THE OBSOLESCENCE OF BLUE LAWS IN THE 21ST CENTURY.

• Author: Robbins, Ira P.

INTRODUCTION 290 I. THE HISTORY OF BLUE LAWS AND THEIR LEGAL CHALLENGES 292 A. Sol Invictus--The Early Origins of Blue Laws 292 B. The Sunday Cases--McGowan and Its Companions 294 C. Subsequent Challenges and Critiques of Blue Laws 297 1. First Amendment 297 2. Second Amendment 298 3. Equal Protection, Discriminatory Enforcement, and Due Process 299 4. Commerce Clause and Twenty-First Amendment 303 5. Preemption by Federal Regulation 305 6. Environmental and Economic Benefits Through Repeal of Hunting Blue Laws 307 D. Evolution of the Modern Status of Blue Laws in the Twenty- First Century 308 1. Special Interest Influence 309 2. Societal Views 310 II. THE IMPACT OF THE TWENTY-FIRST CENTURY ON BLUE LAWS 315 A. Twenty-First Century Legal Developments & Novel Blue Law Challenges 316 1. First Amendment and the Establishment Clause 316 2. Challenges to Hunting Blue Laws 317 3. Federal Preemption and Title VII Challenges 318 4. Issues Raised by Blue Law Exceptions 319 5. Desuetude 320 B. Twenty-First Century Society's Effect on Sunday Closing Laws 324 1. The Ineffectiveness of Sales Restrictions in the Internet Age 325 2. Trend Toward Limiting Sunday Liquor Laws 327 3. Automotive Sales and Hunting Blue Laws 328 4. The Contradictory and Patchwork Nature of Remaining Blue Laws 330 5. Crime and Economy 331 CONCLUSION 333 INTRODUCTION

What do George Washington, a New Jersey automobile dealer, a Louisiana butcher, and a Georgia brunch enthusiast have in common? Centuries-old Sunday restrictions have hampered and waylaid each of them--George Washington three centuries ago, the rest today. (1) Originally intended to encourage religious observance on Sundays and holidays, (2) Blue Laws survived decades of challenges and public backlash thanks to Supreme Court decisions declaring them a legitimate use of the state's police power. (3) Notwithstanding the courts' continued approval, public opinion has grown increasingly hostile to Sunday restrictions, particularly with regard to Sunday liquor sales and shopping. (4) "Mimosa mandates" and "brunch bills" flood state and local legislatures, and online shopping has changed consumer habits and expectations. (5) These modifications have chipped away at the two major areas that the antiquated laws still govern--liquor and retail sales. (6) Further, Blue Laws governing automobile sales and recreational activities--such as Sunday hunting restrictions--have also become increasingly obsolete. (7)

This Article analyzes the current state of Blue Laws in the United States and argues that they rest on thin legal grounds, given doctrinal and technological developments. Part I explains previous legal challenges and reanalyzes them in light of current context, including new issues raised by conflict of laws and the doctrine of desuetude. Additionally, public policy concerns should motivate lawmakers to seek their broad repeal. Part II provides historical and legal background to Blue Laws both in the United States and abroad. Part III analyzes the current status of Blue Laws in various state codes and examines the policy grounds for repeal. Part IV recommends the mass abrogation of Blue Laws and considers the implications of this proposal. Part V concludes that, given the recent trend toward repeal and modification of Blue Laws, as well as their questionable legal foundations, states should remove the remaining laws altogether.

1. THE HISTORY OF BLUE LAWS AND THEIR LEGAL CHALLENGES

   1. Sol Invictus--The Early Origins of Blue Laws

      Since the Romans, Western society has restricted the sale of liquor on Sundays. What began as a pagan edict in 321 A.D. eventually took on a Christian facet as Christianity spread through the Roman Empire in 386 A.D. (8) In the United Kingdom, kings first proclaimed Sunday Closing Laws, and later Parliament decreed them. (9) The extensive colonization from Great Britain spread the Sunday sale prohibitions to Australia, North America, South Africa, and New Zealand. (10) Some countries in Europe restricted Sunday sales as well. (11)

      The United States incorporated Blue Laws--otherwise known as Sunday Closing Laws or Lord's Day Acts (12)--into the legal landscape directly from English common law during the country's colonization and subsequent founding. (13) In 1610, the Colony of Virginia was the first to pass a Blue Law, which made morning and evening attendance at Sunday church service mandatory--with the third violation punishable by death; the rest of the thirteen colonies enacted some form of their own Blue Laws shortly thereafter. (14) There are two competing theories on how these laws came to their colorful name. The Henman theory posits that the term stemmed from the blue-colored paper on which the New Haven colony first printed their laws; however, the Trumbull theory argues that it is a reference to the idiom "true blue will never stain," which was a term of reproach for overly strict Puritans. (15) Regardless of the origin, both theories point to Blue Laws' early colonial history.

      Recognition of Sunday as a unique or honored day was subsequently woven into the U.S. Constitution, as well as many state constitutions. (16) As the country grew, Blue Laws spread; due to early Puritan influence, the New England and Mid-Atlantic states implemented the strictest Blue Laws. (17) Conversely, the Far West adopted comparatively fewer Blue Laws. (18) The Blue Laws of the new nation "continued the colonial tradition of prohibiting all Sunday labor, business, and worldly amusements" while maintaining exceptions for "necessity and charity." (19) While enforcement of harsh penalties happened with some frequency, so too did widespread civil disobedience to early Sunday Laws. (20)

      The Blue Laws of the early United States generally fall into two categories: (1) a general ban on Sunday activities and business; or (2) specific bans on certain activities or businesses. (21) General Sunday Closing Laws broadly prohibit all retail activity. (22) Specific Sunday restrictions delineate "specific activities as uniquely worthy of Sunday restriction." (23) The most prevalent specific Blue Laws are those restricting the sale of alcohol. (24) Certain states even establish criminal, not just civil, sanctions for Blue Law violations. (25) Generally categorized as misdemeanors, these states punish violations of criminal Blue Laws through imprisonment, monetary fines, restitution, and injunctive relief. (26)

      Despite their early ubiquity, Blue Laws began to face challenges by the midnineteenth century as special interest groups started exerting influence on state legislatures to create exceptions. (27) In 1858, Massachusetts passed the first exception to its Blue Laws--allowing licensed sports activities to operate on Sun-days--and many other exceptions quickly followed. (28) Blue Laws expanded in the early twentieth century, when legislatures implemented new prohibitions against everything from baseball to cock-fighting. (29) However, political and public support for the temperance and prohibition movements, along with their puritanical undertones, waned after several years. By the mid-twentieth century, Blue Laws faced their most serious challenges in the Supreme Court.

   2. The Sunday Cases--McGowan and Its Companions

      Before the mid-twentieth century, the Supreme Court generally endorsed Blue Laws. (30) Although primarily concerned with labor restrictions involving laundry businesses and discrimination, the significant case of Soon Hing v. Crowley (31) provided legal justifications for Blue Laws through a statement by Justice Field:

      Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States. (32) Twelve years later, the Supreme Court decided Hennington v. Georgia, (33) a direct challenge to a Sunday regulation restricting the operation of freight trains. Faced with a Commerce Clause challenge to the law, the Court upheld the prohibition as a valid use of the state's police power to restrict transportation activity because the prohibition was neither directed at, nor did it have a significant effect on, interstate commerce. (34) The Supreme Court did not decide another constitutional challenge to a state's Blue Law for sixty-five years post-Hennington, in the seminal case of McGowan v. Maryland (35) and its three companion cases. (36)

      In McGowan, seven employees from a large discount department store were convicted of violating Maryland's extensive Sunday retail restrictions for selling a three-ring, loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine. (37) The employees of the store challenged the constitutionality of the Sunday Closing Law on both Equal Protection and Establishment Clause grounds. (38) The Court ruled that the restrictive retail law did not violate the Equal Protection Clause because it was reasonably related to citizens' welfare, the statutory distinction was not invidious, and the legislature had a rational basis in passing the law rooted in local tradition and custom. (39) Relying in part on Justice Field's quote in Soon Hing, (40) the Court acknowledged the religious heritage of Sunday Closing Laws but found that many had sufficiently evolved into secular laws with non-religious purposes. (41) Regarding the particular Maryland statute in dispute, the Court reasoned that it lacked overt religious language and excepted multiple activities previously considered profane, such as Sunday Bingo and baseball, which evidenced an intent to promote rest and relaxation--a valid...