July 9, 1896
THAT Sunday is primarily a religious institution nobody will deny.
In the case of Hennington vs. the State of Georgia, 677 the Supreme Court of that State said:—
With respect to the selection of the particular day in each week which has been set apart by our statute as the rest day of the people, religious views and feelings may have had a controlling influence. We doubt not that they did have; and it is probable that the same views and feelings had a very powerful influence in dictating the policy of setting apart any day whatever as a day of enforced rest.
But notwithstanding this admission, the Georgia court, as our readers know, sustained the statute on the ground that it could “fairly and rationally be treated as a legitimate police regulation.” In reviewing the case the Supreme Court of the United States, as our readers are also aware, adopted both the reasoning and the conclusions of the State court, thus sustaining a confessedly religious statute, Justices Fuller and White only dissenting.
Let us analyze this confession of the religious origin and character of Sunday laws, and see just what is admitted by the high tribunals making it. (1) “Religious views and feelings” had “a controlling influence” in selecting the day of rest. (2) The same views and feelings “had a very powerful influence in dictating the policy of setting apart any day whatever as a day of enforced rest.”
It is difficult to see how, in the face of such admissions, any court could hold, as did the Supreme Courts of Georgia and of the United States, that a Sunday statute is “a legitimate police regulation.”
Enforced Sunday rest can have no justification except on the hypothesis that Sunday labor is immoral; and such labor can be held to be immoral only on the ground that it is irreligious. But it ought not to require any argument to show that no such question can become “a legitimate” subject of “police regulation.” It is to be feared that the same “religious views and feelings” which confessedly “had a controlling influence” in the making of the Georgia Sunday statute had a like influence in sustaining it in the State and Federal courts.
The police power is “hard to define,” but it will be admitted that it has its limitations. A law writer of some note has well said of this power that it is “unquestionably limited to the prevention of interference by one man with another.” 678 “The fact,” continues the same author, “that a man’s conduct, his behavior, or his manner of living, may be unwise, in view of his own position, or his health, and may result in injury to himself alone, physically or morally, affords no ground whatever for the interference of the ‘police power’ with his proceedings. It is settled that the State may compel an unwilling citizen to be vaccinated. But on what ground? Now because if he remains unvaccinated, he would be liable to catch the smallpox; nor yet because if he did catch it, he would probably die; but solely because his unvaccinated condition renders him specially liable to become a source of contagion to others. This is an extreme case. But beyond this the police power certainly could not go in this country. It could not, for example, compel a man with a weak back to wear a porous plaster, a man with caries to submit to amputation, a man with dyspepsia to take exercise, or a tired man to rest, because the suggested proceeding may be an advisable one in each case for the individual’s own interst.”
These observations are so apt and the truth stated so evident and the application of the principle to Sunday legislation so easy, that but for the exceedingly potent “religious views and feelings” to which Sunday statutes owe both their existence and maintenance, they must certainly ere this have been relegated to that period of the world’s history when “the church” was supreme over the State and the Pope set up and deposed kings at his will.
The opinions of both the courts to which we have referred 679 make mention of the “health” of the people as guarded by compulsory Sunday rest, but the idea is absurd. Even if it were demonstrated that a regular weekly period of rest was essential to health, it certainly could not be shown that that rest could not be had just as well on some other day as on Sunday. It is a fact that about one million persons in the United States do not take this rest in the United States do not take this rest upon Sunday, but upon the seventh day of the week; and they are not only not more unhealthful than those who rest on Sunday, but they are on an average actually even more healthful, but, it must be admitted, from causes quite aside from their weekly rest.
As we have seen in the very outset of this article, the Supreme Courts of the State of Georgia and of the United States of America, both confess the religious character of Sunday laws; but it may be of interest to add some additional testimony to the same effect. Says Mr. Tiedeman: “The most common form of  legal interference in matters of religion is that which requires the observance of Sunday as a holy day. In these days the legal requirements do not usually extend beyond the compulsory cessation of labor, the maintenance of quiet upon the streets and the closing of all places of amusements; but the public spirit which calls for the compulsory observance of these regulations is the same which in the colonial days of New England imposed a fine for an unexcused absence from divine worship. Although other reasons have been assigned for the State regulation of the observance of Sunday in order to escape the constitutional objections that can be raised against it if it takes the form of a religious institution, those who are most active in securing the enforcement of the Sunday laws do so because of the religious character of the day, and not for any economical reason…. The effectiveness of the laws is measured by the influence of the Christian idea of Sunday as a religious institution.” 680
In like manner Judge Cooley remarks that “it is clear that these laws are supportable on authority notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week.” 681
Scores of authorities and of cases might be cited to prove that which is so patent in the Georgia case that it would be readily seen, even had the State and Federal courts not both admitted it, namely, that Sunday laws originate in, and are sustained by, “religious views and feelings,” and that they are therefore “civil” only in the sense that they are made a part of the legislation of the State. A State “law” requiring the subject to be baptized or to partake of the Lord’s supper, or to do any other religious act, would be “civil” in just the same sense.
The idea that “religious views and feelings,” where strong enough and held by a sufficiently large number of the people, can be crystallized into civil statutes and be enforced upon all the people by the civil power, is utterly subversive of the principles of both civil and religious liberty. It ignores and even practically denies the existence of natural rights, and casts to the winds constitutional guarantees of freedom of conscience, which, to be of any value, must carry with it freedom to act in accordance with the dictates of conscience. To say that a man is free to believe as he will, means nothing unless he is also free to act upon his faith, limited not by the faith of the majority, but by the equal rights of his fellowmen, be they many or be they few.
But mischievous as is this idea which subordinates the individual conscience to the will of the majority, or to the will of those having control of legislation and of the courts, it has in this Georgia case been fully adopted by the Supreme Court of the United States as it was adopted and declared by a United State Circuit Court, in the King case, in Western Tennessee, August 1, 1891.