Legisla-' ture cannot

impose religious duties.

Law un

constitutional.

Object of law shown to be religious.

While it is the legitimate prerogative of the Legislature to impose upon society the civil duty of observing one day in seven as a day of rest, it is beyond its power to impose the observance of Sunday as a purely religious duty. In other words, while the Legislature may very properly prescribe and impose upon the citizen obligations of a civil nature, it cannot impose the obligations as religious duties. If, therefore, the act in question was intended to enforce the observance of the Sabbath as a religious obligation, and not a civil duty, whatever power the colonial legislative assembly may have had to prescribe and enforce such a law, we are of the opinion that it cannot be legally enforced under our present constitutional form of government. The Constitution of the United States guarantees to the citizen absolute religious freedom in that it forbids the enactment of any law respecting an establishment of religion, or that will prohibit the free exercise thereof.

With this distinction before us, let us analyze the manifest object and purpose of the statute before us. The act of which this section was a part was entitled "An Act to punish blasphemers, swearers, drunkards, and Sabbath-breakers, and for repealing the laws heretofore made for punishing such offenders." The first section provided "that if any person shall hereafter, within this province, wittingly, maliciously, and advisedly, by writing or speaking, blasSunday legislation altogether, the court here goes on at some length to argue upon the rightful authority of the state, in the exercise of its "police power," to make laws "prohibiting labor on the Sabbath," as a rule of civil duty," and "for the health, the morals, and the general welfare of its people;" and, on the ground that "our nation and the States composing it are Christian in policy," to select Sunday, the first day of the week, as such, citing, in support, Justice Field's dissenting opinion in ex parte Newman, California, 502, and Judge Thurman, in 2 Ohio St., 387, and closing this line of argument with the statement that "the constitutionality of this class of legislation can no longer be questioned." On "police power," see page 520.

pheme or curse God, or deny our Saviour Jesus. Christ to be the Son of God, or shall deny the Holy Trinity; the Father, Son, and Holy Ghost, or the Godhead of any of the Three Persons, or the unity of the Godhead, or shall utter any profane words concerning the Holy Trinity or any of the Persons. thereof, and shall be thereof convict by verdict, or confession, shall, for the first offence, be bored through the tongue and fined twenty pounds sterling:

. for the second offence . . shall be stigmatized by burning in the forehead with the letter B, and fined forty pounds sterling; . . and that for the third offence, the offender, being convicted as aforesaid, shall suffer death without the benefit of the clergy." The second section related to profane swearing in the presence of certain officers, named, among which were ministers, vestrymen, and church wardens. The third section prohibited drunkenness. The other sections, aside from the one here under consideration, related to the manner in which trials should be conducted, and the manner of enforcing the collection of fines and the infliction of punishment. The act then provided for the repeal of certain acts providing for "Sanctifying and Keeping Holy the Lord's Day, commonly called Sunday, and for the Punishment for Blasphemy, Profane Swearing, Cursing, and Drunkenness."

Forced to conclusion

of law.

Taking the entire act into consideration, we are forced to the conclusion that the object of this statute undoubtedly was to prevent a desecration of the by setting Lord's day, as it was called in the act, and not primarily to enforce a day of rest, which is the present policy of such laws as defined by the courts. The statute before us is part of a peculiar class of legislation that was enacted in many of the colonies during the seventeenth and the early part of the eighteenth centuries. The object of such legislation was not to

of colonial

bring about the purpose sought to be accomplished by the legislation of the present day, providing for a cessation from labor on one day in seven, but to enforce a strict religious observance of the Sabbath day. Such laws were the outgrowth of the system Outgrowth of religious intolerance that prevailed in many of the colonies. They prescribed religious and not civil duties. With the adoption of the Constitution and the establishment of constitutional governments in the States of the Union these laws dropped into disuse, and any attempt to enforce them was frowned upon by the courts.1

religious intolerance.

Object of all Sunday laws.

Johnston

Sunday bill and Maryland law of 1723 compared.

1

Taking the entire history of Sunday legislation into consideration, every honest man is forced to the conclusion that every Sunday law that has ever been made is religious, the Maryland law of 1723 no more so than any other. The primary object of every one of them from first to last is "to prevent the desecration of" Sunday, and not simply to enforce a day of physical rest, which means simply to enforce a day of idleness. After admitting that the Maryland Sunday law, along with the other laws of this kind, was 'the outgrowth of the system of religious intolerance that prevailed in many of the colonies," and that these laws "prescribed religious and not civil duties," is it not a little strange that the court, in the face of the first amendment to the Constitution, to which it alluded, should fail to set this law aside upon the ground of its unconstitutionality?

That the old Maryland-District Sunday law of nearly two centuries ago is no more religious than more modern Sunday legislation and attempted Sunday legislation, compare it with the Johnston District Sunday bill which passed the Senate May 15, 1908, and again, with slight modifications, January 27, 1910. See page 398. One prohibits "bodily labor on the Lord's day, commonly called Sunday;" the other "labor at any trade or secular calling on the first day of the week, commonly called Sunday." One prohibits "unlawful pastimes or recreations; the other " any circus, show, or theatrical performance." One prohibits any one to suffer his children, servants, or slaves to do any manner of work or labor on the Lord's day, works of necessity and charity always excepted; " the other forbids any one to cause to be employed his apprentice or servant in any labor or business, except in household work or other work of necessity or charity." One forbids any one to permit any one under him to profane the Lord's day;" the other, as first introduced, exempts any one from keeping Sunday provided he is a member of a religious society who observe as a Sabbath any other day

46

.

66

It was admitted at bar that no former attempt had ever been made to enforce the statute in question, though it has been on the statute books of the District of Columbia for more than one hundred years.

Statute

. It is proper to regard the statute before us not only as obsolete, but as repealed by implication obsolete. in such essential parts as an advanced and enlightened civilization justifies with due regard for the personal liberties of the citizen. The judgment of the

Police Court is affirmed.

to enforce

in the week than Sunday," and "observe as a Sabbath one day in
each seven as herein provided." One provides a fine of "two hun-
dred pounds of tobacco," or in default (as per preceding sections of
the same act) "three hours in the stocks" or "thirty-nine lashes"
(see note on page 46); the other a fine of ten dollars or ten days'
imprisonment, or both (thirty dollars and thirty days as last passed).
Neither requires church attendance. Both are religious. Both "pre-
scribe religious and not civil duties." One is intended
a strict religious observance of the Sabbath day" as much as the
other. The two are practically the same. To say that the object of
one is religious and the other civil is to blind one's eyes and to stul-
tify reason. One is as religious as the other, and as much "the out-
growth of the system of religious intolerance that prevailed in many
of the colonies" as the other. Every Sunday law in the United
States to-day is simply a relic of the old colonial religious establish-
ments, and these of the religious establishments of the Old World.
To pronounce one religious is to condemn all. They are all of one
piece, and all should be repealed, and not left for the courts to de-
clare valid and in force, or obsolete and not enforceable, as they
choose.

The setting in which the old Maryland Sunday law was found compelled the court to recognize its religious character and object. Every other Sunday law, either ancient or modern, without such setting, is just as religious. None of them has ever been or ever will be enforced for the "health" of the individual. By prohibiting labor and amusements on Sunday the state simply enforces a day of idleness idleness is a breeder of dissipation and crime, and these are conducive to the health, happiness. morality, and welfare of no one. See "What Is the Equivalent?" on page 740. The command of the divine Sabbath law is, "Remember the Sabbath day to keep it holy." The religious basis is the only true, effective, or permanent basis for Sabbath-keeping, and this rules the whole question outside the domain of civil law.

Sunday laws not enforced for health.

Decided Oct. 4, 1909.

The municipal Sundayclosing ordinance.

Not in interests of peace, welfare, or health.

Usual ground for supporting Sunday laws.

No right to make leisure compulsory.

SUPREME COURT OF COLORADO.' Plaintiff in error was convicted of violating section 1256 of the Municipal Code of the city and county of Denver. The section is as follows: "It shall be unlawful for any person, firm, or corporation to keep open or conduct any butcher shop, meat market, or grocery store, or to expose or offer for sale or sell any meats, fish, game, poultry, groceries, or provisions on the first day of the week, commonly called Sunday."

It does not appear that the section, as framed, will promote the peace, welfare, health, or other ends for the promotion of which the police power of the city may be exercised. Upon the authority of Denver v. Bach, 26 Colorado, 230, and for the reasons there given, the section of the Municipal Code under which plaintiff in error was convicted, is invalid.

The judgment will, therefore, be reversed and the cause remanded, with instructions to dismiss the complaint. All the justices concurring.

1 Mergen v. City and County of Denver, 46 Colorado, 385.

2 Since the separation of church and state became an established doctrine in the United States, the courts have generally sought to sustain the validity of Sunday laws upon the ground of their being enacted "in the legitimate exercise of the police power of the state," "for the promotion of the moral and physical well-being of the people." See Petit v. Minnesota, 177 U. S. Reports, 164 (1900), and case cited below. This decision repudiates this idea, so far at least as municipal Sunday laws are concerned.

Seeking to sustain a Georgia Sunday law upon this ground, the Supreme Court of the United States, in 1896, in an opinion delivered by Justice Harlan, said: "Leisure is no less essential than labor to the well-being of man." Hennington v. Georgia, 163 U. S., 299. Even though the statement be admitted as true, it does not therefore follow that the state has any more right to make leisure than labor compulsory. Compulsory labor would be slavery. Compulsory leisure is no less a tyranny and usurpation of power. And compulsory reli

gious rest, or sabbatizing, is religious tyranny. That Sunday laws are religious, and not mere 'police regulations," is shown from the fact that in the case just cited, the court repeatedly referred to Sunday as the Sabbath," "the Sabbath day," and "the Lord's day." 9ee Justice Brewer on page 511.