Gallagher v. Crown Kosher Super Market of Massachusetts, Inc, 11

• Citation: 366 U.S. 617,6 L.Ed.2d 536,81 S.Ct. 1122
• Decision Date: 29 May 1961
• Docket Number: No. 11,11
• Parties: GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants, v. CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC., et al
• Court: United States Supreme Court

366 U.S. 617

81 S.Ct. 1122

6 L.Ed.2d 536

GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants,

v CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC., et al.

No. 11.

Argued Dec. 7, 8, 1960.

Decided May 29, 1961.

Mr. Joseph H. Elcock, Jr., Boston, Mass., for appellants.

Mr. Herbert B. Ehrmann, Boston, Mass., for appellees.

Mr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER concur.

The principal issues presented in this case are whether the Massachusetts Sunday Closing Laws¹ violate equal protection, are statutes respecting the establishment of religion or prohibit the free exercise thereof.

Appellees are Crown Kosher Super Market, a corporation whose four stockholders, officers and directors are members of the Orthodox Jewish faith, which operates in Springfield, Massachusetts, and sells kosher meat and other food products that are almost exclusively kosher and which has many orthodox Jewish customers; three of Crown's customers of the Orthodox Jewish faith, whose religion forbids them to shop on the Sabbath and requires them to eat kosher food, as representatives of that class of patrons; and the chief orthodox rabbi of Springfield, as representative of a class of orthodox rabbis whose duties include the inspecting of kosher food markets to insure compliance with Orthodox Jewish dietary laws.

Crown had previously been open for business on Sunday, on which day it had conducted about one-third of its weekly business. No other supermarket in the Springfield area had kept open on Sunday. Since the Orthodox Jewish religion requires its members to refrain from any commercial activity on the Sabbath—from sundown on Friday until sundown on Saturday—Crown was not open during those hours. Although there is a statutory provision which permits Sabbatarians to keep their shops open until 10 a.m. on Sunday for the sale of kosher meat, Crown did not do so because it was economically impractical; for the same reason, Crown did not open after sundown on Saturday.

Those provisions of the law immediately under attack are in a chapter entitled 'Observance of the Lord's Day.' They forbid, under penalty of a fine of up to fifty dollars, the keeping open of shops and the doing of any labor, business or work on Sunday. Works of necessity and charity are excepted as is the operation of certain public utilities. There are also exemptions for the retail sale of drugs, the retail sale of tobacco by certain vendors, the retail sale and making of bread at given hours by certain dealers, and the retail sale of frozen desserts, confectioneries and fruits by various listed sellers. The statutes under attack further permit the Sunday sale of live bait for noncommercial fishing; the sale of meals to be consumed off the premises; the operation and letting of motor vehicles and the sale of items and emergency services necessary thereto; the letting of horses, carriages, boats and bicycles; unpaid work on pleasure boats and about private gardens and grounds if it does not cause unreasonable noise; the running of trains and boats; the printing, sale and delivery of newspapers; the operation of bootblacks before 11 a.m., unless locally prohibited; the wholesale and retail sale of milk, ice and fuel; the wholesale handling and delivery of fish and perishable foodstuffs; the sale at wholesale of dressed poultry; the making of butter and cheese; general interstate truck transportation before 8 a.m. and after 8 p.m. and at all times in cases of emergency; intrastate truck transportation of petroleum products before 6 a.m. and after 10 p.m.; the transportation of livestock and farm items for participation in fairs and sporting events; the sale of fruits and vegetables on the grower's premises; the keeping open of public bathhouses; the digging of claims; the icing and dressing of fish; the sale of works of art at exhibitions; the conducting of private trade expositions between 1 p.m. and 10 p.m.

These statutes do not prohibit Sunday business and labor by Sabbatarian observers so long as it disturbs no other person. However, this has been construed to forbid the keeping open of shops for the sale of merchandise. Commonwealth v. Has, 122 Mass. 40. Permission is granted by local option for the Sunday operation after 1 p.m. of amusement parks and beach resorts, including participation in bowling and games of amusement for which prizes are awarded. Special licenses for emergency Sunday work may be obtained from local officials.

Other provisions of the Massachusetts Sunday legislation make generally unlawful Sunday attendance or participation in any public entertainments except for those which are duly licensed locally, conducted after 1 p.m., and are in keeping with the character of the day servance.

Although there is a general bar of games and sports on Sunday, professional sports may be played between 1:30 p.m. and 6:30 p.m., and indoor hockey and basketball any time after 1:30 p.m.; amateur sports may be played between 2 p.m. and 6 p.m.; this is all subject to local option and no game may be conducted within one thousand feet of any regular place of worship except in a public playground or park. There are specific bans on auto racing, horse racing, boxing and hunting with firearms. And there are a number of additional exemptions from the general proscription. Golf, tennis, dancing at weddings, concerts of sacred music and the celebration of religious customs or rituals are all allowed on Sunday as are the operation of miniature golf courses and golf driving ranges after 1 p.m. Motion pictures may be exhibited after this hour if a local license is obtained. Parades with music for certain commemorative purposes may be held on Sunday by veterans', civic, fraternal, policemen's and firemen's organizations providing that they are suspended while passing within two hundred feet of public worship services.

Persons who keep places of public entertainment or refreshment lose their licenses if they entertain, on Sunday, people other than travelers, strangers or lodgers. With limited exceptions, discharging firearms for sport except on one's own land, fishing for commercial purposes, and fishing with nets or spears are prohibited on Sunday. The use of gaming devices is not allowed. Outdoor exercise without the element of contest is generally permitted as is the taking of mammals by means of traps. Heavier penalties are imposed for the willful cutting and destruction of timber, shrubs, fruits or vegetables on Sunday than on other days of the week.

Still other statutory sections make it a crime for most employers to require their employees to engage in ordinary occupation on Sunday unless the employee is allowed twenty-four consecutive hours off during the following six days. The sale of alcoholic beverages by certain licensees is permitted on Sunday after 1 p.m. by local option. However, patrons consuming the beverages on the premises must be seated at tables.

Appellees sought permanently to enjoin the enforcement of the statute against them, alleging that appellant, Springfield's chief of police, had previously arrested and prosecuted Crown's manager for keeping open on Sunday; that, unless restrained, appellant would continue to enforce the statute against Crown; that the statute was unconstitutional for the reasons stated above. The three-judge Federal District Court, one judge dissenting, agreed with appellees, 176 F.Supp. 466. On appeal brought under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, we noted probable jurisdiction, 362 U.S. 960, 80 S.Ct. 876, 4 L.Ed.2d 875.

I.

The equal protection arguments advanced by appellees are much the same as those made by appellants in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. They contend that the exceptions to the statute are so numerous and arbitrary as to be found to have no rational basis;² that the law permits the sale of certain food items sold by Crown but limits this permission to selected types of stores; that the employees in the exempted activities are just as much in need of a day of rest as are Crown's employees. The three-judge District Court described the present statutory system as an 'unbelievable hodgepodge' and sustained appellees' allegations.

The answers to these arguments are likewise similar to those given in McGowan when the contentions are examined under the standards set forth in that opinion. Many of the exceptions in the Massachusetts Sunday Laws are reasonably explainable on their face. Such items as tobaccos, confectioneries, fruits and frozen desserts could have been found by the legislature to be useful in adding to Sunday's enjoyment; such items as newspapers, milk and bread could have been found to be required to be sold fresh daily.³ It is conceivable that the legislature believed that the sale of fish and perishable foodstuffs at wholesale would not detract from the atmosphere of the day, while the retail sale of these items would inject the distinctly commercial element that exists during the other six days of the week. It is fair to believe that the allowance of professional and amateur sports on Dunday would add to the day's special character rather than detract from it. And the legislature could find that the circumstances attendant to the conduct of professional sports are sufficiently different from those of amateur sports to justify different treatment as to the hours during which they may be played. Furthermore, the legislature could determine that, although many retailers, including Crown, sell frozen desserts, to permit only a limited number of innholders, druggists and common victuallers to sell them on Sunday would serve the public purpose of providing these items on Sunday and, at the same time, limit the commercial activities ordinarily attendant to their sale. And, if such determination requires this limited...