Sunday Legislation

5/11

SUNDAY LEGISLATION UNCONSTITUTIONAL

Then came the formation of the National Government of the United States, with its total separation of religion and the State, and its constitutional provision that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This principle of the national Constitution with the preceding “Act for Establishing Religion Freedom,” in Virginia, has been the guide in the formation of the Constitutions of all the States of the American Union, after the original Thirteen; and even the Constitutions, though not the legislation, of the original Thirteen States have been materially shaped by it. And so faithfully has this guidance been followed, and so generally has the principle been recognized throughout the whole American Union, that, as summarized, the case stands thus: SLOC 16.1

“Those things which are not lawful under any of the American Constitutions may be stated thus: SLOC 16.2

“1. Any law respecting an establishment of religion. SLOC 16.3

“2. Compulsory or otherwise, of reIigious instruction. SLOC 16.4

“3. Compulsory attendance upon religious worship. SLOC 16.5

“4. Restraints upon the free exercise of religion according to the dictates of conscience. SLOC 17.1

“5. Restraints upon the expression of religious belief. SLOC 17.2

“These are the prohibitions which in some form of words are to be found in the American Constitutions, and which secure freedom of conscience and of religious worship. No man in religious matters is to be subjected to the censorship of the State or of any public authority.” SLOC 17.3

“The legislators have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any religious preferences by law in favor of any religious persuasion or mode or worship. There is not complete religious liberty where any one sect is favored by the State and given advantage by law over other sects. SLOC 17.4

“Whatever establishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle; it is enough that it creates an inequality of right or privilege.”—Cooley’s Constitutional Limitations,” Chap. XII, par. 1-9. SLOC 17.5

Now, in view of these facts, provisions, and principles, taking Sunday legislation for just what it unquestionably is—exclusively and specifically religious—‘it is perfectly plain upon every principle that anywhere and everywhere in the United States, and under all the Constitutions, Sunday Iegislation is “a religious persecution,” and is absolutely unconstitutional and void in itself.” SLOC 18.1

That it is unconstitutional has been admitted by both State and United States Courts. The Supreme Court of Ohio said plainly that “if religion were the sole ground of Sunday legislation, it could not stand for a moment” under the Constitution. And a United States District Court has remarked upon the “somewhat humiliating spectacle of the Sunday Advocates trying to justify the continuance of Sunday legislation ... upon the argument that it is not in conflict with the civic dogma of religious freedom,” when “It surely is; and says that “the potentiality of the fact that it is in aid of religion might be frankly confessed and not denied.” And the latter court distinctly recognized it, in very word, as “persecution.” SLOC 18.2