Judicial Religious Legislation Exposed

The National Supreme Court

And this falsely “civil” cover for the truly religious Sunday laws—this judicial religious legislation—the national Supreme Court has confirmed for all the States. The story of it is curious as well as valuable. JRLE 2.10

The constitution of California guarantees the free exercise of religious profession and worship “without discrimination or preference.” A law was enacted there that “no person shall, on the Chris- tian Sabbath, or Sunday, keep open any store,” &c. In 1858 a case under this statute reached the Supreme Court of that State. In the finest and best reasoned decisions ever rendered on the subject the court decided the law to be unconstitutional; Justice Stephen J. Field dissenting. JRLE 2.11

In his dissenting opinion Justice Field first gave a “civil,” “physical,” and “general health” cover to the religious statute designating “the Christian Sabbath, or Sunday;” and then confirmed and sustained the religious basis of the law by declaring that “Christianity” being “the prevailing faith of our people” and “the basis of our civilization,” “that its spirit should infuse itself into our laws, is natural.” JRLE 3.1

The constitutional prohibition of any “discrimination or preference” in “religious profession or worship” he circumvented thus: “In what manner it conflicts with the fourth section I am unable to perceive.... It makes no discrimination or preference between the Hebrew and Gentile, the Mussulman and pagan, the Christian and infidel.” JRLE 3.2

Of course, we must give to the judge full credit for telling the truth where he said that he was “unable to perceive” that a statute plainly designating “the Christian Sabbath” was any discrimination or preference over Jew, Mussulman, pagan, or infidel. But when a man in his position is confessedly “unable to perceive” such a plain thing as that, he gives cause for very serious question as to whether and how he could be able really “to perceive” all that he described as the “civil,” “secular,” “physical,” and hygienic basis of the religious Sunday law. JRLE 3.3

And when a man in such a position as that was “unable to perceive” so upon as palpable a thing, as that the positive designation of “the Christian Sabbath” in the law is a discrimination and preference in favor of the “Christian” religion, then how can any of us be fairly considered culpable in being equally unable to perceive that Justice Field’s “civil,” “secular,” “physical,” and hygienic basis of Sunday laws is anything else than inept, foreign, and false? And is it the American principle that the defective perception of the judge shall be the final test of the supreme law? JRLE 3.4

The next year after that decision of the California court, and Justice Field’s dissenting opinion, Justice Field himself became chief justice of the California court. In 1861 another Sunday law case came before that court. In the decision upon this case, the former decision of the court was supported with Justice Field’s dissenting opinion in that case, which stood as the law of the subject in that State until the people of California, as the supreme expounders of their own will, expressed in their own constitution, by the decision of popular vote, overwhelmingly swept out of existence all Sunday laws in the State. JRLE 3.5

Chief Justice Field, of the California court, became Associate Justice Field, of the national Supreme Court. And when a case came before the national Supreme Court as to the constitutionality of Sunday laws in the States, the court sustained those Sunday laws, and cited Justice Field’s dissenting opinion as the ground of the decision. And so by national decision, the religious Sunday laws, upon the foreign and false basis furnished by Justice Field’s judicial legislation, have been fastened upon all the States. And this is a plain indication of just what the national Supreme Court will do with Sunday laws by the national government whenever there shall come to that court an opportunity. This is further indicated by the fact that in its decision that “this is a Christian nation,” the national Supreme Court mentioned “the laws respecting the observance of the Sabbath,” as one of the proofs of it. JRLE 3.6

And all of this is strictly pertinent and up to date, by the fact that the Sunday Rest Committee of the District of Columbia, through its attorney, has issued to Congress a printed brief on “The Legal and Constitutional Aspects” of Sunday legislation; pleading that it “be regarded as civil,” yet presenting no single item of any other ground than religious. JRLE 3.7