Braunfeld v. Brown

For a discussion of the timeline of blue laws (or “Sunday Laws”), click here.

This was a 5/4 decision about Sunday laws and the free exercise clause. The question raised here is about a Pennsylvania “blue law” (or Sunday law). Recall that the Court tends to uphold Sunday laws. This was a case decided in the same year as three other Sunday law cases, including Gallagher v. Crown Kosher Super Market, McGowan v. Maryland, and Two Guys from Harrison-Allentown, Inc. v. McGinley.

Abraham Braunfeld owned a retail clothing and home furnishing store in Philadelphia. As an Orthodox Jew, he was prohibited by his faith from working on his Sabbath, which was Saturday. The Pennsylvania blue law only allowed certain types of stores to be open on Sunday, and Braunfeld’s was not one of those stores.

Braunfeld and several other merchants challenged the law, arguing that he needed to be open six days a week for economic reasons and was prohibited from doing so because the Pennsylvania law forced him to close on a day which was not his Sabbath. He also argued that the state was violating the Establishment Clause; when it choose Sunday as the day of rest, he argued, it was essentially endorsing Christianity. Moreover, he argued that the state was violating the Equal Protection Clause by treating him differently than those of other religions. His lawyers pointed out that while the Justices might ask why Braunfeld not take his issue up with the legislature, the reality was that the legislature had little reason to accommodate minority religions.

In a 5/4 decision, the Court held that the PA blue law did not violate the Free Exercise Clause, because it had a secular basis; there was a good reason (a reasonable basis) for the legislature to require a day of rest, or a day which people commonly took off, aside from religious purposes. It was merely due to tradition that the day happened to be Sunday.

There was an indirect burden on religious observance, but the law was constitutionally valid, because the state could not accomplish its goal of providing a uniform day of rest for all through other means.

Chief Justice Warren wrote the opinion, and Justices Black, Clark, and Whittaker concurred.

Frankfurter wrote a separate concurrence, concurring with most of the decision, although dissenting one point (described below). His separate concurrence also provided a lengthy and very thorough outline of the history of Sunday laws in the U.S., noting that their original purpose was clearly to promote religion, but as time went on, secular purposes began to outweigh religious motivations. For example, he noted, labor activists were in favor of a day of rest, to prevent employers from insisting that employees work seven days a week. (Though, as others have noted, this interest could be achieved by the legislature by putting limits on working hours or mandating overtime pay.)

Brennan dissented. He agreed with the majority that Braunfeld’s claims based on the Equal Protection Clause and on the Establishment clause were without merit. However, he argued–strongly–that “the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.” In other words, the Court was incorrect to emphasize the interests of society, and rule that they outweighed the interests of an individual, since the whole point of the First Amendment is to protect individual rights.

Moreover, the burden that Braunfeld faced was not insignificant; according to Brennan, the evidence was clear that Braunfeld was likely to lose his business.

According to Brennan, the state had to show not merely a “rational basis” for the law, but a “compelling reason”–it was one thing to use a rational basis standards for (for example) judging restrictions placed by public utility companies (on digging, etc.), but quite another to use such a low threshold for a fundamental right such as the free exercise of religion. As Brennan put it, “religious freedom–the freedom to believe and to practice strange and, it may be, foreign creeds–has classically been one of the highest values of our society.”

He noted that the admittedly these laws do not require “overt affirmation of a repugnant belief,” as did Barnette, nor did they “prohibit outright any of appellants’ religious practices,” as did Reynolds. But the effect was just as problematic–Braunfeld had to make a choice between observing his Sabbath (a central belief) and following the law., and choosing the former quite possibly meant losing his business. Brennan also pointed out that 21 of the 34 states that had Sunday laws also had exemptions for people such as Braunfeld, and that the state had failed to show that there were negative consequences to offering those exemptions.

Justice Stewart also dissented, agreeing with Brennan on all points, and writing that “Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. . . for me, this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness.”

Douglas dissented, submitting the same dissent he wrote for the establishment clause case of McGowan v. Maryland, which raised a similar question, but (since it involved a secular department store that was fined for selling certain items on Sunday, was considered an Establishment Clause case. (Douglas was the only dissenter in McGowan.

Harlan concurred that the statute did not violate the Establishment Clause or the Equal Protection Clause, but dissented from the remainder of the opinion, arguing that the law did violate the free exercise clause.

Frankfurter concurred with most of the decision, writing a lengthy concurrence which was used for the four Sunday law cases, arguing that the Sunday laws did have a substantial non-religious purpose. His only point of departure from the minority opinion is that he argued that in McGowan, the appelants‘ claim that the law was irrational and arbitrary should not have been dismissed for failure to state a claim, but should have been permitted to proceed to an evidentiary stage.

Note that the McGowan case was decided 8-1; Douglas was the only dissenter. The cases of Braunfeld and Gallagher were closer, with Braunfeld decided on a 5/4 margin, and Gallagher decided on a 6/3 margin (Justice Frankfurter agreed with the Court in Gallagher, but concurred in part and in part dissented in Braunfeld, but the difference was relatively minor–in Braunfeld, he concurred in most of the majority decision, but he agreed with the appellants that their claim that the law was irrational and arbitrary should not have been dismissed for failure to state a claim, but should have been permitted to proceed to an evidentiary stage.<

Note that the McGowan decision was an 8-1 decision (Douglas was the only dissenter), whereas the Gallagher and Braunfeld decisions were closer (6/3 and 5/4, respectively.) This suggests that in the context of Sunday laws, the Court was more sensitive to claims based on free exercise than to establishment clause claims.

Note: in class, the point was made that if the Justice took what would become the Brennan approach, and made exemptions to otherwise neutral laws, this would give Orthodox Jews an economic advantage. Indeed, Warren made the same point in the majority opinion in the Braunfeld decision: “To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day; this might cause the Sunday observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This may make necessary a state-conducted inquiry into the sincerity of the individual’s religious beliefs, a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees.”

That said, Brennan himself would not object to overturning the Sunday law entirely; making exemptions to a Sunday law was likely not his first preference. In the case of other laws, to which he favored exemptions for those with religious beliefs, the laws tended to be arguably representing a compelling interest on the part of government–things like compulsory school attendance until age 15, or refusing unemployment insurance for people who quit or were fired for refusing to work.