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Posted by Michael Peabody / February 7, 2022

On Monday, January 24, 2022, the Virginia state senate voted 29 to 11 (SB8) to allow people to hunt on Sundays on public or private land, so long as it takes place more than 200 yards from a place of worship.

Virginia’s ban on Sunday hunting is one of the last remaining “blue laws,” a relic of colonial times when governments passed laws prohibiting various commercial and entertainment activities to encourage religious observance. Until 2014, Virginia had prohibited hunting on private land on Sundays, but the ban on hunting on public lands on one of the two days of the weekend has remained in place.

Virginia’s ban on Sunday hunting on public land is not without quirks. It allows for shooting at targets and waterfowl but not other animals except for unfortunate raccoons, who can be hunted until 2:00 a.m. Virginia explains their Sunday hunting rules in more detail on this website. Whether the governor will sign the law permitting Sunday hunting remains uncertain. A

Survey of the Trending Discussion

While blue laws have been declining for years, there is a quiet push to bring left and right together to give Americans a weekly break. The reasoning is that if people, particularly those who work hourly schedules, can all take a weekly break simultaneously, they can spend more time with their families or enjoy some stress-free relaxation.

From the left, some have begun promoting a four-day workweek. On January 9, Damon Linker, a columnist for The Week, tweeted, “If you want to pass a law to give everyone at least one day off per week, I have no objection. But why say this

has anything to do with “the sabbath” when only about 25% attend services weekly? Or is the idea that people will use the time to return to the pews? I doubt it.”

In response, the same day, Jeet Heer, a columnist for The Nation, tweeted, “Elevator pitch: a secular Sabbath that starts on Thursday evening. This will create a 4-day work week and also preserve religious neutrality.”

On the right, Sohrab Ahmari wrote a piece in the Wall Street Journal titled “What We’ve Lost in Rejecting the Sabbath,” published on May 7, 2021. He tweeted about it again on January 9, 2022, saying that this article was his “argument … for restoring America’s blue laws and Sabbatarian tradition.”

Then, on January 11, 2022, Ahmari wrote in The American Conservative: “A campaign for the Sabbath can bring together labor unions, religious conservatives, and small-business owners (that last group historically opposed abolishing blue laws for lack of ability to compete). Can any other issue unite three core constituencies of the new right quite like Sabbath?” Amari notes that “Americans carved out a day of rest and worship going back to the colonial era, not just in Puritan New England, but even in New Amsterdam and Virginia.”

Joel Mathis, writing for the left-leaning publication, The Week, observed the conversations about blue laws. He concluded that “if the right and left can agree on anything these days, maybe it’s that workers should get a day off now and then.”

That society can shut down and function during a mandatory rest period was proven during the early months of the COVID-19 pandemic when all but “essential” services ceased in many jurisdictions. This has not gone unnoticed by the Green Sabbath Project, an interfaith environmental organization that advocates for voluntary observance of a weekly day of rest. The Green Sabbath Project calls people to take a weekly day of rest and “Make it real sabbath. For you. For earth. Don’t drive. Don’t shop. Don’t build.”

According to the Project’s website, “Whether commemorated as a secular, spiritual or religious act, green sabbaths properly practiced offers a weekly investment in family and local community, a weekly interruption of the suicidal econometric fantasy of infinite growth, a weekly divestment from fossil fuels, a

weekly moment of rewilding. As Greta Thunberg reminds us, we already know what the solutions are for our environmental crises.”

Are Blue Laws Constitutional?

In 1961 the Supreme Court ruled 8-1 that a Maryland blue law did not violate the Establishment Clause because it had a predominantly “secular” purpose even though it was initially designed to promote church attendance, and did not violate the Free Exercise rights of employees who were restricted from selling particular merchandise on that day.

It may seem that there are apparent constitutional problems with Sunday blue laws designed to promote church attendance. But in 1961, the U.S. Supreme Court considered the issue in McGowan v. Maryland, a case brought by employees of a discount department store who Maryland fined for selling items prohibited from selling on Sundays, including floor wax and loose-leaf notebooks. Maryland’s laws only allowed certain things like medications, tobacco, newspapers, and food to be sold on Sundays.

The employees said it violated their rights under the Free Exercise Clause. Still, the Supreme Court found that they only alleged economic injury, not an infringement on their religious practices. Even though blue laws historically aimed to promote church attendance, they were now based on secular reasons to improve “health, safety, recreation, and general well-being.” The Maryland law provided the same day of rest for everyone, and the fact that it was significant for Christians did not mean the state could not use it to meet secular goals. The Court noted that the law did not constitute an establishment of religion. (You can read the decision and listen to the oral arguments in McGowan here: https://www.oyez.org/cases/1960/8 )

Justice Earl Warren, writing for the McGowan majority, wrote, “the State seeks to set one day apart from all others as a day of rest, repose, recreation, and tranquility – a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.”

He then wrote, “It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion.”

Using the Levers of the State

Writing for the conservative National Review, “Some Notes of Caution about Reviving Blue Laws,” on January 18, Tal Fortgang, a Jewish community member, expressed his concerns while noting the value of weekly rest. He described the differences in religious faiths that worship on Saturday instead of Sunday and recommended that persuasion rather than force was the way to bring about a day of rest, “[W]e can all demonstrate the value of Sabbath observance, of church attendance, of living lives that, in the aggregate, would make our society much healthier. We do so by engaging with the culture even when it is hostile, showing that adherents to a traditional moral code are unlikely to suffer those modern plagues of alienation and aimlessness. Once we have primed the culture, then we can think about using the levers of the state.” (Emphasis added.)

Steven Greenhut, writing in the Orange County Register on January 20 in a piece titled, “Modern Pharisees think government creates virtue,” notes some pitfalls of blue laws, which can create an underground economy. “Instead of promoting virtue, they become a means by which special interests – such as small businesses and beer distributors – abuse the legislative process to limit competition.” He writes, “Mandating that businesses close Sunday won’t do anything other than reduce jobs and give the rest of us fewer opportunities to go shopping and live our lives as we choose.”

While existing blue laws that specifically prohibit things like Sunday hunting may be disappearing from the books, there is a movement afoot to reintroduce the concept of a standard mandatory day of rest in ways that appeal to people across the political divide. The idea of using mandates to achieve goals for “the common good” has been seeing a resurgence in recent months. Modern approaches to blue laws are couched in secular terms and appear neutral on their face, yet they harken back to a religious tradition that has persisted in the West longer than it has been absent. Students of history would do well to 
recognize this trend and remember what happened to dissenters from mandatory Sunday rest in the past.

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