TWO GUYS v. MCGINLEY

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Argument of Harold E. Kohn

Chief Justice Earl Warren: Two Guys from Harrison-Allentown Incorporated, Appellant, versus Paul A. McGinley, District Attorney, County of Lehigh, Pennsylvania, et al.

Mr. Kohn.

Mr. Harold E. Kohn: Chief Justice, may it please the Court.

I feel most unfortunate that I waited a long, long time for the opportunity of coming before this Court.

I find the two-case in which I'm going to argue, the arguments are anticipated.

Yesterday, the argument I intended to present on Monday, the antitrust case was anticipated and today Mr. Berger I think began the argument of my case sometime before I got here.

So that I may have to digress for a moment from the argument that I had intended to give and clear what I think it has to be cleared by way of the record before we begin here.

In the first place, in our case which was begun before the 1959 Act was passed, we challenge the old 1794 Act which had become a part of the Criminal Code when all of Pennsylvania criminal laws were codified in 1939.

The Attorney General, in his brief, at page 3 is quite clear on that and says that there are two statutes involved here - one, the old 1794 Act and the other the 1959 Act.

Now, --

Justice John M. Harlan: What about the old statute?

Mr. Harold E. Kohn: The old statute is still there.

I may say this too sir that, we had evidence in our case partly for the purpose of preventing amateur theologian on this side of the bar from giving you what might not be actually the correct theology.

And let me perhaps explain just what Sunday and what Saturday is and to remind you what sometimes people do forget.

It's once again, like the burner that Justice Frankfurter was interested in seeing yesterday.

Saturday began as a religious day of rest in the Old Testament.

You have it of course first write in Genesis at the very beginning and then very emphatically incorporated as part of the biblical law in the Ten Commandments and elsewhere throughout the Old Testament.

Sunday has nothing whatsoever to do with that concept.

Sunday and Saturday, insofar as the quarrel is concerned or the theological dispute, is not a quarrel as to which is the day of rest.

In other words, is the seventh day of the week Saturday or is the seventh day of the week Sunday, and this is all in the evidence which was produced below and not challenged by any contradictory evidence on the part of a commonwealth and by no witness on the other side.

About 300 years after the resurrection when there had become a number of Christian communities which sprang from the Roman or the Gentile or pagan origin as distinguished from those which sprung from Jewish origin and after Constantine and the story we're all familiar with when in this sign he conquered and decided that he was going to make Christianity the state religion.

The first thing he did was to pass a law which made Sunday, this was in 320, Sunday, which had been forever -- and has been since forever commemorated as the day of the resurrection not the day of rest, a holy day and a state enforced holy day.

Now, what did he do in order to make it enforce as a state holy day.

He took from the Jewish religion with which people were familiar that form of observance which traditionally and now for 4,000 years, I mean it's in the blood and the bone as a method of celebrating a religious event.

He took that which was the most solemn way of observing a religious holy day refraining from work.

Traditionally, among the Jewish people, that Sabbath was the holy day.

In Yom Kippur, which is for all Jews who have any religious observance at all the most sacred day of the year, the most important injunction even more important actually than fasting is the refraining from work, and we quote in our brief the admonitions in the bible that not only must I refrain of my man servant, my maid servant, the people in my house and even the animals are forbidden to work on that day in the Jewish community.

So that you had a combination really of two things - You had the enforcement of the pivotal doctrine in the Christian religion, namely, the resurrection observed by state compulsion through that which traditionally among the Jewish people have been the way of showing the greatest respect, namely, refraining from work.

I read Justice Holmes who said that page of history I think is worth the volume of logic and you just can't throw out of the window as the City Solicitor sought to do some 4,000 years of Jewish history and some 1,600 years of Christian and western history.

Judge Hastie in his opinion below recognized that all of our Sunday laws are part and parcel of the same thing.

Our expert witness has said pretty much along the line, I think Mr. Justice Black mentioned yesterday, it doesn't make any difference what form of words you put it in, when you tell people they cannot work on Sunday in the Judeo-Christian civilization in which we live, they know, if they give any heat to the matter, that you are enforcing respect for a religious doctrine.

Now, that we think is forbidden regardless of whether you approach it through Mr. Justice Frankfurter's point of view or Mr. Justice Douglas and Mr. Justice Black's point of view, because whether it be the First Amendment incorporated into the Fourteenth or whether it be those fundamental liberties with which we are so much concerned which are guaranteed to us by the Fourteenth, the answer comes out the same way.

You have the enforcement of a religious doctrine by the state.

Now, Judge Hastie, when he discussed this matter in the court below, and if you refer to my brief, it runs through from pages 9 to 12 where he made a number of findings which were never challenged, there was no countervailing evidence whatsoever, pointed out very clearly what kind of day Sunday is.

At page 10, for example, “Sunday is the day designated for religious services and observances by Christian and so on.”

He pointed out that Sunday work, so far as health, rest, etcetera are concerned, is no different as work from work on any other day.

As a matter of fact, the commonwealth conceded it.

In our case there was an express admission of that in the pleadings and at the hearing and the judge may define and dictated by the -- by the record.

I must say, as I say, these are findings of fact.

Now, in the next sentence or the next paragraph on page 10, the judge there did what I think anybody must do comes to an examination of the subject.

He considered all of the Pennsylvania statutes together and pointed out how there were a number of exceptions to the original 1794 Act which have carved out a piece here and carved out a piece there, quite obviously, because they were not interested in keeping Sunday the day of rest but in keeping Sunday as a symbolic day of devotion to the doctrines of a Christian religion, and you can preserve the symbol even though you erode from it many of the practical work a day aspect as long as you keep as I say the symbol.

Now, there are times when keeping the symbol does affect people adversely either practically or in their liberty or in their pocketbook as it does in the case of the Two Guys from Allentown, which is the store that we represent in this case.

He also points out it in the finding of facts which I quote on page 12 that the commonwealth of Pennsylvania has enacted a pattern of economic laws under the police power which regulate hours of work which operate completely independently of the Sunday laws.

Now, once again, our employees are unionized.

They don't work more than six days a week.

If John Wanamaker had decided that it is going to fight tooth and nail, the union which wants to have a six-day week and they are not unionized, you don't get round that very practical economic problem by this kind of Sunday legislation.

You can have all of these Sunday statutes enforced to the hill and they are enforced and I think that's one of the vices of the Sunday legislation quite spasmodically and irregular -- irregularly and for sometimes not very fine or noble purposes.

You could enforce it to the hill and you wouldn't keep people from working seven days a week.

Does the man can work in a covered occupation six days and then go to the exempted occupation on the seventh?

Now, if you want to keep people from working seven days a week, you can do it so very easily by simply providing in a statute that they cannot work seven consecutive days and that statute is very easily enforceable.

We all know that the 40-hour-week for example is very, very rigidly enforced and if you can force -- if you can enforce a law which permits a man to work six hours in one day, eight hours another day, 10 hours at third, three hours the next as long as they don't add up to more than 40 hours at a week, you can certainly enforce this kind of law, which says that a man cannot work for 12 consecutive hours or 24 consecutive hours.

I don't think it's any problem on that score at all, and even if there were, I think it's entirely different from saying that because of that administrative problem you can pass legislation which has this, I think, very important symbolic content for our society as a whole.

And I think even a Christian could come in and complain about a law which compel him to refrain from work on Sunday or to go to church on Sunday even if seventh day Sabbatarians and everybody else were accepted, and I know that the seventh day, the men feel very strongly about that and they would --

Justice Hugo L. Black: May I ask you if your argument leads up to the point that it would be impossible even though a state may have a right to set aside when they have read, it's impossible to set aside Sunday because of its religious significance?

Mr. Harold E. Kohn: In all -- beside I think that is correct, and I think in answer to -- I think it was a question asked by Justice Whittaker and I think Justice Harlan, I would say you have to go even -- it's not necessary in our case.

But I think we do have a very basic constitutional issue here which I think should be discussed by counsel frankly and candidly.

I would say you can pick no day.

If you're going to pick a fixed day which will accomplish the purpose constitutionally that the proponents of Sunday legislation say they have in mind.

If you pick Sunday, then you have the people, quite sincere people like the Braunfeld plaintiffs and Crown Kosher plaintiffs coming in and saying, “Well, yes maybe it doesn't hurt me very much but it does hurt me.”

And there's no reason why they should be hurt if the purpose can be accomplished otherwise.

If you pick Saturday, the Christians have a perfect right to complain.

If you pick any other day in the week, then anybody who must observe by his dictates of his own religion, Saturday or Sunday has every reason to complain, and there's no necessity for picking any particular day.

You can pick, you can do just what I said, you can do with regard to 24 consecutive hours off which is more recently enforced than our real labor legislation.

We have several of those laws in Pennsylvania.

Justice Felix Frankfurter: Do you think -- do you think Mr. Kohn if you really -- I'm not sure if I follow you.

Are you suggesting that it should be left to the individual discretion which 24 hours you intimate?

Mr. Harold E. Kohn: Absolutely sir.

Justice Felix Frankfurter: And how is that enforceable if it's left to the free willing unless you attribute much more than I do spontaneous obedience of individual law.

Mr. Harold E. Kohn: Well, first of all most of us work for other people and just as you can provide and do provide that you cannot work a man for 40 hours a week without paying him overtime --

Justice Felix Frankfurter: But we've had intricate machinery of record and so on by which --

Mr. Harold E. Kohn: The same -- may I suggest sir that the same records which show how many hours a week a man has work will show whether he has worked 24 consecutive hours or not, it's the very same record.

Justice Felix Frankfurter: Yes, but the Fair Labor Standard Act applies to people who are employed by others.

Mr. Harold E. Kohn: That's right.

Well that -- that --

Justice Felix Frankfurter: Now think of the -- think of the diversity of activity as the reconciled entity by all of citizens of Pennsylvania.

I don't know how many hundreds of thousands running into millions don't work for anybody, where there are no record.

They work for themselves, for their private scholars, or private accountants or what not.

Mr. Harold E. Kohn: Unfortunately sir, and I regret it more than any by enlarge most of us are coming to work for other people whether in business or in government or in the many other activities.

Now, I would say this that if what you are saying is that we don't know whether a man works 24 hours consecutively on a particular day in the week, how in the world can anybody ever enforce the 1794 Sunday Law which prevents me as a lawyer actually from working on a brief in this case.

I'm sure all of us in Pennsylvania -- Mr. Berger and I have worked together on many Sundays in many matters.

And --

Justice Felix Frankfurter: But you started out with a great bulk of the population assenting to non-work on Sunday whereas under your scheme you start out with no such case?

Mr. Harold E. Kohn: It's precisely sir because the great bulk of the population do I say and the reason for which they -- I said that the law which compel them not to work on Sunday is unconstitutional.

Now I think you put your finger on the very practical answer.

Take me for example, I wouldn't work --

Justice Felix Frankfurter: You're truly not to represented example.

Mr. Harold E. Kohn: I wouldn't work -- I wouldn't work on Sunday except that much more arduous labor which I've been confronted with in the last several Sundays writing leaves, but I think a person who was compelled to do what he would do voluntarily has a right to complain.

I think in our pluralistic society, people resent and resent very -- I think somebody quite humorously said about the child in the progressive school, do we have to do what we want today.

And I think it's true.

I would resent a law.

I'm not too devowed but I would resent a law which compelled me to go to the Synagogue on Yom Kippur.

Justice Felix Frankfurter: But that the law isn't directed against your kind.

It is directed against people who underline your respect for abstention in Yom Kippur, in fact our law.

Mr. Harold E. Kohn: Well as a matter of fact there is no law which protects me on Yom Kippur and I manage to do quite well, and I am sure that the Christians in a predominantly Christian community would have no trouble enforcing the dignity and respect to which the Sabbath in their minds their Sabbath is entitled without the compulsion of this law.

And we know as a practical fact that they get along quite well despite the fact that these laws have not been enforced in Pennsylvania in many places for quite sometime.

I think, sir, that you're countering up something which doesn't exist when you point to the empower, argue the impossibility of enforcing that kind of law.

It's as easily enforced as the law which forbids motion picture operators to work more than six days a week, and as so far as I know no violations of that law of any --

Justice Felix Frankfurter: Do you think that the interdependent -- do you think there is such uniformity or comprehensiveness in collective activity in our day that anybody as a different group picking different day, they're all the interdependent of industry and the professions or whatever you call calling, that that would just spontaneously enforce it though --

Mr. Harold E. Kohn: I don't think --

Justice Felix Frankfurter: Even the (Inaudible) has a lot complaint enforcing it.

Mr. Harold E. Kohn: It would spontaneously enforce itself --

Justice Felix Frankfurter: Or even -- even -- moderately as impossibly enforce itself.

Mr. Harold E. Kohn: The difficulty of enforcement is not this whole test.

I say that the great bulk of the people would be subject to enforcement in the same way to the 40-hour we did enforce.

Now, as to the other people, you can no more enforce the Sunday law against them bearing in mind that the Sunday law in Pennsylvania doesn't only mean there's a law that we heard about before the 1959 Act but the 1794 Act is what -- take for example that the very situation Mr. Berger gave you.

The Jewish merchant who is prohibited from doing something on Sunday by way of selling but can take inventory.

Well, if he takes inventory on Sunday behind his own close doors, he is violating the 1794 Act which is still in effect the important points with my Sunday laws.

Now, how do you enforce that against any more than you enforce a law where it says he's not supposed to work and we know that the Sabbath Jews, if this record is correct, and we have no reason to believe it does not, are already actually observing one day a week.

They are not working on Sundays.

That's why in that particular case they happened to come here.

Justice Felix Frankfurter: But suppose you -- suppose you were right, suppose you can -- you're demonstrably right or persuasively right and might be many people in the Pennsylvania legislature who might have the same narrow view about enforceability that I have.

Mr. Harold E. Kohn: Well that's why you are here, if may I say so, to guide them when their views are on questions of administration transgress constitutional right.

Justice Felix Frankfurter: That's a nice view from us to -- whatever you used to guide them.

I didn't know that was my job.

Mr. Harold E. Kohn: Well, that was a gentle word and I think you have [Laughter] -- that describes the power which you have over it.

If you approach this problem with the same clear level gauge that you approach when I think is a similar problem, the question of racial discrimination, this is a question of religious right, I think there'll be no problem.

I mean, I think this kind of case that's into the Fourteenth Amendment and it must be approached in precisely the same -- the same way.

Justice Felix Frankfurter: Helpfully under racial problem, I have a specific provision of the Constitution.

Mr. Harold E. Kohn: And we think sir --

Justice Felix Frankfurter: I do not think I have a specific provision dealing with your problem else we wouldn't have had five hours or six hours of argument.

Mr. Harold E. Kohn: Well, --

Chief Justice Earl Warren: Can anyone -- anyone not a member of the race affected raise the racial question?

Mr. Harold E. Kohn: I think they might sir and there are many cases I think that could be illustrated.

Suppose for example, I ran a boxing arena and the law of Louisiana forbid Negroes and whites to box together and that caused me to have to give up a particular match which I would like to have scheduled there.

I then suffer a monetary damage as a result of the Fourteenth Amendment and I think I can complain.

Suppose I have a restaurant in which I want to have Negroes and white persons to eat together, and a policeman says, “If you admit this negro to your restaurant who's patronage I want, I will arrest you” which is what they say here, if you sell on Sunday, I will arrest you.

I think I certainly have a right to bring that matter before the Court.

Chief Justice Earl Warren: Are your clients Sabbatarian?

Mr. Harold E. Kohn: No, they are not.

But --

Chief Justice Earl Warren: They raise -- they raise the religious issue for others?

Mr. Harold E. Kohn: No.

They raised the issue for themselves in the same way that the Sisters of Mercy in the Pierce case and the Hill Academy in the Pierce case raised the issue, because of a law which the legislature has no power to enact under the Constitution, namely, a law which dignifies, tends to establish, sets out a religion or a religious pass, aid to religion.

I am hurting my pocketbook that under many decisions, the Pierce case is one which suggests itself immediately to me, has been held to give us the standing to come in and complain.

And I think there's been no challenge to that at least in our case for quite some time now since we got before the three-judge court.

Now, --

Justice Potter Stewart: Mr. Kohn, as I understand it, it's your suggestion that the -- all of your constitutional difficulties could be -- would be resolved if Pennsylvania were to enact the statute of the one-day in seven variety, providing that in any seven day period, everybody should have a consecutive 24 hours of rest.

Would you -- would you concede that the Pennsylvania legislature would have power to provide that one-day in seven all retail stores should be closed?

Mr. Harold E. Kohn: Personally, I think not, because I think that grave and serious --

Justice Potter Stewart: Because under your first theory, as I understand it, your clients could operate 24 hours a day, seven days a week --

Mr. Harold E. Kohn: That's right.

Justice Potter Stewart: -- so long as they arrange their employment's schedule --

Mr. Harold E. Kohn: That's right.

Justice Potter Stewart: -- so as not to employ anybody more than six consecutive days.

Mr. Harold E. Kohn: I think there, you'd run afoul the religious problem.

I think you'd run afoul as to whether there is in any reasonable purpose which is served by such a law within the competency of the legislature to adopt and whether that -- which maybe a very severe penalty and that would have become a question probably of fact in which evidence would have to be introduced in that case as it was in our case here, whether in such a situation the remedy is too harsh.

This is for example in some of your free speech cases, you held that in an effort to prevent the sale of obscene literature to children, you can't prohibit the sale of obscene literature generally.

In an effort to get at people like Mr. Smith out in California in a case you decided recently, you don't want to discourage people from selling anything which is on the doubtful borderline so therefore, you must lay down as part of the statutory test that he must have knowledge.

In other words, these are very practical problems and you have to consider the laws in the context in which they arise, but I do say this that this particular Sunday law in Pennsylvania with the overtones that it had had since 1682, and the commonwealth's own brief draws the history of the legislation over several pages, and they point out quite clearly that the first law which I think even uses words like in order to preserve the Sabbath of the primitive Christians and to get people time and to encourage them to go to church and so on and it's just routine stock.

It goes right down for 250 years, 300 years almost, right down to the present day.

So I think in that context, this law is certainly -- is certainly bad.

I think the other is a much nicer problem.

I think though it's the kind of law that our legislature would never adopt.

The --

Justice Potter Stewart: But it's not unlike the 1959 law.

Mr. Harold E. Kohn: No.

The 1959 law was put before the legislature with a great religious overtone.

I have here the transcript.

That at one page, the chief proponent of the people whom you heard so much about the day, the department stores, said that when the vast majority of the people, it's department store, I mean, it's not a (Inaudible), when the vast majority of the people out of 10 or 11 million people in this state, probably 90% of them are of a Christian faith and one Sunday is a holiday, the religious holiday, I am one who wants them to keep that Sunday which is their religious holiday and day of rest.

So that I think we can manage if the things were met on an economic issue, but it's when in the guys of a religion that they seek to do something like this that you can't meet in the legislature.

If the other problem comes up, I think we have entirely different situation.

Justice William J. Brennan: (Inaudible)

Mr. Harold E. Kohn: No and I don't think it cures the constitutional defect because I have some misgivings myself as to whether if you --

Justice William J. Brennan: (Inaudible)

Mr. Harold E. Kohn: Just pure Sabbatarian?

Of course there are many people who work in our store, many of our customers who are not Seventh-Day Sabbatarians, who still want to buy on Sunday.

That day, as to them, the day that they choose to go out and shop with their family.

There's so many of them do it.

It's a very convenient method for them, and it's very convenient for people who work in our store and --

Justice Felix Frankfurter: Does Sunday have some non-judicial -- non-religious significance.

You say, they like to shop on Sundays, so Sunday, there must be something -- why Sunday for them having no religious business?

Mr. Harold E. Kohn: Yes.

There are many things that we do as I said before voluntarily, and in our civilization which is good we do voluntarily which you cannot compel me to do.

It might be a desire, really, it might be a wonderful thing if everybody went to church someday or --

Justice Felix Frankfurter: The other way around is also true.

There are many things which the legislature can compel to doing even though a lot of people would do them anyhow.

Mr. Harold E. Kohn: That's right.

Certainly.

Justice Felix Frankfurter: So that the fact that -- the fact that you -- as I say you, neither of those general statements helps us in this problem.

Mr. Harold E. Kohn: That's right.

But when the reason you are compelled to do is a religious reason --

Justice Felix Frankfurter: That's right.

Mr. Harold E. Kohn: -- then it does transgress the Constitution.

It's a good thing to be vaccinated.

Just take the vaccination case for example which I think poses the other argument.

It's a good thing to be vaccinated.

I would vaccinate my children whether I required by law to do so.

And there maybe people who oppose vaccination on religious grounds, but vaccination is not required by the State because it is a religious ceremony.

It's required by the State because it's a health measure.

And I think you yourself, sir, have said that you have to be more careful about the restraints you put on the mind than those on the belly.

And I think even more you have to be careful about the restraints you put on the spirit than those you put on the mind, than those you put on the belly.

So they can compel me to get vaccinated and they can even compel somebody who opposes vaccination on a religious ground, but here you have no public purpose to serve really except the dignity of the religion and the religious doctrine which Sunday has traditionally celebrated.

Justice Felix Frankfurter: That's the heart of the case.

Mr. Harold E. Kohn: That's right.

I did want to reserve some time for rebuttal, sir, so I'll close at this time.

We'll come back for five minutes later.

Chief Justice Earl Warren: Mr. Rubin.

Argument of Harry J. Rubin

Mr. Harry J. Rubin: Mr. Chief Justice, may it please the Court.

There still seems to be some question about the exact nature of the rights of this plaintiff to raise a question in this case.

I want to obviate any question on that point right now.

This plaintiff is a corporation.

It pleads no personal or religious infringement and at no point in the case has the issue of interference with the exercise of a religion been involved.

But as a corporate plaintiff being forced to remain closed on Sunday, it has suffered economic detriment and we have agreed that it has standing to raise the problem of whether or not this Sunday law is a law respecting an establishment of religion.

If we say that that's in the Fourteenth Amendment or if it affects the basic freedoms that are incorporated in the Fourteenth Amendment, but it is important to remember that this plaintiff simply wants to remain open seven days a week.

The record is clear that it closes, if allowed to remain free to do as it pleases, that it closes only on four days of the entire year, New Years day, Fourth of July, Christmas Day and Easter Sunday.

And apart from that, this plaintiff wants to remain open all of the time.

I think that it's impossible to discuss the question of whether or not a Pennsylvanian Sunday law violates the provisions of the Fourteenth Amendment in the nature that we've describe without looking at history.

Not only the history that Mr. Kohn's discussed, that is, what was the original intent of Sunday observance at the time of Constantine, but also Pennsylvania history.

What do we have in Pennsylvania?

I think we're all familiar with the fact that Pennsylvania was founded under a royal charter given to William Penn.

When William Penn drafted the first frame of his government in 1682, he included as Article 22 of that frame a provision that said the first day of the week shall not be used for ordinary business.

It was a very brief provision.

There was also enacted shortly thereafter several of the laws in England that applied to the new Pennsylvania colony when the colonist came here immediately thereafter and that dealt with a Sunday law very much like the 1939 codification that we have before us to the effect that every first day of the week called the Lord's Day, people shall abstain from their common daily labor.

This provision of the original laws of Pennsylvania and found in the first frame of government in 1682 was carried through several successive laws over the next 112 years, the Pennsylvania history.

Until in the Act of 1794, that was promulgated by the general assembly of Pennsylvania enact very much like the present provisions that we find in the 1939 Penal Code Section 699.4.

This being so, how can we explain Pennsylvania's devotion to religious freedom which is as much a part of the history of the founding of Pennsylvania as the fact that we had established churches in other colonies as part of the history of those colonies.

Pennsylvania never had an established church.

William Penn expressly provided for religious freedom in Pennsylvania.

At no time, where these tenants violated from the day it was founded until today and I refer for example to the first constitution of Pennsylvania enacted after the founding of the federal system of Government in this country under the Federal Constitution of 1789.

That Constitution, the Constitution of 1790, expressly provided that all men shall have freedom to worship or not to worship as they please and that the State shall give no preferment to any religion.

This being so is it possible to say that this Sunday law is a law respecting an establishment of religion.

In the Braunfeld case, which you heard earlier today, Justice Frankfurter mentioned the Virginia bill for religious liberty.

That bill, the outcome of large scale passionate efforts by Madison and Jefferson was enacted in 1785.

It was followed one year later in the Virginia legislature by a reenactment of the Virginia Sunday law.

Now, Virginia certainly knew, having disestablished its church a year previous, what establishment meant and what laws violating religious freedom meant, and yet history shows us in Virginia as well as Pennsylvania that these Sunday laws formed an integral part of the community and the social fabric of the laws of that state.

Secondly, let us take the reference made by the plaintiffs here to various expressions in opinions of the Pennsylvania Courts.

They cite a quotation in Updergraph against the Commonwealth, an 1824 decision of our Supreme Court to the effect that Christianity is part of the common law of Pennsylvania.

On its face, it's hard to explain that statement, but if you look at the paragraph in which that statement appears, I think you get a completely different view.

I'd like to quote it, “Christianity, general Christianity, is and always has been part of the common law of Pennsylvania.

Christianity without the spiritual artillery of European countries; for this Christianity was one of the considerations of the Royal Charter, and the very basis of its great founder William Penn.

Not Christianity founded on any particular religious tenets; not Christianity within established church and tithes in spiritual courts, but Christianity with liberty of conscience for all men.”

Even this Court has had occasion to refer to that statement and to the Updergraph case.

In the famous case of Vidal against Girard's Executors, handed down by this Court in 1844, you said, “It is also said and truly that the Christian religion is part of the common law of Pennsylvania, but this proposition is to be received with its appropriate qualifications and in connection with the Bill of Rights of that state as found in its constitution of Government.”

Then quoting the provisions from the Constitution that you went on to say “language more comprehensive for the complete protection of every variety of religious opinion could scarcely be used and it must have been intended to extend equally to all sex whether they believe in Christianity or not and whether they were Jews or infidels so that we are compelled to admit that although Christianity be part of the common law of the state, yet it is so in this qualified sense that is divine origin and truth are admitted, and therefore, it is not to be maliciously and openly reviled blasphemed against to the annoyance of the believers or the injury of the public.”

It's interesting to note that the Updegraph case itself was simply a case involving a conviction for blasphemy, the very thing that the Supreme Court in the Vidal case refers to.

So I say --

Justice Felix Frankfurter: The Vidal -- the Vidal case was not a dehydrated theology, wasn't it?

Mr. Harry J. Rubin: Well, it wasn't written by a theologian, as best I know.

Justice Felix Frankfurter: No, by a very learned man.

Mr. Harry J. Rubin: It's my feeling and it's our position that the history of the Pennsylvania Sunday laws cannot be isolated from the history of Pennsylvania generally.

And any looking, any view of the history of the Pennsylvania certainly convinces anyone that this colony founded on principles of religious freedom tolerating the greatest variety of religious and nonreligious exercises.

It cannot be said in the passage of these Sunday laws since 1682 to have violated any of the restrictions placed upon the States by the Fourteenth Amendment.

Justice Potter Stewart: I'm kind of curious about one thing; it's hardly worth taking much time.

I suppose Pennsylvania's background is the background of Quakers the society of friends, and we've been told earlier here today that to the society of friends Sunday isn't to have any particular -- that each day of the week is equally holdings.

Mr. Harry J. Rubin: Until I heard that today, I never realized such a thing was true.

I had always thought from my understanding of Pennsylvania history that Sunday was being the Christian day, the holy day for Quakers as well as any other Christian sect.

Justice Potter Stewart: I'm just -- out of curiosity wanted if you --

Mr. Harry J. Rubin: I have no other information on that respect.

With this --

Justice Felix Frankfurter: Are you suggesting -- you just said it's the holy day?

Mr. Harry J. Rubin: Well, it was the day of observance.

It was the day in which the Quaker would go to church just as a Methodist would go to church.

Justice Felix Frankfurter: Well that's their concern, but not the State's concern.

Mr. Harry J. Rubin: That's right.

Justice Felix Frankfurter: Those are through characters -- as an expression of State, it isn't the holy day.

Mr. Harry J. Rubin: No, we don't -- and certainly we don't claim it is.

We say --

Justice Felix Frankfurter: If you're saying that, then you're in great trouble.

Mr. Harry J. Rubin: We say that all that the Sunday laws probably were designed to do in Pennsylvania when you put them into this historical matrix is simply to see to it the people who came to Pennsylvania had an opportunity to enjoy the freedoms Pennsylvania offered.

Now, it's certainly true that in 1682 for most of the historical references I can find, there were either no Jews in Pennsylvania or very, very few Jews in Pennsylvania.

I think no Jews is probably correct.

The first Jews came to Pennsylvania in the early 1700s.

But by 1794 when the last act was passed, the one that forms the basis for the 1939 Penal Code, there was a large community of Jews in Pennsylvania particularly in Philadelphia to Lancaster.

Justice Felix Frankfurter: Does a famous Jew had something to do with revolution in Pennsylvania?

Does the famous Jew had something to do with the revolution in Pennsylvania?

Mr. Harry J. Rubin: I believe there was.

Justice Felix Frankfurter: Yes.

Mr. Harry J. Rubin: I think there are probably were several.

Justice Felix Frankfurter: No, a particular one.

Mr. Harry J. Rubin: In this background, I want to then refer to several things that the plaintiff here has referred to in his paper books.

Eight times in the paper books filed by the plaintiff, and I include the jurisdictional statement, the brief in our position to the motion to affirm, the brief on the merits and the reply brief.

The plaintiff has said or implied very directly that the court below made explicit findings of fact that Sunday laws are religious in origin purpose and defect.

I'd like to examine just what the court below did say.

The references which the plaintiffs made or to the portions of the record on pages 280, 281, 286 and 290 to 292; on page 280, in the paragraph beginning shortly before the bottom of the -- middle of the page, right after middle of the page, Judge Hastie said, “We think it cannot be seriously questioned that in their relation to the first day, Sabbath has an institution of Christianity.

The New York and Pennsylvania statutes have a common background and were, in original conception, designed to the same end.”

I would say, I think fairly that all Judge Hastie was pointing to it at that point was that historically religious considerations of some nature played a part in the passage of Sunday laws.

He repeats very much the same thing on page 281 where he says, “The historical religious connection is clear on both state statutes as to be obvious and indisputable.”

I might add that what he was doing here was comparing the Freedman case which you heard so much about with the present situation in Pennsylvania.

Over on page 286, of course, the only reference as to the fact that he mentions that the factual statement shall constitute the findings of fact.

And on page 290, we find supplementary findings of fact of which number one refers to the nature of Sunday as a day designated for religious observance by Christians except for the seventh day believers.

No question is made that in historical origin religious problems played a part in the enactment of these laws but the plaintiffs have gone on to say that in purpose and effect, present purpose and present effect, if you please, in their brief on the merits, Judge Hastie found as a fact that these were religious laws.

I say that the plaintiffs are wrong that there is nothing in the record whatsoever that would enable us to say Judge Hastie made such a finding.

Furthermore, they go further on page 17 of their brief, in the last paragraph they state.

“It seems equally clear that the findings of the court below that”, and now quoting the court below, “The required sensation of business on Sunday is an enforced expression of respect for and acknowledgment of the sacred character in religious symbolism of the Christian Sabbath, a religious institution commemorating the resurrection of Christ”, then referring to page 276 of the record.

If such a finding of fact were made by the court below, I think I would be in very dark trouble at this point.

But let's look at page 276 of the record.

Here's what Judge Hastie says in the middle paragraph, “Plaintiff attacks the Pennsylvania legislation commanding the cessation of certain worldly activity on Sunday.

The state action promoting an establishment of religion contrary to the prohibition of the First Amendment is made applicable to the states by the Fourteenth Amendment.

The argument is that this required cessation of business on Sunday is an enforced expression of respect for an acknowledgement of the sacred character and religious symbolism of the Christian Sabbath, a religious institution commemorating the resurrection of Christ.”

I failed to find any finding of fact by Judge Hastie that this is what Sunday is today.

I only find an expression by Judge Hastie that this is what the plaintiffs are arguing and yet in their brief on the merits, the plaintiff flatly state that this is a finding of fact made by Judge Hastie.

I might add that he goes on to say that there are many persons who sincerely believe that this is what Sunday is meant to do in the modern world.

But I also say that that is hardly of finding of fact by the Court that bears on the constitutionality of the legislation.

It simply his view that certain persons feel that these Sunday observances infringe their personal beliefs.

It's not a constitutional determination.

Going on to some of the other arguments that are raised by the plaintiff in this case, beyond the religious one, and I reemphasize that the only religious argument is the one that you would call the establishment question.

They also raise questions of whether or not the laws violate -- these two laws violate the equal protection of the laws as guaranteed by the Fourteenth Amendment quite apart from any religious issue.

Their argument basically centers on the 1959 statute because that is the statute that says you cannot sell at retail certain specified commodities and those are the commodities which this plaintiff wants to sell on Sunday and every other day of the week.

I find that the answer to this problem can be best expressed not by me but simply by what Judge Hastie said.

In his decision that Judge Hastie found, and this appears on page 284 of the record, which is part of his opinion, that the circumstances attending or existing at the time of the enactment of this 1959 Act affirmatively suggest a rational basis for the legislative action.

If this is so, and he goes on to explain what he means, if this is so, I find it very difficult for the plaintiffs now to say that Judge Hastie's findings of the facts supporting the promulgation of that legislation can be disregarded by them but they can accuse us to disregarding explicit findings which Judge Hastie, they say made, which he didn't make.

It's our view that the legislative background of the 1959 Act is so clear in Judge Hastie's opinion and it's so apparent that it's hard to say that there's any violation of the equal protection of the laws.

We must assume that if you can think of any rational basis for the enactment of this law, it must be upheld.

We're not here to decide whether we would agree with that legislature or whether we would, as members of the legislature, have voted for the law.

We're only here to determine if that legislature have the power constitutionally to enact it.

Judge Hastie felt without question they did and he found that the circumstances justify this.

Furthermore, this Court has held several times that the burden is placed upon any plaintiff who was seeking to strike down a law on this basis is great indeed.

In the Lindsley case, which we refer to on page 48 of our brief, the rules are set forth.

I know of no case which has ever deviated from these rules or said they no longer apply.

Plaintiff has not even begun to meet the burden placed on them in that respect.

The plaintiffs raised other attacks on the law, their attacks which they haven't mentioned in the oral argument and which they haven't spent much or any time at all in their brief.

One deals with whether or not defines in the act are oppressive.

I'll follow the plaintiff's lead and not speak too much to that myself.

It's covered in the brief on pages 53 and 54.

I think the law is very clear that this is pretty basically a matter of legislative concern and most defines are so great that this Court can say, as a matter of law, that they are absolutely oppressive and in fact in some cases, this Court has said they have to be so great as to oppress the plaintiff not to contest them with penalties that would be imposed.

That certainly isn't the case here.

I want also to discuss a final point which the plaintiffs have not discussed in their oral argument, but most of the record is taken up with the problem raised by this question and that is the question that's not in any of the other cases.

Did the District Attorney of Lehigh County enforce these laws in the discriminatory fashion?

This is quite a part, of course, from the question of the constitutionality of the laws themselves.

In answering that question, I think a preliminary question has to be answered.

The District Attorney of Lehigh County, at the time these laws were being enforced and at the time this case arose, was Paul McGinley.

You will note in the title to the case that the appellees, the defendants, are Paul McGinley, District Attorney County of Lehigh, Pennsylvania and George J. Joseph, District Attorney County of Lehigh, Pennsylvania substituted additional defendant.

What happened was this.

Mr. McGinley's term of office as District Attorney terminated on January 4 of this year.

He had served in that office in accordance with the statutes of Pennsylvania for four years.

Mr. Joseph succeeded him having been duly elected the preceding November.

When plaintiffs here presented a motion to the court below to substitute Mr. Joseph in the case and I will take full blame for the technical nicety that was overlooked here.

A motion asked that he be substituted as a substituted additional defendant not that he be substituted in place of Mr. McGinley.

First, I find nothing in the federal rules that allow such a procedure.

Rule 25 (d) expressly discusses the problem of substitution of the public officer and it points out that you can do so in order to preserve the question of the constitutionality of a statute being enforced by that officer.

And it is our contention that for several reasons, this phase of the case, discriminatory enforcement, is no longer before the Court.

First of all, if you didn't have Rule 25 (d) at all would be thrown back on the old decisions of this Court that say such an action would abate when the public officer leaves office.

Second, Rule 25 (d) being present.

We have nothing in the rule as I pointed out that allows the retention of a former public officer when the only issue relates to a discriminatory enforcement of the statute.

Third, even if we stretch the rule to try to cover this case, the rule says you have to have an allegation that whatever you're alleging is invalid will continue.

And in this case, the plaintiffs in their motion alleged that the new District Attorney will not continue this pattern of enforcement.

Fourth, and it's a very technical point, I'd never heard of a substituted additional defendant except when you have third party practice involved, joinders.

And finally and I think most important is this, in this case the plaintiffs are seeking equitable relief.

They want an injunction.

As the first ground for seeking that injunction they alleged the invalidity of the statute itself.

They base that invalidity on the grounds we've discussed, religious nature of the statute and second, the violation of equal protection.

Second, passed that point they say, they asked for an injunction on the ground that District Attorney McGinley enforced the statute in an arbitrary and discriminatory fashion.

They seek no monetary damages from Mr. McGinley or his actions as District Attorney.

What this means is that the plaintiffs here are asking the Court to pass upon a question of enforcement and obtain an injunction against the public official who is no longer a public official.

Since Mr. McGinley is no longer District Attorney, he can't enforce the statute and an injunction against him would be meaningless.

It would simply be an advisory opinion.

It would be a moot act.

It would have no significance whatsoever.

Third, under the 1959 statute as Judge Hastie found, Mr. McGinley never had an opportunity to enforce that the Act was passed subsequent to the institution of this case and at the time when Mr. McGinley was under restraint issued by the three-judge court.

So in every respect that I can think of, there's no grounds whatsoever for going into the entire question at all of whether or not there was discriminatory enforcement.

The plaintiffs haven't answered any of these arguments in their reply brief.

All they have is one statement in their brief itself, which says the Court really should consider this question because down in Lehigh County, before several justices of the peace, there are still some pending criminal summary criminal cases which were brought against employees of the defendant.

I think that the answers to this are, first, that this record doesn't raise any of those questions on the criminal prosecutions, and second, any defense on this ground which they may be allowed to raise can be raise simply in those criminal prosecutions.

It doesn't affect this plaintiff.

Justice Potter Stewart: The two lower court of Pennsylvania decisions recent ones don't involve this plaintiff, do they?

Mr. Harry J. Rubin: No, I don't believe they do.

Justice Potter Stewart: The ones holding invalid and --

Mr. Harry J. Rubin: They involve other plaintiffs I think some in similar position of the same natures as the operation may be, it's similar --

Justice Potter Stewart: One was a criminal case and the other was an equity case.

Mr. Harry J. Rubin: One was an equity case and one was a criminal case.

I'm told by the City Solicitor of Philadelphia that the equity case is still pending on exceptions and that the criminal case, the District Attorney for various reasons concerning the record didn't feel that he should appeal and it remains in that posture.

As far as the question of discriminatory enforcement goes on the merits, we have covered that extensively in the brief in case the Court wishes to look at it.

As I say, the record itself is, for the large part, taken up with testimony on the nature of the enforcement in Lehigh County and doesn't deal with the statute itself.

I will close with just one final reference.

Pennsylvania presently operates under a constitution written in 1874.

This constitution was preceded by a constitution written in 1838 and that, in turn, was preceded by a 1790 Constitution.

There was even one before that but of course the 1790 Constitution was the first one which was promulgated in Pennsylvania after the United States Constitution and after the statehood achievement of Pennsylvania.

In the 1873 Constitution and in the 1838 Constitution, there is repeated, almost verbatim with no significant change, if any, the language of that Constitution of 1790 which I have referred to.

I'd like to read it because I think it was applicable to Pennsylvania in 1790 before the passage of this 1794 Act and it's still applicable in Pennsylvania.

Article 9 Section 3 states that “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences, that no man can of right be compelled to attend, erect, or support any place of worship or to maintain any ministry against his consent, that no human authority can, in any case whatever, control or interfere with the rights of conscience, and that no preferment shall ever be given by law to any religious establishments or modes of worship.”

Thank you.

Rebuttal of Harold E. Kohn

Mr. Harold E. Kohn: Despite that constitutional provisions just been read by the Attorney General, it was from Pennsylvania that there came the Murdock case in which this Court established for the first time I think that the Fourteenth Amendment did protect this kind of liberty.

Now, a word about classification.

Now, I haven't argued it, probably because I haven't had time.

Now, I do ask the Court to believe that we do have a very serious argument there.

We could regale you for 15 or 20 minutes with the very picture as the example chosen from the statute.

The two lower court opinion that Mr. Justice Stewart referred to do I think set forth in just a few pages very vividly a kind of wholly capricious and irrational distinctions drawn, whether you consider this as a religious statute or whether you consider it as a statute designed to enforce a day of rest or to close up this kind of -- no matter how you look at it, it's a rational from every standpoint.

Now Judge Hastie, immediately after the portion that the Attorney General read to you, did say that there is testimony which establishes the fact in this record that this view of the religious significance enforce Sunday work stoppage is sincerely held by many person whose religion does not recognize the divinity or resurrection of Jesus or the sacredness of Sunday as the Lord's day.

And then he did proceed to make the findings which we quote at pages 10 to 12 of our brief and he did say in another case, the companion case which we quote on page 28 of our brief that were not for the Freedman case, this would be in his opinion a very different situation.

So, it wasn't because Judge Hastie thought the facts were against this, he felt confined by the Freedman case, and I think it's clear, I mean the judge -- being the judge he is that when he made all these findings and said in the Bargaintown case that this was a case of first impression, the constitutionality would not be free from doubt.

It is quite evident what he meant when he made those findings and quite evident why he made the findings.

And I think it's clear from those findings and from the evidence in this case that to borrow a word from Mr. Justice Frankfurter yesterday that there appears to be here a great legislative preoccupation with religion, whether you consider the types of exemptions that people exempt anything else, these laws one thing stand out from the preoccupation with religion.

On the day, -- the one day in seven, I did want to invite the attention of the Court to the amicus brief filed by the Civil Liberty Union which I think very forcefully, very vividly, points out that the so-called problems of administration are really de minimis and we have laws like that in Pennsylvania ourselves which we have no difficulty enforcing, many other states do too.

Finally I invite you to the amicus brief filed in the companion cases by the Synagogue's counsel which does purport and which does, I think, represent the orthodox, the conservative, and the Jewish point of view with regard to the statutes, and very clearly I think confirms the expert witness testimony under oath which I think were the good deal more than anybody as I say standing here telling you is the Jewish is not the Jewish point of view.

Thank you sir.