366 U.S. 582 (1961), 36, Two Guys from Harrison-Allentown, Inc. v. McGinley

Docket Nº:No. 36
Citation:366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551
Party Name:Two Guys from Harrison-Allentown, Inc. v. McGinley
Case Date:May 29, 1961
Court:United States Supreme Court

Page 582

366 U.S. 582 (1961)

81 S.Ct. 1135, 6 L.Ed.2d 551

Two Guys from Harrison-Allentown, Inc.



No. 36

United States Supreme Court

May 29, 1961

Argued December 8, 1960




Appellant, a corporation operating a large discount department store located on a highway in a suburban section of Lehigh County, Pa., sued in a Federal District Court to enjoin enforcement of certain Pennsylvania Sunday Closing Laws, claiming that they were unconstitutional and that the County District Attorney was discriminating against it. One was a 1939 statute which prohibited all worldly employment or business on Sunday, with narrowly drawn exceptions, on penalty of a fine of $4 or 6 days' imprisonment. The other was a supplementary statute enacted in 1959 which forbade the retail sale on Sunday of 20 specified commodities, on penalty of a fine of up to $100 for the first offense and up to $200 for subsequent offenses within a year or imprisonment for 30 days in default thereof. There were many other Pennsylvania Sunday Laws which prohibited specific activities on Sundays or limited them to certain hours, places or conditions.


1. Since the relief sought was prospective only, the term of office of the District Attorney was about to expire, and appellant's employees could defend against any pending prosecutions on the ground of unconstitutional discrimination, the District Court did not err in refusing to exercise its injunctive powers at that time against alleged discriminatory enforcement by the County District Attorney. Pp. 588-589.

2. The District Court did not abuse its discretion in declining to pass on the constitutionality of the 1939 statute, on the grounds that there was no imminent threat of appellant being prosecuted under it and that there was a substantial unsettled question of Pennsylvania law as to whether it had been superseded by the 1959 Act as to the specific commodities covered by the latter. P. 589.

3. The District Court did not abuse its equity power in refusing to continue a preliminary injunction against enforcement of the 1939 statute against appellant, since there was no imminent threat of prosecution. P. 589.

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4. The 1959 Act does not violate the Equal Protection Clause of the Fourteenth Amendment. McGowan v. Maryland, ante, p. 420. Pp. 589-592.

5. Since appellant alleges only economic injury to itself, it has no standing to raise the question whether the statute here involved prohibits the free exercise of religion; but it does have standing to raise the question whether it is a law respecting an establishment of religion, within the meaning of the First Amendment. McGowan v. Maryland, supra. P. 592.

6. In the light of a careful examination of the entirety of the present legislation, the relevant judicial characterizations, and, particularly, the legislative history leading to the passage of the 1959 Act here involved, that Act is not a law respecting an establishment of religion within the meaning of the First Amendment. McGowan v. Maryland supra. Pp. 592-598.

7. This Court rejects appellant's contention that the State has other means at its disposal to accomplish its secular purpose that would not even remotely or incidentally give state aid to religion. McGowan v. Maryland, supra. P. 598.

179 F.Supp. 944 affirmed.

WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

The primary questions presented in this case are whether a Pennsylvania statute enacted in 19591 which

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makes unlawful the Sunday retail sale of certain commodities, imposing a fine of up to one hundred dollars for the first offense, is violative of the constitutional guarantees of equal protection of the laws and religious freedom.

This case is essentially the same as McGowan v. Maryland, ante, p. 420. The major differences between the Pennsylvania and Maryland Sunday Closing Laws concern the specific provisions for exemptions from the general proscription of Sunday sales and activities. The religiously oriented backgrounds of both the Maryland and Pennsylvania statutes are strikingly similar, although the Pennsylvania colony never had an established church, while one did exist for a time in Maryland. While the pronouncements of the Supreme Court of Pennsylvania indicate that it disclaimed a religious purpose for Sunday closing at an earlier date than did the Maryland Court of Appeals, 220 Md. 117, 151 A.2d 156, later Pennsylvania decisions returned to religious purpose language, while the Maryland opinions consistently rested on secular bases. On the other hand, the legislative history of the most recent Pennsylvania Sunday provisions is more striking than that

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of the Maryland laws in providing support for the position that temporal considerations preoccupied the State Legislature.

[81 S.Ct. 1137] Appellant is a corporation which operates a large discount department store located on a highway in Lehigh County, Pennsylvania. For some time prior to the instant litigation, McGinley, the County District Attorney, prosecuted a number of appellant's employees for violating 18 Purdon's Pa.Stat.Ann. § 4699.4, a section of the Pennsylvania Penal Code of 1939.2 This statute, with certain exceptions, generally forbids all worldly employment, business and sports on Sunday. Works of charity and necessity are excepted, as is the delivery of milk and necessaries before 9 a.m. and after 5 p.m. Two recent amendments also except wholesome recreation (defined as golf, tennis, boating, swimming, bowling, basketball, picnicking, shooting at inanimate targets and similar healthful or recreational exercises and activities) and work in connection with the rendering of service by a public utility. Violations of this section carry a penalty

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of four dollars. Appellant then sought an injunction in the court below to restrain the District Attorney from enforcing this statute against it, alleging that the statute was unconstitutional for the reasons stated above and because the District Attorney was discriminating against appellant in enforcing the law. Accordingly, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. Before trial, the Pennsylvania Legislature enacted the 1959 provision and appellant amended its complaint to include it, alleging that the District Attorney was threatening to enforce it against appellant.

Although appellant challenged only the statutory sections mentioned above, in order to properly consider appellant's contentions, the whole body of Pennsylvania Sunday Laws must be examined.3 Among the other activities prohibited on Sunday by these Pennsylvania statutes are selling of motor vehicles and trailers, operation of pool rooms or billiard rooms, conduct of boxing or wrestling matches, harness racing, pawnbrokering, contests for retrieving dogs, catching of fish in the Delaware River by use of a net, and extension education in public school buildings. The Sunday exhibition of motion pictures is permitted only after 2 p.m., and then only if the voters in each municipality approve; however, religious motion pictures may be shown by churches at any time providing they are shown within church property and no admission price [81 S.Ct. 1138] is charged. Baseball, football and

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polo receive similar treatment except the permitted hours are between 1 p.m. and 7 p.m. Public concerts, of music of high order, though not necessarily sacred, may only be performed after noon.

The off-the-premises sale of alcoholic beverages on Sunday is disallowed, but private clubs may sell alcoholic beverages to their members on Sunday, as may hotel restaurants between 1 p.m. and 10 p.m. in first- and second-class Pennsylvania cities if the voters in those cities so choose. Municipalities and third-class Pennsylvania cities have statutory authority to restrain desecrations of the Sabbath day; one statutory section simply empowers various judicial officers to punish persons who profane the Lord's day. Barbering and beauty culture work on Sunday subjects the actor to license revocation. Male prisoners may not perform manual labor on Sunday, and bakery employees are not permitted to commence working on Sunday before 6 p.m.

The statutes generally proscribe hunting and shooting on Sunday, but make an exception for the removal of fur-bearing animals from traps. Sunday fishing from public lands or in public waters is permitted, but not on private property without the consent of the owner. Also banned is the training of dogs except with the permission of the owner upon whose land the activity is undertaken.

The court below, although finding that McGinley threatened to enforce the 1959 Act against appellant's employees, denied appellant the injunctive relief sought, dismissing appellant's constitutional objections that the 1959 statute was a law respecting an establishment of religion, that the statute preferred one religion over others and that...

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