Denial of Equal Rights to Religious Minorities and Non-Believers in The United States

B. H. HARTOGENSIS

Yale Law Journal, vol. 39, pp. 659-681 (1930)

  1. Christianity Part of Our Law
  2. Are Oaths of Believers Alone Believable?
  3. Official Oaths Founded on Christian Belief
  4. Compelling Marriage in the Face of the Church
  5. Sunday Laws
  6. Blasphemy
  7. Bible Reading in the Schools

SUNDAY LAWS

The Fourth Commandment has long been a source of legislation in Christian nations. While Christians might disagree over the interpretation of the specific Biblical commands (Colossians 2:16-17), no one suggested that governments were generally prohibited by the Constitution from putting God's Law in the Bible into practice (according to the legislators' best understanding of the Biblical commands).

It has been said that the common law tolerance of Sunday labor was changed for England (and of course its colonies) by the Act of 29 Charles II in 1678.[73] Maryland’s miscalled "Edict of Toleration" was passed in 1649, eleven years after it was first proposed by Lord Baltimore for the colonists. It provided fines and whipping for such as should profane the Sabbath "by any unciville or disorderly recreation or working on that day." [74] The. more recent use of the term the "Lord’s Day" as a synonym for Sunday in the Judefind case[75] sufficiently shows that to such an extent at least the religious liberty of non-conformists and non-believers is still infringed upon. There is some progress, due to general agitation, in that the justification of Sunday laws by appeal to Christianity, even in Maryland, is now modified by judicial reference to police powers to enforce Sunday rest, and the religious doctrine is not so hard pressed in later decisions. Nevertheless, though the Judefind case states that "Sunday laws are to be given a reasonable construction," and that "such Sunday laws are not opposed to religious liberty," the sad experience of non-conformists in that state to this day contradicts it.[76] In 1908 the same Sabbath-breaking act of Maryland, till then the law of the District of Columbia (by inheritance) was denounced by a federal court as unconstitutional because "designed not as a civil duty but as a religious obligation." [77]

Nor is it true that there is no interference with the religious "beliefs of the non-orthodox in merely compelling them to observe Sunday as a day of rest; for the Seventh Day Adventists and Baptists and certain orthodox Jews literally construe the Fourth Commandment of the Decalogue, "Six Days shalt thou labor"; wherefore they must perforce work on Sunday in violation of "Lord’s Day" Sabbath-breaking laws. In Virginia and twenty other states, however, regular religious observance of some other day may be pleaded as a defense.

Again, shall the measure of cessation from labor be literally, "Let no man go out of his place on the seventh day,"[78] as followed narrowly by some Presbyterians and formerly the Karaite Jews, who demand a day of austerity; or shall it be a day "of delight,"[79] or of liberal allowance of pleasure-seeking as by Roman Catholics; or a denial of certain pleasures as by the Lord’s Day Alliance? In California and Oregon originally, and now the District of Columbia, there are no Sabbath laws; yet there is general cessation from labor, while disturbance of public worship and of neighborhood quiet are offenses there as else-where.

In Soon Hing v. Crowley, Mr. Justice Field laid down the modern theory for the guidance of jurists: "Laws setting aside Sunday as a day of rest, are upheld not from any right of government to legislate for the promotion of religious observance, but from its right to protect all persons from the physical and moral debasement, which comes from uninterrupted labor."[80] It is to prevent such social injustice that modern states like California have statutes preventing laboring men from engaging in more than six days continuous occupation in any one week without prescribing any one certain day of rest for all.[81]

Vermont explicitly provides for Sunday observance in its constitution.


[73] 29 CAR. II, c. 7 (1678).

[74] Maryland’s "Sabbath Breaking" Law, MD. ANN. CODE (Bagby, 1924) art. 27, 483, is the very act of 1723, which in turn was based on the Act of Religion of 1649, 4. See Hartogensis, Wherein Maryland is not a Free State, Debunker, January, 1929.

This nickname "Free State" was recently bestowed upon Maryland by a native son, H. L. Mencken, because of its deliberate unwillingness to adopt legislative measures concurrently with the Federal Government to enforce Prohibition under the 18th Amendment; "free" since the abolition of slavery in 1864; but no more "free" from Church domination than other states, and less "free" as to religious freedom.

[75] Supra note 11.

[76] Ibid. Regularly every Monday the newspapers of Baltimore report arrests with frequent fines for petty violations of the law. While the present law still forbids recreation on this day, the executive now construes the act to allow athletic performances in state armories, despite the protests of the Lord’s Day Alliance. See Governor Ritchie’s ruling in the Baltimore Sun, Dec.13, 1929. In the Maryland Constitutional Convention of 1867, an appeal for a statement of religious liberty instead of toleration in the Declaration of Rights was voted down 47 to 17. when it was met with the argument that such an amendment would take away from the legislature "all regulation of the Sabbath." PERLMAN, MARYLAND CONSTITUTIONAL CONVENTION OF 1867 (1923).

[77] Dist. of Col. v. Robinson, 30 App. D. C. 283 (1908). In spite of this decision Representative Lankford of Georgia, backed by the Lord’s Day Alliance, is trying to force a Sunday Law by Act of Congress on the District of Columbia, in clear violation of the First Amendment to the Federal Constitution.

[78] EXOD. 16:29.

[79] ISAIAH 58:13.

[80] 113 U. S. 703, 710, 5 Sup. Ct. 730, 734 (1885). Great public service is rendered by the Religious Liberty Association of Washington, D. C., and similar associations as of Seventh Day Adventists. See, in general, Friedenberg, Sunday Laws of the United States and Judicial Decisions Having Special Reference to Jews (1917) AMERICAN JEWISH YEAR BOOK; HOLMES, AMERICAN CIVIL LIBERTIES UNION.

[81] CAL. GEN. LAWS (Deering, 1923) tit. 350, act 4718.


  1. [Introduction]
  2. Christianity Part of Our Law
  3. Are Oaths of Believers Alone Believable?
  4. Official Oaths Founded on Christian Belief
  5. Compelling Marriage in the Face of the Church
  6. Sunday Laws
  7. NEXT: Blasphemy
  8. Bible Reading in the Schools


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