people would be coming in there and that kind of thing but if, the allegation is that they’re keeping open shop, Massachusetts says you can’t do that.

You’d have to have a more limited right of sale.

Charles E. Whittaker:

Well, you — do you mean by that, he’s going to keep the whole shop open if you sell other things but it’s just kosher meat you can sell for the whole day?

Joseph H. Elcock, Jr.:

No, Your Honor.

No, I do not understand the Massachusetts statute as allowing a shop to be kept open all day for the purpose of selling kosher meat.

It cannot be done.

Joseph H. Elcock, Jr.:

They may stay open under our statute until noon time.

But I suggest that if the Court looks at the sentence just ahead of it, if they don’t keep open their shop and they have a private sale, Your Honor, where no other parties are disrupted, then the statute specifically says that you can sell kosher meat and deliver it on the Sabbath if you close up — I mean, on Sunday if you close up on the prior Saturday.

Charles E. Whittaker:

That would be beyond and outside of the market.

Joseph H. Elcock, Jr.:

Yes, Your Honor.

You can have an open market.

Felix Frankfurter:

Under the Sabbatarian exception, can you sell watermelons on Sunday?

Can Kosher shops sell — sell watermelons on a Sunday morning?

Joseph H. Elcock, Jr.:

I would say no.

This particular —

Felix Frankfurter:

Because watermelons are not kosher or grapes either.

Joseph H. Elcock, Jr.:

Well now, if you read some of the arguments [Laughter] — if you read some of the arguments Your Honor, of Mr. Chernock, when he was on the stand, he took the position that everything he sold was kosher and if you look at it again, we asked —

Felix Frankfurter:

You think as an extension he might have been right?

Joseph H. Elcock, Jr.:

Yes, in the sense that the Jewish religion would not object to the purchase of some of the items which he called kosher.

And if they didn’t actually regulate them and he sold them, it was his contention that they were kosher.

But it turned out, Your Honor, that he was including such things as a — products of the National Biscuit Company and all that kind of thing, of which would not violate the tenants of the — the Jewish religion and we didn’t so contend.

But what we did say is that, even if you would classify this kosher, they are, in effect, going way beyond the — the concept here in the statute where you opened for purposes of allowing the sale of kosher meat.

Felix Frankfurter:

If he sold papers for telegraphs, the supporting paper it would be kosher, wouldn’t it?

Joseph H. Elcock, Jr.:

I would say that it would not come up, Your Honor, for this reason.

There are other sections in the statute that will allow a man to sell papers.

We have all kinds of sections where you may buy ice cream and things like that if you’re out, where you may buy papers, you may buy tobacco.

You can get all kinds of things but each, in turn, would have some connection either with necessity or with enjoyment for the day or something of that sort.

To the extent —

Felix Frankfurter:

Or something inscrutable that we lawyers — we judges couldn’t tell merely by reading it.

Joseph H. Elcock, Jr.:

I think you get the perfect idea, but I think the question that was asked previously, is could you tell on all of them?

And I would say that some of them would demand a knowledge of the particular industry and thus —

Felix Frankfurter:

And there, you put the burden on the other fellow — and then put the —

Joseph H. Elcock, Jr.:

I think this Court has put the burden on the other —

Felix Frankfurter:

But I’d be — I mean, your argument would —

Joseph H. Elcock, Jr.:

Yes, Your Honor.

Thank you.

Earl Warren:

Mr. Ehrmann.

Herbert B. Ehrmann:

Mr. Chief Justice and may it please the Court.

At the outset, I would say that I can well understand the difficulty that some of the Justices are having in understanding the chapter 136, insofar as it relates to people who keep the Sabbath day on the — on Saturday.

There was trouble in the court — in the three-judge court on that.

The reason for that is not that these — these portions of this law have not been adequately interpreted.

They have been interpreted, but they have been interpreted by our Supreme Court in such a strange way that is hard to believe it.

Now, if Your Honors will turn to the Act which appears in Mr. Elcock’s brief, section 5 is the section which forbids the keeping open of a shop or the doing of any labor business or works except works of necessity and charity, that’s on page 84.

Then, you turn to page 87 and you see where the first complete paragraph begins and that is the language which says, “Nor shall it prohibit the performing of secular business and labor on the Lords day,” I call your attention to secular business and labor on the Lords day, by any person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath and actually refrains from secular business and labor on that day.

Now, Mr. Chernock urged that in his exceptions to our Supreme Court and our Supreme Court ruled on the basis of Commonwealth against Has, that that language did not permit the opening of a shop.

It was not included in secular business and labor.

They said, relying on Commonwealth against Has, that he could not maintain his shop under that, no matter whether he did or did not observe the seventh day of the week as the Sabbath.

Now, you move just above that and you’ll find a more recent exception which says, “Nor shall it forbid the keeping open of his shop on the Lords day for the sale of kosher meat between the hours of 6 o’clock and 10 o’clock in the fore noon, not noon, 10 o’clock in the fore noon.”

I will not at this point, comment upon the practical effect of that section.

The three-judge majority opinion found that that was wholly impracticable and impossible really, for any business to operate on.

But, you will see that the keeping open his shop on the Lords day for the sale of kosher meat between the hours of 6 o’clock and 10 o’clock and the fore noon, is the section under which Mr. Chernock was convicted.

So that, I don’t understand what there is to be interpreted.

He has been convicted under that clause.

He was not allowed to escape under the next section and not only does Commonwealth against Chernock hold this, but my brother and friend here apparently, has forgotten the case of Commonwealth against Starr, which is cited on our brief, because that very neatly disposes of nearly all of his contentions that there were still something to be interpreted in that section.

Commonwealth against Starr was a case in which a — a rabbi kept his house open for the sale only of kosher products to members of his congregation.

He closed on Saturday.

He sold only to members of his congregation who also observed Saturday as the Sabbath and the Supreme Court of Massachusetts said that didn’t make any difference.

He kept open his shop.

That was enough.

So that, the suggestion that it was because Mr. Chernock sold to other people or because he sold things that were not strictly kosher, under our decisions, has no relevance.

Here was a man who sold only to members of his own congregation.

He was a rabbi.

He was authorized to call the food kosher, which he did and see to it that his congregation bought only that type of food.

Then there was another Jewish merchant or manufacturer who tried to avoid the impact of this statute by not selling anybody.

He had a little shop for 8 or 10 people, that’s Commonwealth versus Kershaw.

It is also on our brief.

Herbert B. Ehrmann:

He’d did deem open it, he just left the door open for 8 or 10 employees to come into the shop and they closed the door and locked it, so they couldn’t disturb anybody.

They were all Jewish.

They all observed the — the seventh day of the week as a Sabbath.

He was convicted.

He kept the shop and it didn’t make any difference whether he opened it or whether he didn’t open it or whether he disturbed anybody or whether he didn’t disturb anybody or whether he sold anything to anybody or not.

He kept open his shop and that’s been the interpretation of that and there’s no doubt about it.

We’ve cited the cases on our brief.

I have mentioned only a few involving Jewish merchants.

The foundation case is Commonwealth versus Has that started all this trouble.

He was a Seventh-Day Adventist.

Now, I’m saying this because I feel that at the outset we should understand that there just isn’t any question about opening a shop.

Under any of these conditions, it’s forbidden.

Even under that six to ten statute, they can’t sell anything but meat — kosher meat, nothing else and then they have to quit at 10 o’clock.

It would perhaps be important at this stage to call attention to the realities of this situation.

Some of the Justices mentioned it at the start of — of Mr. Elcock’s argument.

We are not talking about a violation of the symbols of religion as some of the very important cases that have come before you have had.

We are talking about hardship, about serious interference with the liberty of people.

There are findings of fact in this case concerning the obligations of Orthodox use to observe the Sabbath.

They may not travel.

They may not ride in automobiles.

They may not even light lights.

They had to do their cooking on Friday so that they don’t have to cook on Saturday, on the Sabbath.

The Sabbath evening is a joyous occasion where they have the best meal of the week.

Saturday, they go to the synagogue and Saturday afternoon, they also have a celebration.

The family all get-together and celebrate the Sabbath.

They’re not allowed to buy anything on the Sabbath.

Now, we have this statute that says that there can be no store that sells food that their — the only kind of food that under their religion, if they live up to it, they may eat, must be closed on Sunday.

The effect of that is if it’s enforced, is that in this particular case, the Crown Kosher Super Market would have to go out of business.

William O. Douglas:

Do you think the case would be different if the market was run by an atheist?

Herbert B. Ehrmann:

Under one — under one of our principles, it would be — it would be because the exception in favor of those who conscientiously observed the seventh day as the Sabbath on the basis of one of the interferences with religion to which I will advert that that would be essential.

Herbert B. Ehrmann:

Now, on the question of whether or not, the — the law takes property without due process of law or whether it is — denies equal protection, it’s possible that that would make a — would not make a difference.

I’ll put it perhaps in this — in this vice.

Let us for the moment, accept my brother’s statement which we cannot accept as I will hope to show you in a few minutes, that this is a day of rest statute, a universal day of rest.

Not — not just the one day in a week but that everybody has to rest on the same day and let us further assume which I cannot at this time concede, that it is within the police power of the State to establish such — such a law.

And let us further assume that the Massachusetts court in Commonwealth against Has and indeed, many other — courts are right, in saying that they selected Sunday, my brother made this argument, as the day of rest, because the majority of people already observed Sunday as our Court in Commonwealth versus Has said, “Because it is a day of peculiar sanctity to the majority of people who are Christians.”

Do they not, when they do that, make it easy for those who are already observing Sunday because they already refrain from work, they already regard the day as sacred?

So that, they lose only one day a week, whereas if that law is enforced without an exception in favor of those who observe another day as the Sabbath, they lose two days a week.

They lose 100 days during the year, instead of 50 days in a year or 52 days in a year.

And that Mr. Justice Douglas, is the best answer, I think at the moment, I can give you that — that that does play a vital part and that if was a question of an atheist under certain branch of this argument, it would not be unconstitutional as against him — I mean, as — as applied — but as applied against somebody who observed the seventh day as the Sabbath, it is a discrimination.

It is a preference of one religion over another.

It is a denial of — of the equal protection of the laws.

That point incidentally, was made by a number of our middle-western courts.

I know their statues are different.

I think those statutes while I haven’t read them, but from the decision, they seem to be just simply day of rest statutes and that’s all.

They had these exceptions in favor of those who observed another day as the Sabbath and those exceptions were attacked.

In Ohio, I think, Indiana and Kentucky as unconstitutional.

The judge in — in the Indiana case, Johns versus the State, which is cited on our brief, said this in sustaining the Constitutionality of that exception.

“Without the proviso which is said to breakdown the law, a large number of citizens would be compelled to lose two days of labor — two days of labor, one day because of their conscientious convictions of religious duty and one by the — the command of the municipal law.

We know that there are sects of Christians who conscientiously believe the seventh day to be divinely ordained Sabbath.

We know too, that there is a great people who, for many centuries and through relentless persecution interpret the files, had flung without unswerving fidelity to the faith of their fathers that the seventh day is the true Sabbath.

If the proviso will wrench from the statute, these classes of citizens will be compelled in obedience to their religious convictions, to rest from the labor on the seventh and by the law, also compelled to refrain from common labor on the first day of the week.”

And the judge said that, so far as he was concerned, he would not enforce that law against those who observe the seventh day as the Sabbath.

Now —

Hugo L. Black:

May I ask you a question about —

Herbert B. Ehrmann:

Pardon?

Hugo L. Black:

In answering Justice Douglas, you made one statement that I want to have you see if I understood it.

You said, assuming that a state, I thought you said, assuming that a state can within its police power, fix any day of the week as a day of rest, which I do not believe I understand —

Herbert B. Ehrmann:

Well, I said we will not concede.

I think that’s a — that’s a debate of the matter meant by that —

And we won’t have to reach that in this case, I don’t think.

Hugo L. Black:

Well, in a way you might mention out if — if not one day, how — how another, it might conflict with somebody’s religion.

Herbert B. Ehrmann:

Well, if there were an exception in the statute for those who observe another day as a Sabbath that aspect of it would be taken cared of.

Hugo L. Black:

You do take the position do you that the State is without power to fix a day of rest merely because it wants to fix a day of rest?

Herbert B. Ehrmann:

Well, I do not have to go that far.

I’m dealing with the Massachusetts statute and the Massachusetts statute Mr. Justice, is a — as we will see, is a religious statute.

Now, whether or not, just a general — there’s a general power to sue — to appropriate one day not of rest, for most of these states already have a day of rest in the seven, but a universal day of rest on which everybody has to stop at the same time.

Hugo L. Black:

Well, do you think it would have to go that far in order to have one?

Herbert B. Ehrmann:

Well, I — I don’t know of any — any data or sociological information or anything that would lead us in a modern world to — to be so sure that there is such a power.

That is something of course, which the Justices here may wrestle with.

I don’t think you’ll have to do it in this case.

I’d like to confine my argument to the Massachusetts statute in the facts of this particular case which is my duty and I think it’s —

Hugo L. Black:

On the —

Herbert B. Ehrmann:

— all I should do.

Hugo L. Black:

You are arguing that on — wholly on the assumption that it is a religious statute.

Herbert B. Ehrmann:

That it is a — that it is a —

Hugo L. Black:

And I understand the other side —

Herbert B. Ehrmann:

First —

Hugo L. Black:

I understand the other side to argue that the Supreme Court has said it is not.

Herbert B. Ehrmann:

Well, may I come to that now.

I didn’t actually finish what I was saying, but —

Hugo L. Black:

Well, I beg your pardon.

Herbert B. Ehrmann:

Mr. Justice Douglas asked me the question, what I was coming to and I’ll dispose of that in — in a half a minute, was that the Orthodox community and the store in this case are faced with the dilemma and that dilemma is that either they — if the — if the law is enforced, either they give up a second day in a year from secular pursuits or else, they give up their own belief in the Sabbath as the seventh day.

That is the dilemma with which they’re faced and that is a real dilemma and a real hardship and over and above that, is the consideration that was mentioned earlier in my brother’s argument, namely that there is the compulsion both economic and social, in this Sunday Closing Law to make people abandon their own religion.

And that comes under Mr. Justice Black’s own definition in the — in the celebrated case involving the support of school buses, namely that not only as I will show does this statute prefer one religion over another and aid one religion at the expense of another, but influences people to give up their own faith.

Charles E. Whittaker:

Do you — do you think that the Massachusetts’ delegations to the constitutional conventions believed that this statute was a law respecting an establishment of religion within the meaning of (Inaudible)

Herbert B. Ehrmann:

Well, may I now, advert to that.

I think that that really — we’re getting back down to the — to the heart of this question.

In order to ascertain what this Massachusetts law really is, we should start with what it started with and then end with what it is now and let us see what has happened.

First, I would like to have you look at this statute through the eyes of our Supreme Judicial Court back in 1816 and then I would like to take you to the last decided case before the Chernock case.

This early case was the case of Pearce against Atwood, where a justice of the peace arrested a traveler on a large day and the court there said it would certainly seem extraordinary that a statute enacted for the sole object of ensuring reverence and respect for one day of the week, in order that religious exercises should be performed without interruption from common and secular employments, should authorize acts which from their necessary publicity, would be likely to cause more disturbance to devout people and all the irregularities intended to be cured and then the court went on to say this.

Herbert B. Ehrmann:

It is true from the fourth command in the Decalogue, it may be inferred that one day in seven was, according to the divine will to be set apart as a day of rest from labor, but none will contend that the day therein sanctified, is the day which Christians are bound to keep as holy time or that any of the rigid laws of Moses relative to the observance of that day are now enforced.

It is enough to observe that by universal consent of Christians, another holy day has been substituted.

That was our Court in 1816.

Now, in Commonwealth versus McCarthy in 1923, our Supreme Court and that was the last case that characterized our Sunday Closing Law prior to the Chernock conviction.

The court there, and this was an odd case too, because if you examine the statute very carefully, you will see that while at certain hours, bread may be sold, this baker was charged with delivering bread to the — to common victuallers and the Court held that although he could bake bread, and he could sell bread at certain hours, he couldn’t deliver it to his customers and this was the decision.

The delivery of bread outside the premises of the baker on the Lords day is not a work of necessity within the meaning of the Lords day statute.

The statute prohibiting the performance of labor, business or work except works of necessity and charity on Sunday was enacted to secure respect and reverence for the Lords day.

And then, the Court goes on to quote with approval, citing the language and adopting it of Davis against Summerville which was decided three years after the case of Commonwealth against Has that my brother adverted to.

I’ll speak about that decision in a moment.

It was characterized by Judge Magruder as an ad hoc decision and I think that this Court will agree with Judge Magruder’s characterization of that decision, but, this was three years after that decision and it was adopted in 1923.

The statute making it unlawful and criminal to travel on the Lords day except from necessity and charity, has retained its place in our statute books from the earliest time — times in the history of the State.

This also was a curious offense.

The defendant in this case travelled on the Lords day and at that time, the statute included that.

They hadn’t eliminated it and he was accused of violating the Lords day statute, because he had gone to a funeral which was regarded as a journey of necessity.

But in coming home from the funeral, he stopped to call on a friend and they said he — he had to come straight home because otherwise, it was a violation of the Lords day statute and the conviction was upheld.

So, you — the Court went on to say in upholding that conviction, 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 to enforce without any substantial modification to the present time.

Whatever inconveniences might result at the present day from the literal and general enforcement of the Lords day Act and whatever hard cases may arise — may have arisen under it, it is still the law of the land to be judicially interpreted and administered according to its true intent and meaning and upon the same rules as would govern us in the interpretation of any other statute.

Earl Warren:

What year was that, Mr. Ehrmann?

Herbert B. Ehrmann:

That case was decided three years after the — the Commonwealth against Has.

It was decided 1880, but adopted in 1923 by Commonwealth against McCarthy.

Hugo L. Black:

Would your argument be different if — if there was nothing here shown, nothing in the cases that showed the motive or the purpose of the passing of the Act?

And do we have a right —

Herbert B. Ehrmann:

Well —

Hugo L. Black:

And do we have a right to consider the motive and purpose of the legislature advisement?

Herbert B. Ehrmann:

I don’t suppose that if it’s a motive that isn’t exhibited in the Act itself, that it would be clear that you have a right to, although this Court has on occasion and very recently, has invalidated an act which was within the power to do but looked at the motive to see the effects of the act to interpret the motive which was to eliminate colored people from a certain precinct.

Now, in this case, we were not confronted with that.

Felix Frankfurter:

That was arithmetic — that wasn’t a motive?

Herbert B. Ehrmann:

It was arithmetic [Attempt to Laughter]

Hugo L. Black:

Suppose they would have pass — suppose it could be held unconstitutional and they passed one the next week and said this is wholly because we desire to have a day of rest and put it either on a Sunday or Saturday.

Herbert B. Ehrmann:

Well, if — if a properly drawn act were — were passed, I would suppose then that it would have to be examined in the light of all the circumstances.

I — I find it difficult if Your Honor please, to give any intelligent opinion of an act which I haven’t read, the history of which I know nothing about or the purposes of which I —

Hugo L. Black:

I’m not talking about an act on its face.

Herbert B. Ehrmann:

In this case, this act on its face is an act to compel observance of Saturday as the Lords day.

I was coming to that in a moment because —

Hugo L. Black:

We have to consider, do we not, what is the effect of what we hold with reference to the power of a state?

Herbert B. Ehrmann:

Well, that is correct.

Hugo L. Black:

In the field.

Herbert B. Ehrmann:

That is correct, but if we have an act which is plainly an act to compel observance of the Lords day for religious reasons, then I would suppose that the labors of this Court would be ended so far as this case is concerned.

Hugo L. Black:

And I understand that argument.

Herbert B. Ehrmann:

Yes.

Hugo L. Black:

I’m not saying I disagree with it.

All I’m asking is, would we have a different case —

Herbert B. Ehrmann:

You would have a —

Hugo L. Black:

— if they did not show what the purpose was.

Herbert B. Ehrmann:

I would — I would say that you would have entirely different considerations.

You might come to the same conclusion, but you would have different considerations.

William O. Douglas:

On — on the equal protection, I would think that the argument would be the same if you’re — if you’re relying on the equal protection.

Herbert B. Ehrmann:

That’s correct.

The — if you find that this is a statute to enforce observance of the Lords day, that would be the end of this case because under all of the decisions of this Court, if a — if a law is passed in furtherance of one religion as against another or to influence people with regard to their religion to desert it that that Act would be unconstitutional and every court that I have seen that’s decided on this have held — has held that if the purpose were religious purposes, the statute would be unconstitutional.

And the New York court has also, recited on our brief, has held definitely that it could not be supported on a religious basis.

I would like to call Your Honors’ attention to the statute itself.

I’ve been doing something that I shouldn’t do.

I’ve been talking about the statute.

I’ve been quoting what our judges have said about the statute, but the proper study of a statute is the statute.

And if you would look at this statute, I think that you are in for an experience.

Our three-judge court, at least two of the judges were astonished at a statute today reading as this one has.

Not only does it continue to use such phrases even in modern amendments as that — this entertainment may be permitted if it is in keeping with the character of the day and the due observance thereof.

Just what that means with respect to a day of rest, I don’t know, but that is part of the language.

They used the word, “secular” constantly to distinguish Sunday from other days in the week.

Herbert B. Ehrmann:

They have permitted certain activities.

My brother here has mentioned the fact that there have been these added exceptions.

If the statute was originally a statute to enforce a day of rest, to a — originally, a — a statute to enforce observance of the Lords day, it’s difficult to see how cutting it down and allowing more things to be done so as to increase the number of things which may be done seven days a week instead of six days a week, indicates a purpose to have a day of rest and that’s all these exceptions have done.

They’ve increased the number of things that can be done seven days a week, instead of six and that according to my brother here, is suppose to indicate that the statute has now been transformed from a religious statute into a day of rest.

The very hour —

Earl Warren:

He couples — he couples that with the interpretation of the Supreme Court, doesn’t he?

Herbert B. Ehrmann:

I’m coming to that.

I —

Earl Warren:

Go right ahead.

Herbert B. Ehrmann:

That — that —

Earl Warren:

Don’t let me interrupt you.

Herbert B. Ehrmann:

Yes.

Commonwealth against Has came in 1877 after a stream of decisions holding that this statute was a religious statute.

Commonwealth against Has was the first case in which the question of — of constitutionality under the religious provisions of the — of the Massachusetts constitution were raised.

Thereupon, the court out of a clear sky without any analysis of the statute at all, without any reference to the many cases that have gone before stating that it was to ensure reverence of — of the Lords day, proceeded to say that it was merely a civil regulation providing for a fixed period of rest in the business and ordinary evocations and the amusements of the community.

Incidentally, that reference to amusements of the community is also a little strange because Mr. Elcock has now argued that it is not only transited from a religious statute to a day of rest statute that has now become an amusement statute.

That it is — its purpose is now to allow people to enjoy themselves on Sunday and go to the ballgame and go fishing and digging clams.

Now, the hours — I would like to read to the Court some of the hours of the exceptions which are so clearly hours to protect church worship.

Now, there’s no reason why there shouldn’t be protection of church worship, but it indicates an attempt to preserve the character, the original character of the statute even while the exceptions are being made.

For instance, outdoor lawn bowling, golf driving ranges and so forth, are — are permitted.

Amusement parks and beaches, license to operate bowling alleys, private industrial trade expositions, participation in or witnessing athletic sports or games and there is no one of these that’s allowed to be given before 1 o’clock in the afternoon.

Why?

If it’s a day of rest, why — why can’t they do that before 1 o’clock in the afternoon or if it’s just to promote amusements? Incidentally, I have a difficulty there also, a logical difficulty, by allowing people to — to pursue amusements on Sunday that they’ve already been pursuing for six days a week, does not seem to me to constitute Sunday a day to pursue amusements.

But if it is a day to pursue amusements, then I think perhaps, we ought to reexamine the entire basis for the exercise of police power which makes people stay away from secular pursuits 52 days a year and — and people who believe in the seventh day, 104 days a year, as it would — cannot be weighed against the interference with liberty and property which this Act creates.

Now, here are – here are a few more that are astounding.

The retail sale of bread is allowed between 10:00 a.m. and — and is allowed before 10:00 a.m. and between 4:00 p.m. and 6:30 p.m.

Transportation of general commodities by motor truck or trailer before 8:00 a.m. and after 8:00 p.m., that’s interstate trucks.

Now, one would suppose that it would disturb rest much more to have these trucks rumble around in the morning than during the day, but this is the provision.

Here again, I say it — it’s to quiet down things before church services on Sunday.

Transportation of petroleum products from motor truck are permitted only before 6:00 a.m. and after 10:00 p.m., the selling of bake — sale of bakery products by bakers before 10:00 a.m. and between 4:00 p.m. and 6:30 p.m., the sale of kosher meat by the observers of the seventh day as the Sabbath, between 6:00 a.m. and 10:00 a.m.

Herbert B. Ehrmann:

Now, it is difficult to understand what logical connection that would have with either a day of rest or amusement.

One would suppose that the opening of a shop so early in the morning, if it ever was opened early and if any customers would ever come at that hour, would be disturbing to rest, rather than otherwise.

And certainly, if it’s a day of amusement for people to come in and buy some salami for a picnic, would aid in that pursuit.

No, these — these hours that I have here — or the bootblack has to stop at 11:00 in the morning.

Now, as I said, this — if Your Honors would — will take the — the hard task of reading the statute, I am confident that you’ll come to the same conclusion that Judges Magruder and Woodbury came through that it’s an unbelievable hodgepodge that there’s no rhyme or reason to any logical purpose that this Act is supposed to serve to have this sort of thing.

You will find on page — pages 49, 50 and 51, we have listed dozens of things that are permitted, some of which were absolutely without any explanation.

My brother has tried to hazard some, taking Judge McCarthy’s view that digging of clams is an amusement and not work as one who’s dug clams, I can testify it’s work.

However, the fact of the matter is that Judge McCarthy wasn’t quite right on his — his — on the culture of our country.

The fact of the matter is that clams one of the big commercial industries at my State.

You drive along in the summer time there you can’t throw a rock without hitting the shoreline, a — a place that would sell steamed clams to the passerby.

It is true that it can be done by — by an amateur such as myself occasionally, but it’s a commercial operation and sea clams are dredged just as oysters are dredged and not only are they dredged but they’re seeded and this is a big business in Massachusetts, the seeding of clams.

So that this attempt to explain that the digging of clams is alright because of some idea that people — individual people like to do it, comes back to an a — the only agreement that I know between Mr. Elcock and myself on some of the fundamentals of this case.

John M. Harlan II:

But on your establishment of religious — religious points, don’t you ultimately, have to face up to the question that Justice Black put to you, namely whether the State has got power to pass a day of rest statute? Because surely, our duty in construing a state statute, granted everything that you say, is to save this statute if we can do it and therefore, it seems to me, you’ll have to face up to that basic question as to whether the State has got the — has got the right to prescribe a day of rest.

Herbert B. Ehrmann:

Well, I suppose we will run into that.

John M. Harlan II:

I don’t see how you can avoid it.

Herbert B. Ehrmann:

We will run into that, I think, Mr. Justice, if you do not find that it is a — statute to enforce a religious holiday.

If you find that, you’ll be through.

Now, if you find that it is a day of rest statute, I cannot agree more heartily with you.

You then go through it seems to me, the process which this Court has labored with so often of weighing the damage that is done, the interference with the liberties, the interference with business, with the purpose for which the statute is passed.

John M. Harlan II:

That only comes on your second point.

Herbert B. Ehrmann:

That comes only on the second, that’s correct.

John M. Harlan II:

Not on the establishment of religion?

Herbert B. Ehrmann:

No, I shouldn’t think so.

John M. Harlan II:

No.

Hugo L. Black:

And on that point —

Herbert B. Ehrmann:

I think —

Hugo L. Black:

On — on that point, I want to ask you one other question.

Since the Supreme Court of Massachusetts had said that this is a day of rest and construes it as being for that and as not being a religious statute, can we ignore that or are we bound by what they say?

Herbert B. Ehrmann:

Mr. Justice Black, I would say that Massachusetts courts have almost universally held exactly the opposite, except for one case.

Hugo L. Black:

The Has case, which was recently decided with approval in the Chernock case.

Herbert B. Ehrmann:

That is correct and —

Hugo L. Black:

They expressly held that they construed it in that fashion.

Herbert B. Ehrmann:

That — the Has — the Chernock case simply cited the Has case without any reexamination.

Hugo L. Black:

But in some ways, yes.

Herbert B. Ehrmann:

But between the Has case and the Chernock case, there were a large number of decisions holding that this was a religious statute and the — the Has case was a maverick decision.

Now, this —

Hugo L. Black:

It — it reads like one to me, but the Court has said it’s not and that’s the problem I —

Herbert B. Ehrmann:

Well, they had — they didn’t really —

Hugo L. Black:

I think you have to answer that.

Herbert B. Ehrmann:

Yes, they didn’t — they didn’t examine in the light of their own decisions.

Felix Frankfurter:

Do you think they said that those decisions that they say it was a statute in relation to religion or is that the conclusion you draw from their phrases about observance, which is that?

They didn’t —

Herbert B. Ehrmann:

Well, they didn’t use the word, “religion.”

Felix Frankfurter:

They didn’t say this is a statute to promote some religion and to embarrass others, did they?

Herbert B. Ehrmann:

No, they did not put it that way.

Felix Frankfurter:

So that when you say they accepted a religious statute, you mean that which — the manner in which they describe that adds up to and say —

Herbert B. Ehrmann:

Exactly.

Felix Frankfurter:

— in support or help to a further religion.

Herbert B. Ehrmann:

That’s correct and they — in our brief, we’ve given a number of the preambles that were approved by our court after the Commonwealth against Has decision and also in, I think, one of the briefs filed here, one of the amicus briefs, I think, every preamble is given which was approved on.

The only — the thing that is raised by Mr. Justice Black’s question is whether or not, merely calling a statute a civil regulation makes itself.

Hugo L. Black:

Whether or not —

Herbert B. Ehrmann:

Now, we still have to look —

Hugo L. Black:

Whether or not the description of it by a state Supreme Court has one, is binding on us.

Herbert B. Ehrmann:

No, I don’t think so.

Hugo L. Black:

That is its effect.

Herbert B. Ehrmann:

No, I —

Hugo L. Black:

And if or if not, what effect should we give it?

Herbert B. Ehrmann:

It’s not a construction.

The three-judge court followed implicitly the construction of this statute and its interpretation.

Hugo L. Black:

But we are — we are not bound by this construction of the three-judge court.

Herbert B. Ehrmann:

No, I say —

Hugo L. Black:

We are bound by an interpretation, if it is an interpretation and if it’s one way or another, by the —

Herbert B. Ehrmann:

I quite —

Hugo L. Black:

— Supreme Court of the State?

Herbert B. Ehrmann:

I quite — quite agree.

And the three-judge court stated that they follow the interpretation of the statute that is its meaning implicitly, as laid down by our Supreme Court.

They did not follow the characterization of the statute in Commonwealth against Has.

They preferred to follow the characterization of the statute as contained in all of the other decisions and they so state it.

They — they had a choice of taking the Commonwealth against Has, which was a — an out of hand decision without any consideration really, of the statute itself.

And they preferred to take the well-reasoned decisions that run over 125 years, as to what the statute was and they stated that it was a mere characterization which of course, one has to respect, but is not binding.

Felix Frankfurter:

But your argument isn’t that the Massachusetts Supreme Judicial Court has given a characterization of this statute as a religion-promoting statute?

You argue that the consequence of it, the details of the statute, the way it entrenches in certain things and it proves it other things and these are conclusions that if we are to take them here are a religious kind.

Herbert B. Ehrmann:

That what is left of the statute and there’s not much left of it any more if Your Honors will see, is still devoted to the original purpose because the purpose has not been changed.

There’s no legislative declaration.

There’s no declaration anywhere that’s been changed.

All that’s happened is that activities are now permitted on the seventh day, which were not permitted before.

Hugo L. Black:

But if we merely decide these cases in constitutional form, the basis of this particular language and haven’t construed it right as to its meaning, leave it where the State can by saying, we’re going to have a day of rest and we pass it.

We haven’t made a very far reaching and maybe we shouldn’t, constitutional decision, have we?

Herbert B. Ehrmann:

Perhaps not Your Honor, but as my duty as representing the clients that I represent —

Hugo L. Black:

I agree to that.

Herbert B. Ehrmann:

— is to limit myself to the facts of this case in the Massachusetts statute.

Involved in that of course, is a discussion of some of the – the more general principles.

They will be pursued I suppose, in greater detail in some of the other cases which differ from ours, but I don’t believe in this case that it is necessary to go that far afield, because we have here a very peculiar statute that started as a religious statute and remains a religious statute.

Now, my brother Elcock stated that the — we claim the classifications are arbitrary and that therefore, it is taking of property and liberty without due process of law.

I don’t believe it’s worthwhile pursuing the classifications in view of what I was going to state was an agreement between Mr. Elcock and ourselves.

We stated in our brief and the three-judge court also stated the majority opinion that these exceptions apparently represent the successful operation of pressure on the legislature by particular groups.

Hugo L. Black:

That’s not unusual, isn’t it?

Herbert B. Ehrmann:

That is what happens [Laughter].

Not only is not unusual, but it’s universal, I would say.

For instance tobacco; tobacco may be sold on Sunday provided that the newsdealer sells tobacco all the other days of the week.

Herbert B. Ehrmann:

Now how tobacco can be a health measure in view of scientific discoveries today or why it should be sold on the seventh day instead — in addition to the other six days is another mystery.

Now, what my brother has said is that — that these exceptions are the result of the successful operation of different groups and we have said the same thing and the three-judge court by its majority decision, said the same thing.

Now, doesn’t that remove from many of these rather odd things that we see here, most of the contentions that they — they’re based upon some rational basis when we — when submitted that they are based merely upon those who are successful in getting the legislature — legislation passed.

Felix Frankfurter:

But if that’s enough to invalidate the — if that’s enough to render a statute with such exceptions unconstitutional as denying equal protection of the law, then according to your statement a minute ago, almost all legislation would have to fall because you quite like [Attempt to Laugher] submitted yourself to the —

Herbert B. Ehrmann:

I —

Felix Frankfurter:

Denying the particular proposition that almost all legislation is a product of pressures.

Herbert B. Ehrmann:

Well, that is quite true and that isn’t exactly what I intended to convey —

Felix Frankfurter:

No.

Herbert B. Ehrmann:

Because here, [Laughter] here, we have these — these odd things that are hard to explain.

For instance on Mr. Elcock’s brief, he tries to explain 6 o’clock to 10 o’clock in the morning for selling kosher meats on the basis that state inspectors of meat, they don’t want to work them too hard.

They — they want to give them a little rest.

Well, if any state inspectors visit a butcher shop more than once a month in Massachusetts, I would be surprised.

But even so, why would they prefer to get there at 6 o’clock in the morning rather than to come along leisurely at 12 o’clock or 1 o’clock?

Hugo L. Black:

Maybe some people like to get up early?

Herbert B. Ehrmann:

Well, [Attempt to Laughter] that’s quite — quite true, some people may, but I don’t think that — it’s an assumption that we can make, not on Sunday morning, at least as to most of us —

Because we have to draw —

Felix Frankfurter:

Does one have to defend all exceptions in legislation like this on a — on an obviously rational basis in order to save the statute?

Herbert B. Ehrmann:

No, I shouldn’t think so.

Felix Frankfurter:

Maybe yielding to pressure maybe sufficient justification for an enactment in order to save the larger things that the legislature might think it could save it.

Herbert B. Ehrmann:

That could be so, certainly and we have to look at the entire statute.

Felix Frankfurter:

This is all now on the question that — on — on the assumption that a Sunday rest statute would be within the so-called, police power of the State.

Herbert B. Ehrmann:

That’s right and we have to — in this connection, in the — those great cases that this Court has decided relative to the invasion of First Amendment rights, to weigh what — what purpose is being served, what — what police purpose is —

Felix Frankfurter:

Well, if you don’t make and goes on —

Herbert B. Ehrmann:

Is so important —

Felix Frankfurter:

If you don’t make and goes on to religion, then — then the personal right is merely the right to do what you please, but nothing specific.

That is, if things were under the Fourteenth Amendment in the state matters, liberty in a shelf is an end of man, unless there’s some refuses for taking away of it or part of it away or limit it.

So, it’s not really what the short hand would call the First Amendment right is it?

Herbert B. Ehrmann:

Well, the — the First Amendment right —

Felix Frankfurter:

(Inaudible)

Herbert B. Ehrmann:

First Amendment right is — is a freedom of religion instead.

Felix Frankfurter:

Well, we have — we passed that —

Herbert B. Ehrmann:

Oh, I see.

Felix Frankfurter:

We’re now appealing with the exception —

Herbert B. Ehrmann:

Well now, we come down to the question of taking property without due process of law and – and equal protection in the sense of the statute itself.

I —

William J. Brennan, Jr.:

But didn’t you really pass the first term and merely because this is a day of rest statute?

Do you completely pass the religious question?

Herbert B. Ehrmann:

No —

William J. Brennan, Jr.:

Assuming it’s not an establishment problem, would that not still be the —

Herbert B. Ehrmann:

I didn’t —

William J. Brennan, Jr.:

Question of —

Herbert B. Ehrmann:

I didn’t intend to.

William J. Brennan, Jr.:

Interference with free exercise?

Herbert B. Ehrmann:

That’s right.

I didn’t intend to.

Felix Frankfurter:

All I’m saying is the religious — the exceptions — the exceptions are not relevant or at least they don’t — they do not raise the problem if you’re still considering invalidation because it’s an inroad on the area of religious freedom, whatever that may be the — whatever concerns that may have.

These exceptions, these are the total differences —

Herbert B. Ehrmann:

The exceptions are —

Felix Frankfurter:

— having nothing to do with it.

Herbert B. Ehrmann:

Quite right, quite right.

I — I didn’t need —

Felix Frankfurter:

Digging oysters certainly, is no religious problem.

It’s between oysters and — and clams.

Herbert B. Ehrmann:

No, not so far as Orthodox Jews are concerned.

Felix Frankfurter:

No. [Laughter]

Herbert B. Ehrmann:

Mr. — Mr. Justice Brennan called my attention to the fact that I may have glided over.

I may have glided over the — the fact that a — the selection of Sunday as a day of rest, if it is a day of rest, could be an intrusion on the religious liberties of these Orthodox Jews and Seventh-Day Adventists, because the very — the very purpose of selecting Sunday, a day which is already observed by people of other faiths as a day of rest and as a day of sanctity in and of itself, subjects the Orthodox Jews and Seventh-Day Adventists to heavy penalty, so that the religious question is still there, even if the statute should be regarded as a day of rest.

Hugo L. Black:

Whether it would be permitted on the Saturday, it would still be —

William J. Brennan, Jr.:

Or a Friday or —

Hugo L. Black:

It’s a religious question.

Herbert B. Ehrmann:

Yes.

Without — without being an exception for those who observe another day as — as the Sabbath.

With that exception in — the — the difficulty is removed on that basis and Judge Magruder pointed that out in his decision.

Charles E. Whittaker:

What, if to be absolutely impartial, may be done on Monday?

Herbert B. Ehrmann:

Well, no — so far as I know, no religious sect observes Monday and I think that while it’s incredible to think of a — of a modern legislature establishing Monday as a — a weekly day of rest, I’m sure no religious question would be involved, because there would be no disadvantage in any particular sect.

Earl Warren:

Mr. Ehrmann, you have a few minutes left.

I think about 10, would you rather finish tonight or would you rather come back in the morning?

Herbert B. Ehrmann:

Well, I think perhaps, I’d rather come back in the morning.

Earl Warren:

Very well.

We’ll adjourn, now.

Herbert B. Ehrmann:

And use the rest of the 10 minutes.