Shop ’till You Drop

How would you explain the Shabbat laws in Israel to a group of visiting mid-career journalists, Jewish and non-Jewish Americans? Led by University of Southern California Professor Diane Winston, nine mid-career journalists will be writing daily pieces and posting to a variety of outlets, including The Washington Post, Huffington Post,, NPR, The Los Angeles Times and religious dispatches. This is a return visit to Israel on the theme “Religion, Ethnicity and Coexistence.” I was asked to explain what the organizers have termed the “Secular v. Religious: Sabbath Wars” on Sunday evening Mar. 13 (7 Adar II). I will suggest that the journalists refer to this cross-currents blog to read the discussion that, hopefully, will ensue below.

In Israel there is legislation to ensure observance of the Jewish Sabbath (almost no buses run, stores are supposed to be closed,etc.). Some are against or simply ignore these laws. The journalists will meet with individuals from both sides to understand the complexities of the Sabbath Wars. I am to speak opposite Anat Hoffman (of the Reform Israel Religious Action Committee)

My question to readers of this post is how best to approach the debate? Here are some avenues I am exploring.

1) I wrote on this subject on July 19,2007 on the cross-currents blog, in a posting titled “Harry Potter and Shabbos” to which there were 20 comments.

2) I could emphasize the spiritual importance of Shabbat, describe the family unity; celebrate freedom from TV, cell phone tyranny; explain the Sabbath as a covenant with G-d.

3) I plan to show a video of Livia Bitton-Jackson, a Holocaust survivor, my neighbor,telling about how she and other women took great risks in the camps during the Shoah, in order to light Sabbath candles and minimize working on Shabbat.

4) I thought to make a “modest” tongue-in-cheek proposal – to forbid Sabbath observance in Israel to all but a small group of religious people who request special permission to observe it. For background see the article The Sabbath Observing Gentile: Halakhic, Hashkafic and Liturgical Perspectives’ by Elchanan Adler; Tradition: A Journal of Orthodox Jewish Thought. There he analyzes the puzzling statement (Talmud Sanhedrin 58b), Goy Sheshavat Hayyav Misa

5) I could emphasize the socio-economic dimension. A religious person is hard pressed to find a job in restaurants, gas stations, and other places where they insist you work on Shabbat.

6) A secular Israeli thinker, Dr. Zvi Zameret, has lamented in the Jerusalem Post the slow disappearing of public Sabbath, due to Shabbat shopping. (See article 20 titled “Save the Sabbath”). He wrote:

“Sabbath has been completely undermined in this country … 18% of employees in Israel – 324,000 people – work on Shabbat. 16% of those who work on Shabbat – 60,000 people – work seven days a week, with no day of rest. People who work on Shabbat work 50 hours a week (compared to an average of 39 in the rest of the economy). A little over 20% of those who work on Shabbat are new immigrants. … Some 600,000 Israelis shop every Shabbat… TRAGICALLY, IN front of our eyes the Jewish people, who gave the Sabbath to humanity, is gradually renouncing it. .. If in ancient times the Sabbath was one of the basic rights of every slave – and even every animal – today there is an emerging class of Shabbat slaves, with no rights, whose job is to serve their Shabbat masters (over half a million Israelis who shop on Shabbat).”

Which of these approaches (or others) would be best to use in the upcoming discussion?

Shira Schmidt

Shira Leibowitz Schmidt was raised in an assimilated Jewish home in New York, and became observant while studying at Stanford University in California. In June 1967 she told her engineering school professor she would miss the final exam because she was going to Israel to volunteer during the Six Day War. “That’s the most original excuse I have ever been offered,” he responded. She arrived during the war and stayed, receiving her BSc in absentia. She subsequently met and married the late Elhanan Leibowitz, and they raised their six children in Beersheba. Mrs. Leibowitz acquired a Masters in Urban & Regional Planning from the Technion, and an MSc in Civil Engineering from University of Waterloo. Today she lives with her husband, Dr. Baruch Schmidt, in Netanya. She co-authored, with Nobel prize-winning chemist Roald Hoffmann, Old Wine New Flasks. She has co-translated from Hebrew to English (with Jessica Setbon) From the Depths (the autobiography of Rabbi Israel Meir Lau); The Forgotten Memoirs (memoirs of Rabbis who survived the Shoah, edited by Esther Farbstein); and Rest of the Dove (Parashat Hashavua by Rabbi Haim Sabato). She and her husband appear in the documentary film about the Sanz-Klausenberger Rebbe, “Hidden Face.” She is available to lecture in Israel and in the US and can be contacted via

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19 Responses

  1. Yeshayahu Kocheran says:

    I’d say points 2, 3, 4, and 6.

  2. Dovid says:

    I don’t love any of those ideas – the other side of the argument still seems stronger. I imagine their position is that although the political process has resulted in these laws, they want to influence the process to rescind them. Underlying that, however, is the complaint that the religious use devious means to effect their political will. That is probably the argument that most needs to be addressed.
    I would therefore assert that Israel owes its existence to the fact that it is a Jewish State. That is why so many people around the world supported and continue to support it and that is what animates the core of its citizens. If tomorrow it became a simple democracy, all the wind would be taken out of its sails. The question becomes, how should it be decided what makes it a Jewish state? Whatever the full answer is, it cannot depend on a popular vote because the definition of Judaism never did and no one who supports Israel as a Jewish state really believes that makes any sense (unless they think they will win it). There must be another way to determine what makes Israel a Jewish state and a thorough position here will need to present one. whatever that is, though, the argument can be made specifically that Shabbos, as a unique day in the week according to its historic meaning, is essential to it. There is no Israel-as-a-Jewish-state without a national, authentic Shabbos. Even practically, the religious community is absolutely convinced that without a national, authentic Shabbos, Israel will eventually cease to be a Jewish state in any meaningful way. It will take an inspired presentation of why that is true to be compelling – but it cannot be based on the suggestions above. It needs to be based on how true it remains that, in the words of that secular poet, “more than the Jew keeps the Shabbos, Shabbos keeps the Jew.”
    Hatzlacha Rabba,

  3. Shmuel Burstein says:

    Numbers 2 and 3 are very good, in my humble opinion.

    I also recommend you give a serious look at Erich Fromm’s book, “To Have or To Be.” He has a beautiful exposition on the singularly important role Shabbos has played in Jewish history, with attention to shopping/buying/ transfering. My Bantam Books edition of 1981 has the major thrust on pages 39-40. It is in the opening pages of the chapter, “Having and Being in the Testaments.” His language, as it often does, soars. He speaks on both the macro and micro levels. In the latter case he brings attention and meaning to some of the melachos in a way that sensitive, modern people (esp. those who love the environment) can relate to.

    His theme in this work is man’s need to find his sense of “being,” as opposed to chase “having.” By ‘shopping’ on Shabbos, one engages obviously in “having” – rather than utilizing the sanctity of Shabbos to focus on “being”. While Fromm abandoned Shmiras Shabbos later in life, he clearly cherished its message.

    Take a listen:

    “…It can hardly be doubted that the Shabbat was the fountain of life for the Jews, who, scattered, powerless, and often despised and persecuted, renewed their pride and dignity when like kings they celebrated the Shabbat… the re-establishment of complete harmony between human beings and between them and nature. Nothing must be destroyed and nothing must be built … a day of truce in the human battle with the world… On Shabbat one lives as if one has nothing, pursuing no aim except being, that is expressing one’s essential powers: praying, studying, eating…singing…” (He places “has” and “being” in this last sentence, in italics.)

  4. YF says:

    Make sure to read the Gavison-Medan Covenant which dealt with this issue.

  5. cohen y says:

    Whatever approaches you use,end off with ‘ the sum is greater than the parts.

  6. Bob Miller says:

    Shabbat laws on the books in today’s secular State of Israel derive from the Constitution of the Jewish people, namely, Torah from Sinai. Observing Shabbat is compliance with direct commands from G-d. Those who choose to ignore any or all aspects of Shabbat personally should still respect the historical association of Shabbat with the survival and success of the Jewish nation. Shabbat is far more central to Jewish identity than is a siz-pointed star on a flag.

  7. Michael says:

    In the Yehuda Avner’s recent book “The Prime Ministers,” there is a short but insightful chapter about Begin’s demands to the Knesset that El Al shut down their operations on Shabbos. He basically said that Shabbos is a gift to the Jewish people which the world adopted from us and how can the Jews themselves neglect their special heritage. If you can get your hands on the transcript of Begin’s remarks in the Knesset as recorded in the book, I think that’s a great place to start.

  8. lacosta says:

    don’t forget to tell them that there are shabbos wars in chutz laaretz too— neighborhoods where non-frum jews try to fight eruv construction eg; and their claim that the shommer shabbos people live down on them . i think this is in the book jew vs jew ; and one can google story after story of eruv opposition–both jewish and gentile [ as well as the recent florida condo jew vs jew story opposing a haredi minyan [ which violates condo regs] in a condo –and the stuermer type description of the hassidim by their non-frum neighbors….

  9. Yaakov Menken says:

    I don’t think it’s worth mentioning, though you should certainly know, that Ms. Hoffman began her public career representing Meretz on the Jerusalem City Council. Their political advertising included an orange map of Jerusalem, on which black dots and splotches were used to represent Orthodox Jews moving into “secular” neighborhoods — as if moving into such a neighborhood was inherently offensive. The most immediate parallel, of course, is the American South prior to 1964. The other similar case would be Der Sturmer of 1933, which one month had a similar map of Germany, with representations of the Jewish population in major cities, on its cover.

    I am quite certain that you, Ms. Schmidt, are aware that Ms. Hoffman represented the Women of the Wall for years, fighting tirelessly to turn the plaza, where Jewish law is observed, into something else at which Orthodox Jews can no longer pray. This, too, is probably not worth mentioning.

    But it is almost certain that Ms. Hoffman will point to various misdeeds of Charedi protesters when they felt their rights were being trampled upon, as when Teddy Kollek deliberately built large roads on the border of Charedi neighborhoods, in order to flaunt non-observance and limit the growth of those neighborhoods. This being the case, it’s probably worth turning the tables.

    Isn’t it interesting that the person asked to represent the cause of the abolition of any recognition of the Jewish Sabbath in the Jewish State, is on the payroll of Reform Judaism? Is this what Reform Judaism represents, encouraging public nonobservance, using tax dollars to pay for things which violate what is, to a significant portion of the taxpayers, their most dearly held values, and to deliberately place those who observe the Jewish Sabbath at an economic disadvantage? Is this how Reform Judaism is spending its money to transform the Jewish State?

    That is probably the most newsworthy thing with which these reporters could go home, something which their readers, many of whom are Reform Jews, almost certainly do not know.

  10. Ori says:

    A lot of the arguments here are excellent – if your audience already accepts the Orthodox definition of Jewish nationality. In other words, they are useful for teaching Halacha to the Levites(1). An analogy to a law that US reporters already know and support, the minimum wage.

    The reasoning behind the minimum wage(2) is that low skilled workers wouldn’t have the freedom to set the price of their labor anyway. If there was no minimum wage, they’d have to accept whatever pittance their employers would care to pay them. If you want to justify the Shabbat laws to a secular audience, use an analogy with it.

    (1) Jewish version of “preaching to the choir”
    (2) Without getting into whether this argument is valid or not

  11. Miriam says:

    Government coercion is at the heart of the debate here – while we can assert all day how valuable the Sabbath is for the Jewish heritage, and even a Jewish state, imposing it forcibly on individuals is where the opposition has a legitimate complaint.

    In absence of a Sanhedrin, what we want to see is a Jewish country that keeps some Jewish definitions on a predominantly voluntary basis. For example sale of chametz during Passover is against the law, but note that it’s more a sense of “tradition” is what keeps store owners in line (and consumers’ demands on hold), not the fear of a fine. Yom Kippur also – the country just shuts down even though a fair percentage will drive somewhere to enjoy some – relatively quiet – family time unrelated to the holiday.

    The country would be far better off if we had a sort of “mesorati” approach to the Sabbath – everyone knows it’s there and observes it in some way or other, ideally including a lessening of the shopping as well. But the unfortunate face of the politicians who represent the religious sector would not be satisfied to legislate a mere halfway-observance, or at least that’s the impression they give. (Which is ironic given the not uncommon stance of noncompliance with dina malchusa.)

    Personally I would try to distinguish between laws that set a tone on a national level and possibly also preserve group boundaries, versus those that invade the lives of individuals.

  12. Thomas Lowinger says:

    That 16% that work on Shaboss includes those that work in hospitals, electric power plants, water plants, various operations that must go 24/7 such as a steel mill and semiconductor plants etc. You cannot force people to observe laws they know nothing about and are generally uneducated about their heritage.

  13. cvmay says:

    Points 5 & 6 and the speech of Menechem Begin might open up minds to let in some light.
    Good luck.

  14. Jacob Suslovich says:

    I think you should acknowledge that you can understand the feelings of people who do not share your beliefs and also do not appreciate the social and practical value of Shabbos and therefore resent having your beliefs forced upon them. But on the other hand if, as your opponents will probably state, they are in favor of an open, pluralistic society, they must realize that compromise and accomadations to the sensibilities of other groups are needed if a pluralistic society is to keep from fractuing into warring factions. The statsu quo agreements reached when the State was fromed are not a capitulation to religious demansd. Theya re a compromise that allowed everyone to coexist. By advocating for a removal of the laws about public observance of Shabbos, your opponents are abandoning the poicy of coexistenc and seeking to promote their view at the expense of allowing others to feel that htye have aplce in the nation. It is they who are pursuing their agenda without regarad to the need to compromise.

  15. Ada Jacobowitz says:

    It might be worthwhile re/reading Bialikon Shabbat.
    See Bialik below.

    Bialik successfully intervened, for example, in the case of the photographer H. Orushkes, who kept his shop open on the Sabbath in downtown Jerusalem. It was Moshe Glickson, the editor of Ha’aretz, who prodded Bialik into action: He told Bialik to demand that his portrait be removed from Orushkes’ display window (Beit Bialik Archive, April 21, 1930). The photographer was quick to reply: “I received your letter and it spoke to me more than all the protests of the Orthodox Jews in Jerusalem. I have decided to close my photography shop on the Sabbath and holidays … and now I hope, sir, that you will no longer object to having your picture in my front window” (Orushkes to Bialik, April 27, 1930).

    On the subject of Sabbath observance, Bialik was also unsparing in his criticism of the kibbutzim and agricultural colonies, however dear they were to his heart. “It is the Sabbath, not the culture of oranges or potatoes, that preserved our people during its wanderings. Now that we have returned to the land of our forefathers, shall it be discarded like some worn out thing?” he wrote to M. Kushnir of Kibbutz Geva. “Eretz Yisrael will never be built without the Sabbath,” he went on. “It will be destroyed, and all your work will be for naught. The Jewish people will never give up the Sabbath, which is not only the keystone of Israel’s existence but of human existence. Without the Sabbath, there would be no godliness and no semblance of humanity in the world (“Letters of Hayim Nachman Bialik,” ed. F. Lachower, 1939

  16. Shira Schmidt says:

    8bAdar II, Sunday night. Today, as I was about to leave Netanya for the debate in Jerusalem,I received a phone call explaining that the debate was postponed indefinitely because Anat Hoffman was ill. Since I had already prepared a source sheet, I emailed it to the organizers suggesting they distribute it to the participants. I included in the source sheet many of the ideas in the comments above, plus the passage from Erich Fromm; the chapter on Begin’s grounding ElAl in favor of the Sabbath queen; the passage from Bialik (above); and the chapter from Livia Bitton-Jackson’s Holocaust memoir, where she describes the risks she and her teenage girl friends took to observe some aspects of Shabbat in the concentration and slave labor camps (“I Have Lived a Thousand Years,” pp. 157-161.) I also sent the journalist participants the link for this discussion so all the comments will eventually be of benefit.

  17. Mordechai Y. Scher says:

    Ehad HaAm’s short essay is a classic. I would look it up for future consideration.

  18. Charlie says:

    From McGowan vs. Maryland- the US Supreme Court finding Blue laws banning business on Sunday constitutional. Note some of these cases were brought by kosher butchers [not this one] who found business hurt when Blue laws forced their stores shut on Sunday and halacha mandated they be closed Saturday. However, the general principle that a day of rest is needed is as true for Israel if not more so [as a Jewish state that can for example allow minor forms of religious imposition i.e allowing Muslims to sell hametz during Pesach as an example and not Jews, etc. versus the US which totally seperates church and state and cannot do that but in which blue laws are constitutional]- you should note that it is interesting that the opposition to Shabbat laws in Israel is almost entirely secular Jewish and not Muslims arguing it hurts their economic interests in the same way shomer shabbos Jews had a very good case Blue laws hurt them in the states. Instead Shabbat laws promote a public degree of rest that everyone regardless of halahic observance can benefit from in the same way the courts held blue laws were constitutional in the US
    “[T]he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.”
    4 Bl.Comm. 63. A 1788 English statute dealing with chimney sweeps, 28 Geo. III, c. 48, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that “persons being eville minded, have presumed to employ in servile labor, more than necessity requireth, their servants. . . .” 3 Records of the Colony of Rhode Island and Providence Plantations 31. The New York law of 1788 omitted the term “Lord’s day” and substituted “the first day of the week commonly called Sunday.” 2 Laws of N.Y. 1785-1788, 680. Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed. Note, 73 Harv.L.Rev. supra at pp. 729-730.
    More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week’s work to come. In England, during the First World War, a committee investigating the health conditions of munitions workers reported that
    “if the maximum output is to be secured and maintained for any length of
    Page 366 U. S. 435
    time, a weekly period of rest must be allowed. . . . On economic and social grounds alike, this weekly period of rest is best provided on Sunday. [Footnote 11]”
    The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations, Note, 73 Harv.L.Rev. 730-731; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers’ Chamber of Trade, and the National Union of Shop Assistants. 308 Parliamentary Debates, Commons 2158-2159.
    Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation, and over forty possess a relatively comprehensive system. Note, 73 Harv.L.Rev. 732-733; Note, 12 Rutgers L.Rev. 506. Some of our States now enforce their Sunday legislation through Departments of Labor, e.g., 6 S.C.Code Ann. (1952), § 64 5. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted.
    Moreover, litigation over Sunday closing laws is not novel. Scores of cases may be found in the state appellate courts relating to sundry phases of Sunday enactments. [Footnote 12] Religious objections have been raised there on numerous occasions, but sustained only once, in Ex parte Newman, 9 Cal. 502 (1858), and that decision was overruled three years later, in Ex parte Andrews, 18 Cal. 678. A substantial number of cases in varying postures bearing
    Page 366 U. S. 436
    on state Sunday legislation have reached this Court. [Footnote 13] Although none raising the issues now presented has gained plenary hearing, language used in some of these cases further evidences the evolution of Sunday laws as temporal statutes. Mr. Justice Field wrote in Soon Hing v. Crowley, 113 U. S. 703, at p. 113 U. S. 710:
    “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.”
    While a member of the California Supreme Court, Mr. Justice Field dissented in Ex parte Newman, supra, at pp. 519-520, 528, saying:
    “Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct which the entire civilized world recognizes as essential to the physical and moral wellbeing of society. Upon no subject is there such a concurrence of opinion among philosophers, moralists and statesmen of all nations as on the necessity of periodical cessations from labor. One
    Page 366 U. S. 437
    day in seven is the rule, founded in experience, and sustained by science. . . . The prohibition of secular business on Sunday is advocated on the ground that, by it, the general welfare is advanced, labor protected, and the moral and physical wellbeing of society promoted.”
    This was quoted with approval by Mr. Justice Harlan in Hennington v. Georgia, supra, who also stated:
    “It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease.”
    Id. at 163 U. S. 304. And Mr. Chief Justice Fuller cited both of these passages in Petit v. Minnesota, supra.
    Before turning to the Maryland legislation now here under attack, an investigation of what historical position Sunday Closing Laws have occupied with reference to the First Amendment should be undertaken, Everson v. Board of Education, supra, at p. 330 U. S. 14.
    This Court has considered the happenings surrounding the Virginia General Assembly’s enactment of “An act for establishing religious freedom,” 12 Hening’s Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment’s meaning. See the opinions in Everson v. Board of Education, supra. I n 1776, nine years before the bill’s
    Page 366 U. S. 438
    passage, Madison co-authored Virginia’s Declaration of Rights, which provided, inter alia, that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience. . . .” 9 Hening’s Statutes of Virginia 109, 111-112. Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing “maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever” (emphasis added), were repealed, and all dissenters were freed from the taxes levied for the support of the established church. Id. at 164. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment. [Footnote 14] This hope was finally realized when “A Bill for Establishing Religious Freedom” was passed in 1785. In this same year, Madison presented to Virginia legislators “A Bill for Punishing . . . Sabbath Breakers,” which provided in part:
    “If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence. [Footnote 15]”
    This became law the following year, and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar
    Page 366 U. S. 439
    laws were in force in other States, when Madison stated at the Virginia ratification convention:
    “Happily for the states, they enjoy the utmost freedom of religion. . . . Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. . . . I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. [Footnote 16]”
    In 1799, Virginia pronounced “An act for establishing religious freedom” as “a true exposition of the principles of the bill of rights and constitution,” and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia’s statute banning Sunday labor stood. [Footnote 17]
    In Reynolds v. United States, 98 U. S. 145, the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon’s attack on a statute making bigamy a crime. The Court said:
    “In connection with the case we are now considering, it is a significant fact that, on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the legislature
    Page 366 U. S. 440
    of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, ‘it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.’ 12 Hening’s Stat. 691. From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”
    Id. at 98 U. S. 165. In the case at bar, we find the place of Sunday Closing Laws in the First Amendment’s history both enlightening and persuasive.
    But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment’s background proves helpful. The First Amendment states that “Congress shall make no law respecting an establishment of religion. . . .” U.S.Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part:
    “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
    (Emphasis added.) Annals of Congress 434. We are told that Madison added the word “national” to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United
    Page 366 U. S. 441
    States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment’s proscription of establishment may be found in that debate.
    In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, “no religion shall be established by law.” I Annals of Congress 729. Mr. Gerry “said it would read better if it was that no religious doctrine shall be established by law.” Id. at 730. Mr. Madison
    “said, he apprehended the meaning of the words to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . . He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform.”
    Id. at 730-731.
    The Amendment, as it passed the House of Representatives nine days later, read, in part:
    “Congress shall make no law establishing religion. . . .”
    Records of the United States Senate, 1A-C2 (U.S.Nat.Archives). It passed the Senate on September 9, 1789, reading, in part:
    “Congress shall make no law establishing articles of faith or a mode of worship. . . .”
    An early commentator opined that the
    “real object of the amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.”
    3 Story, Commentaries on the Constitution of the United States, 728. But the First Amendment, in its final form,
    Page 366 U. S. 442
    did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a “broad interpretation . . . in the light of its history and the evils it was designed forever to suppress. . . .” Everson v. Board of Education, supra, at pp. 330 U. S. 14-15. It has found that the First and Fourteenth Amendments afford protection against religious establishment far more extensive than merely to forbid a national or state church. Thus, in McCollum v. Board of Education, 333 U. S. 203, the Court held that the action of a board of education permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms to be contrary to the “Establishment” Clause.
    However, it is equally true that the “Establishment” Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U. S. 333; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.
    Thus, these broad principles have been set forth by this Court. Those cases dealing with the specific problems arising under the “Establishment” Clause which have reached this Court are few in number. The most extensive discussion of the “Establishment” Clause’s latitude
    Page 366 U. S. 443
    is to be found in Everson v. Board of Education, supra, at pp. 330 U. S. 15-16:
    “The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.'”
    Under challenge was a statute authorizing repayment to parents of their children’s transportation expenses to public and Catholic schools. The Court, speaking through MR. JUSTICE BLACK, recognized that “it is undoubtedly true that children are helped to get to church schools,” and
    “[t]here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State.”
    Id. at 330 U. S. 17. But the Court found that the purpose and effect of the statute in question was general “public welfare legislation,”
    Page 366 U. S. 444
    id. at 330 U. S. 16; that it was to protect all school children from the “very real hazards of traffic,” id. at 330 U. S. 17; that the expenditure of public funds for school transportation, to religious schools or to any others, was like the expenditure of public funds to provide policemen to safeguard these same children or to provide “such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks,” id. at 330 U. S. 17-18. [Footnote 18]
    In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that, as presently written and administered, most of them, at least, are of a secular, rather than of a religious, character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.
    Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general wellbeing of our citizens. Numerous
    Page 366 U. S. 445
    laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, weekend diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare, rather than one of mere separation of church and State.

  19. sarah shapiro says:

    Shira, is the paper you wrote for them available for the rest of us?

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