The Establishment Clause in the Public Square

Author:Ruthann Robson
Pages:983-1073
 
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Robson The First Amendment
983
!
Chapter&Thirteen:&THE&ESTABLISHMENT&
CLAUSE&IN&THE&PUBLIC&SQUARE&
This Chapter considers the boundary between “church and state” in the
public square. Section one focuses on the problem of “history” in Sunday
“blue laws” and prayer in legislative bodies. Section two considers
“religious” symbols in the public square, including the holiday displays,
the Ten Commandments cases, and crosses. The final section highlights
the question of standing in Establishment Clause cases.
Chapter Outline
I. Historical Practices
McGowan v. Maryland
Marsh v. Chambers
Town of Greece, New York v. Galloway
Notes
II. Displays of Religious Symbols
Allegheny County v. Greater Pittsburgh ACLU
Note
McCreary County, Kentucky v. ACLU of Kentucky
Van Orden v. Perry
Notes
Note: Salazar v. Buono
III. The Problem of Establishment Clause Standing
Arizona Christian School Tuition Organization v. Winn
Notes
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I.&Historical&Practices&&
Recall Justice Rutledge’s statement, dissenting in the Court’s first
Establishment Clause case, Everson v. Board of Education (1947)
(Chapter 12), that “No provision of the Constitution is more closely tied
to or given content by its generating history than the religious clause of
the First Amendment. It is at once the refined product and the terse
summation of that history.”
Consider the relevance of history - - - and which histories - - - in the
interpretation of the Establishment Clause challenges to religion in the
“public square” as it relates to accepted practices and “slippery slopes.”
McGowan$v.$Maryland$
366 U.S. 420 (1961)
CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT IN WHICH BLACK, CLARK,
BRENNAN, WHITTAKER, AND STEWART, J.J. JOINED. FRANKFURTER FILED A CONCURRING OPINION
IN WHICH HARLAN, J., JOINED. DOUGLAS, J., FILED A DISSENTING OPINION.
CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.
The issues in this case concern the constitutional validity of Maryland criminal
statutes, commonly known as Sunday Closing Laws or Sunday Blue Laws.
These statutes, with exceptions to be noted hereafter, generally proscribe all
labor, business and other commercial activities on Sunday. The questions
presented are whether the classifications within the statutes bring about a
denial of equal protection of the law, whether the laws are so vague as to fail to
give reasonable notice of the forbidden conduct and therefore violate due
process, and whether the statutes are laws respecting an establishment of
religion or prohibiting the free exercise thereof.
Appellants are seven employees of a large discount department store located on
a highway in Anne Arundel County, Maryland. They were indicted for the
Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and
staples, and a toy submarine in violation of Md. Ann. Code. Art. 27, 521.
Generally, this section prohibited, throughout the State, the Sunday sale of all
merchandise except the retail sale of tobacco products, confectioneries, milk,
bread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and
periodicals. Recently amended, this section also now excepts from the general
prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile
and boating accessories, flowers, toilet goods, hospital supplies and souvenirs.
It now further provides that any retail establishment in Anne Arundel County
which does not employ more than one person other than the owner may operate
on Sunday.
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Although appellants were indicated only under 521, in order properly to
consider several of the broad constitutional contentions, we must examine the
whole body of Maryland Sunday laws. Several sections of the Maryland statutes
are particularly relevant to evaluation of the issues presented. Section 492 of
Md. Ann. Code, Art. 27, forbids all persons from doing any work or bodily labor
on Sunday and forbids permitting children or servants to work on that day or to
engage in fishing, hunting and unlawful pastimes or recreations. The section
excepts all works of necessity and charity. Section 522 of Md. Ann. Code, Art.
27, disallows the opening or use of any dancing saloon, opera house, bowling
alley or barber shop on Sunday. However, in addition to the exceptions noted
above, Md. Ann. Code, Art. 27, 509, exempts, for Anne Arundel County, the
Sunday operation of any bathing beach, bathhouse, dancing saloon and
amusement park, and activities incident thereto and retail sales of merchandise
customarily sold at, or incidental to, the operation of the aforesaid occupations
and businesses. Section 90 of Md. Ann. Code, Art. 2B, makes generally
unlawful the sale of alcoholic beverages on Sunday. However, this section, and
immediately succeeding ones, provide various immunities for the Sunday sale of
different kinds of alcoholic beverages, at different hours during the day, by
vendors holding different types of licenses, in different political divisions of the
State - particularly in Anne Arundel County.
The remaining statutory sections concern a myriad of exceptions for various
counties, districts of counties, cities and towns throughout the State. Among
the activities allowed in certain areas on Sunday are such sports as football,
baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey,
swimming, softball, boating, fishing, skating, horseback riding, stock car racing
and pool or billiards. Other immunized activities permitted in some regions of
the State include group singing or playing of musical instruments; the
exhibition of motion pictures; dancing; the operation of recreation centers,
picnic grounds, swimming pools, skating rinks and miniature golf courses. The
taking of oysters and the hunting or killing of game is generally forbidden, but
shooting conducted by organized rod and gun clubs is permitted in one county.
In some of the subdivisions within the State, the exempted Sunday activities are
sanctioned throughout the day; in others, they may not commence until early
afternoon or evening; in many, the activities may only be conducted during the
afternoon and late in the evening. Certain localities do not permit the allowed
Sunday activity to be carried on within one hundred yards of any church where
religious services are being held. Local ordinances and regulations concerning
certain limited activities supplement the State's statutory scheme. In Anne
Arundel County, for example, slot machines, pinball machines and bingo may
be played on Sunday.
Among other things, appellants contended at the trial that the Maryland
statutes under which they were charged were contrary to the Fourteenth
Amendment for the reasons stated at the outset of this opinion. Appellants were
convicted and each was fined five dollars and costs. The Maryland Court of
Appeals affirmed; on appeal brought under 28 U.S.C. 1257 (2), we noted
probable jurisdiction.
I.
[omitted: The Court rejected the Equal Protection challenge]

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