LOCATION: Alabama General Assembly
DOCKET NO.: 36
DECIDED BY: Warren Court (1958-1962)
CITATION: 366 US 582 (1961)
ARGUED: Dec 08, 1960
DECIDED: May 29, 1961
Facts of the case
Media for Two Guys from Harrison-Allentown, Inc. v. McGinley
Audio Transcription for Oral Argument - December 08, 1960 in Two Guys from Harrison-Allentown, Inc. v. McGinley
Two Guys from Harrison-Allentown Incorporated, Appellant, versus Paul A. McGinley, District Attorney, County of Lehigh, Pennsylvania, et al.
Harold E. Kohn:
Chief Justice, may it please the Court.
I feel most unfortunate that I waited a long, long time for the opportunity of coming before this Court.
I find the two-case in which I'm going to argue, the arguments are anticipated.
Yesterday, the argument I intended to present on Monday, the antitrust case was anticipated and today Mr. Berger I think began the argument of my case sometime before I got here.
So that I may have to digress for a moment from the argument that I had intended to give and clear what I think it has to be cleared by way of the record before we begin here.
In the first place, in our case which was begun before the 1959 Act was passed, we challenge the old 1794 Act which had become a part of the Criminal Code when all of Pennsylvania criminal laws were codified in 1939.
The Attorney General, in his brief, at page 3 is quite clear on that and says that there are two statutes involved here - one, the old 1794 Act and the other the 1959 Act.
John M. Harlan II:
What about the old statute?
Harold E. Kohn:
The old statute is still there.
I may say this too sir that, we had evidence in our case partly for the purpose of preventing amateur theologian on this side of the bar from giving you what might not be actually the correct theology.
And let me perhaps explain just what Sunday and what Saturday is and to remind you what sometimes people do forget.
It's once again, like the burner that Justice Frankfurter was interested in seeing yesterday.
Saturday began as a religious day of rest in the Old Testament.
You have it of course first write in Genesis at the very beginning and then very emphatically incorporated as part of the biblical law in the Ten Commandments and elsewhere throughout the Old Testament.
Sunday has nothing whatsoever to do with that concept.
Sunday and Saturday, insofar as the quarrel is concerned or the theological dispute, is not a quarrel as to which is the day of rest.
In other words, is the seventh day of the week Saturday or is the seventh day of the week Sunday, and this is all in the evidence which was produced below and not challenged by any contradictory evidence on the part of a commonwealth and by no witness on the other side.
About 300 years after the resurrection when there had become a number of Christian communities which sprang from the Roman or the Gentile or pagan origin as distinguished from those which sprung from Jewish origin and after Constantine and the story we're all familiar with when in this sign he conquered and decided that he was going to make Christianity the state religion.
The first thing he did was to pass a law which made Sunday, this was in 320, Sunday, which had been forever -- and has been since forever commemorated as the day of the resurrection not the day of rest, a holy day and a state enforced holy day.
Now, what did he do in order to make it enforce as a state holy day.
He took from the Jewish religion with which people were familiar that form of observance which traditionally and now for 4,000 years, I mean it's in the blood and the bone as a method of celebrating a religious event.
He took that which was the most solemn way of observing a religious holy day refraining from work.
Traditionally, among the Jewish people, that Sabbath was the holy day.
In Yom Kippur, which is for all Jews who have any religious observance at all the most sacred day of the year, the most important injunction even more important actually than fasting is the refraining from work, and we quote in our brief the admonitions in the bible that not only must I refrain of my man servant, my maid servant, the people in my house and even the animals are forbidden to work on that day in the Jewish community.
So that you had a combination really of two things - You had the enforcement of the pivotal doctrine in the Christian religion, namely, the resurrection observed by state compulsion through that which traditionally among the Jewish people have been the way of showing the greatest respect, namely, refraining from work.
I read Justice Holmes who said that page of history I think is worth the volume of logic and you just can't throw out of the window as the City Solicitor sought to do some 4,000 years of Jewish history and some 1,600 years of Christian and western history.
Judge Hastie in his opinion below recognized that all of our Sunday laws are part and parcel of the same thing.