BRAUNFELD v. BROWN

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Argument of Theodore R. Mann

Chief Justice Earl Warren: Number 67, Abraham Braunfeld et al., Appellants, versus Albert N. Brown, Commissioner of Police of the City of Philadelphia et al.

Mr. Mann.

Mr. Theodore R. Mann: May it please the Court.

I represent five Orthodox Jews.

As has been discussed in the earlier case, orthodox Jews close their business establishments from Friday evening until sun -- Saturday evening.

My clients are in businesses which do not specialize in kosher products so to speak but which deal with the general public at large or -- and they are in competition with other business selling similar items such clothing and shoes.

We are dealing here with a Pennsylvania statute which was just passed in the Fall of 1959 and which appears on page 2 of my brief.

It is a statute which is not aimed at an occupation as much as it is aimed at specific commodities.

It outlaws or proscribes the sale of specific commodities at retail.

My clients sell those commodities.

Justice Potter Stewart: Mr. Mann, before you proceed, as a matter of information is the observance of Sabbath day of the -- the Sabbath confined along those who profess the Jewish Faith to Orthodox Jews' don't -- conservative Jews also to --

Mr. Theodore R. Mann: Yes, sir.

I represent Orthodox Jews.

As a matter of fact the requirements of Sabbath observance are part of Judaism generally.

Justice Potter Stewart: Yes.

Mr. Theodore R. Mann: Conservative Judaism certainly is in pretty much the same category as Orthodox Judaism.

Justice Potter Stewart: And perhaps some other branches of Judaism.

Mr. Theodore R. Mann: Reform Judaism, perhaps it might be said to a lesser extent.

That is a theological dispute that I'd rather not enter into.

I have included a certain amount of information on this subject in my brief in case the Court thinks it's relevant.

It is our position that --

Justice Potter Stewart: And did you -- do you know how many Orthodox Jews there are in Pennsylvania?

Mr. Theodore R. Mann: In Pennsylvania, no, sir, I do not.

I have tried to find out.

In the United States, I think they professed to have about a million.

I have some information in my brief on that too, although there is no exact computation made.

As a matter of information, I think most of the Jewish groups objected to inclusion of such a question in a critical sentence I just mention that passing.

We assert that there has been a violation on a kind of this statute of the First Amendment on two separate grounds, of course, a violation of the Free Exercise Clause and a violation of the Establishment Clause of the First Amendment.

So far as the Free Exercise Clause is concerned it is our position that this kind of a statute puts to these kinds of appellants a very clear choice and this choice is in essence admitted by all parties to the specific proceedings, the choice of going out of business or at least giving up a very substantial amount of their income or giving up their faith or at least, very substantially compromising their faith.

This Court has said in Schneider versus New Jersey and Thornhill versus Alabama and in many cases, that when a party litigant walks into court complaining of an alleged abridgement of a First Amendment freedom, it is up to the court to a -- to be -- stood to examine the effect of the legislation.

And we submit that the effect of this legislation is to leave the Orthodox Jewish retailer and the Seventh Day Adventist and Baptist retailers without one hour of weekend time within which to conduct his retail trade.

The effect of this statute is to put to these people the choice I mentioned a moment ago and they are the only group in society which now must face that choice.

We say therefore that the First Amendment is very much involved in this case, the Free Exercise Clause is, that by virtue of this statute, the economic loss which these people will admittedly suffer and it is a serious one, becomes an instrument of com -- compulsion to give up or compromise their religious faith.

And for that reason, the clear and present danger test or test by similar names is applicable to this kind of litigation and the scope of this Court's judicial inquiry must be correspondingly much wider.

We go further and say that there are other reasons and this comes really to a question Justice Frankfurter asked a few moments ago of Mr. Ehrmann, we go further and say there are other reasons why the scope of this Court's independent inquiry must be broad in this kind of a case.

I can't refrain from mentioning the fact that somehow if Pennsylvanians were more evenly split on this religious question of which day of the week is holy.

In other words, if -- if half of Pennsylvanians were Sabbatarians and the other half, Sunday observers that quite obviously, this kind of legislation would not be here before this Court today, it wouldn't pass and -- and this would be so for two reasons.

First of all, because it would much more dramatically appear than it even does now as an obvious civil interference into a controversy which is basically religious and probably, more importantly because -- for political reasons, such legislation would not pass.

I think it is fair to say that it is the numerical insignificance of the Sabbatarian groups, Orthodox Jews, Adventists and Baptists which accounts for this type of legislation being before this Court today.

Legist --

Justice Felix Frankfurter: (Inaudible) and numerically unimportant Jews in the (Inaudible)?

Mr. Theodore R. Mann: They are --

Justice Felix Frankfurter: And that --

Mr. Theodore R. Mann: -- numerically unimportant, yes, sir, in the state of Pennsylvania.

Justice Potter Stewart: That is the Seventh Day Adventist.

Mr. Theodore R. Mann: Seventh Day Adventist and Seventh Day Baptist --

Justice Felix Frankfurter: Alright.

Mr. Theodore R. Mann: -- in course of it [Laughs], but that is what accounts for the legislation in its present form permitting of no exceptions, not taking into consideration in the slightest degree the problems which this kind of legislation creates for these kinds of people and I submit that in such situations, aside from the First Amendment question, in such situations, the scope of this Court's judicial inquiry must be correspondingly greater.

This is after all, not a case of mistaken for foolish legislation.

This is not a case where legislation which foolishly affects people in a state that the normal political democratic process is being open and unobstructed, the state legislature can be counted upon in due time to repeal.

I think it is fair to say that there is no reason to believe, one year from now or five years from now or 50 years from now, the citizens of the State of Pennsylvania are going to be anymore concerned with the problem that this kind of legislation creates for this kind of people then the Pennsylvania legislature was in 1959 when it passed this law.

And for that reason, I submit, this Court must have a correspondingly wider scope of judicial investigation.

I'm not saying that for that reason, the law should be ipso facto only constitutional.

I am merely saying that the judicial scrutiny must be great in this kind of case than in others.

Justice Felix Frankfurter: I suppose the recent elections prove that very small minority may have very big results.

Mr. Theodore R. Mann: I don't know that the recent election involved small minorities as small as the minorities involved in this case.

Justice Felix Frankfurter: Well, I thought in some states, this is involving the smaller minorities.

Mr. Theodore R. Mann: That will never be established to the satisfaction of anyone, I'm afraid.

Justice Felix Frankfurter: But it's just arithmetic.

Justice John M. Harlan: If Pennsylvania has this law and it spoke before at this degree.

Mr. Theodore R. Mann: Now, I -- I would come to that question right now.

As a matter of fact, Justice Black asked the question yesterday whether this case would be different if the religious motives were not apparent on the face of the statute and that's our case.

The religious motive is not apparent on the face of the statute.

This is a new law and the -- my brief will indicate and several of them do that the old law, the Pennsylvania Blue Laws go back for 300 years, the old law was very much like the Massachusetts law.

It was admittedly religious in nature, religious in effect and by judicial construction deemed to be religious.

The appellees take the position, however, that this is an irrelevant consideration in this kind of a case because they say there has been a clean break with the past.

That the Pennsylvania legislature has now passed a new law on its face, it does not purport to -- to be a religious law and they say there are valid civil needs and this kind of law meets those valid civil needs.

So in direct answer to your question, sir, the -- this law is a new law.

The only law that was similar to it was a law enacted a year earlier affecting only the sale of automobiles.

Justice John M. Harlan: You have to directly face the question.

Mr. Theodore R. Mann: I have to directly face that question and I'm going to say right now that even if we admit arguendo, the civil motives for this kind of legislation it established -- establishment is still in this case.

Justice John M. Harlan: You're assuming that -- not merely that the Fourteenth Amendment puts limitations upon intrusion into the leverage of speech but you're assuming that the very specific provisions of the First Amendment, the very specific provision, two of them --

Mr. Theodore R. Mann: Yes.

Justice Felix Frankfurter: -- are read into the Fourteenth Amendment.

Mr. Theodore R. Mann: Oh, yes, sir.

Justice Felix Frankfurter: There's no justification for that in any opinion of this Court.

I'm not saying they're in justification of your argument, all I'm saying is, you're making an assumption.

Mr. Theodore R. Mann: I think Mr. Cantwell versus Connecticut makes that assumption if I’m not mistaken.

Justice William O. Douglas: I think some members of the Court could furnish you with other --

Justice John M. Harlan: I think there are several.

Justice Felix Frankfurter: I think there are [Laughter] because (Inaudible) aware of the fact that there are expressions in opinion and views by individual members -- then to -- to assert that there's no decision of this Court which pose that the First Amendment as such is read into the Fourteenth.

Justice William O. Douglas: I can give you a list of those [Laughter]

Mr. Theodore R. Mann: I -- I think I -- well --

Justice Felix Frankfurter: But just as --

Mr. Theodore R. Mann: (Inaudible) opinions --

Justice Felix Frankfurter: -- just as well --

Mr. Theodore R. Mann: In cases where there are nine opinions filed by this Court, it becomes a difficult matter to determine exactly what the majority feels on this specific issue.

However, even assuming what you say is correct --

Justice Felix Frankfurter: I thought the bothering decision of the Court in which five members explicitly concurred in an expression as the decision of the Court.

Justice William O. Douglas: Counsel, in the list I gave you of certainly among members of the Court so [Laughter]

Mr. Theodore R. Mann: Thank you, sir.

Justice Felix Frankfurter: I thought you were arguing this case? [Laughter]

Justice Hugo L. Black: I thought you -- I thought you -- (Voice Overlap)

Mr. Theodore R. Mann: I am doing so but I might -- can use all the help I can get. [Laughter]

Justice William O. Douglas: As I recall, I was not the one that interrupted you.

Mr. Theodore R. Mann: [Attempt to Laughter] May I say, that the proponents of this kind of legislations we have in Pennsylvania admit at least this much, that Sunday was selected as the day in preference to any other day because of the fact that the great majority of Pennsylvania citizens observe Sunday anyhow, mostly for religious reasons and so, there is nothing wrong, they say, with accommodating the great majority of Pennsylvania citizens.

As a matter of fact, the proponents of this legislation say a lot of things and I want to get to this point right now.

They admit that there is preferential aid with this kind of legislation.

They merely say that it wasn't intended if it -- that it's not the primary purpose.

They say the primary purpose, the only purpose is a civil purpose and if this kind of law preferentially not just the common -- not just by an accommodation but preferentially aids the majority Christian group.

Well, this is merely an incidental accidental byproduct, so to speak, of otherwise valid civil legislation and so it's all right.

They go further than that.

They admit that this kind of legislation specifically hurts the Sabbatarian groups and very seriously so, but they say that if this is so, this too is not the intention of the legislature.

It is merely an accidental byproduct of this valid secular legislation.

So they admit really both the preferential aid and the interference but they plead that it's by accident and the appellants, I submit, cannot afford these kinds of accidents, Sabbatarians cannot.

I think the maxim -- the old legal maxim is applicable to this kind of case that legislators must be deemed to have intended the natural and foreseeable consequences of their Act.

I submit that constitutionality cannot turn on the question of motive and intent that a legislature cannot avoid the specific proscriptions of the First Amendment by simply saying, "But we didn't mean it."

If legislatures know what the result of legislation will be and if they know that it's going to preferentially aid one group and in addition to that, interfered substantially with another group then they shouldn't pass such legislation.

And if they -- if there are compelling reasons for passing such legislation and I submit there are not, but if there were then they most certainly cannot pass such legislation without doing everything they can to minimize the effect upon those groups upon whom the legislation worked in a special handicap.

I have argued in my brief also that the fact that this is preferential aid to the majority Christian group as against the minority Christian group and Orthodox Judaism, hurts the Sabbatarian groups, not only the individual practitioner of the religion but hurts the groups.

We're living in a society where, according to the Zorach decision of this Court, we have a certain free competition between sects.

And it is the law of that case that the Government must be neutral when it comes to this competition between sects.

This case goes far beyond the Zorach case which did permit under certain very limited circumscribed circumstances, accommodation, so to speak, of religion.

This case goes very far beyond that because there, at least there was an accommodation for all.

Here, we have an accommodation for some and therefore, we have preferential aid.

And once this Court transcends the limit of strict separation of church and state, which I don't believe it should do or should have done, certain problems inevitably arise with regard to this doctrine of accommodation.

Certain problems arise because with preferential aid, you have a tremendous disadvantage between sects who are supposed to in a free society be competing freely with one another for new members and for maintaining their adherence.

I would like to speak for a moment, if I may, with regard to the question of reasonable alternatives.

This Court has said that mere legislative preference for one rather than other means of combating substance to the evil is not enough to justify legislation which interferes with the rights under the First Amendment.

In discussing other alternatives and some of these questions have already come up in the preceding case, in discussing alternatives, we have to start with the proposition of -- well, what -- what is the legislative end in mind?

Now if the legislative hand in mind is a weekly respite from laborers, for all Pennsylvania citizens then as has been said, a one-day-in-seven statute does that exactly and it does it efficiently.

The only objection to it that I have heard is that it is allegedly difficult to enforce.

And I submit, even if that was so which it is not, that is not a sufficient reason for passing other legislation to inter -- which interferes with First Amendment freedoms just as in the Schneider case.

If the purpose of Government is to keep the streets clean, they may pass an anti litter ordinance, but may they pass a law which forbids the distribution of handbills, First Amendment freedoms are involved, they don't have that choice.

Chief Justice Earl Warren: May I ask you this question?

The law provides in most states that the courthouses are closed on Saturday afternoon.

Mr. Theodore R. Mann: Yes, sir.

Chief Justice Earl Warren: That a man cannot file a legal complaint or transact any business with the Government because of the fact that they've declared that they shall be closed on Saturdays.

Now, would you say that because a man is a Christian and observes Sunday as his day of worship that -- that the law is invalid because it prevents him from half a day of practicing law on Saturday where those of the Jewish Faith can practice all day, Saturday.

Mr. Theodore R. Mann: Does that the Jewish Faith can't practice all day, Saturday under such a law and they can't practice on Sunday either because the courthouse -- would likewise close on Sunday.

Chief Justice Earl Warren: Well I know but they can practice -- they can practice if they want but the -- the Christian -- Christian can't do it.

Mr. Theodore R. Mann: And the Christian cannot practice on Saturday in the -- in the --

Chief Justice Earl Warren: On Saturday afternoon --

Mr. Theodore R. Mann: And the Adventist towards you may.

Chief Justice Earl Warren: Well, some -- let's say there's some other -- some other group that can.

Mr. Theodore R. Mann: Well, first of all, you have a situation --

Chief Justice Earl Warren: Let's -- let's -- I -- I think I chose a bad example because under your -- under the religion of the Orthodox Jews, they can't -- they couldn't practice on Saturday either but -- but let's say that -- I think it was stated here yesterday that some religious faith practices its religious ceremonies on Tuesday.

I have forgotten what it was.

Mr. Theodore R. Mann: Well, the Muslims do in Friday sir.

Chief Justice Earl Warren: On -- on Friday.

Well, now, would have a right to complain that because the -- the Court is closed on Saturday that -- that they couldn't --

Mr. Theodore R. Mann: No more, sir than they had a right to complain that because the courts are closed on Sunday that they can't practice law, let us say and that they are disadvantaged because they likewise close on -- on Friday.

Our society is such that the school systems so far as when children are home for example.

We don't have the -- really a six-day workweek anymore.

We have no right by it.

Chief Justice Earl Warren: I think -- I think that's bad example, don’t pursue it any further.

Mr. Theodore R. Mann: It has been pointed out in the Philadelphia Blue Law case very recently that this enforcement argument can't carry much weight.

After all, it is the -- it is the Sunday Blue Law legislation, not the one day in seventh legislation which has a long history, almost a tradition of sporadic enforcement.

Besides which as has been pointed out in one of the briefs, I believe it was a -- a Civil Liberties Union brief in the next succeeding case, two Guys from Harrison, there are specific ways set forth in the statutes of those states, one day -- which have one day in seven laws of satisfactorily enforcing them.

So that it is my position that there is no need for a law to go beyond one day in seven.

However, it is -- the position is taken that a weekly respite from labor is not the only legitimate end of this kind of legislation.

That it's important for some reason that number one, a man who has a day off from work should have a tranquil community in which to enjoy.

It is important it is said that husbands and wives and children all be home at the same time so that they can enjoy their day of rest together and it is said that this can't be accomplished under a one day in seven law.

I doubt that very much, but basically, and the question as I see it as related to this case, is let's assume the legitimacy of those ends.

To what degree is it necessary to enforce the law against the Sabbatarian retailer in order to accomplish those ends?

After all, there are more than a dozen statues in the United States which -- like -- like the Pennsylvania statute which contain specific exemptions.

And no one in any of these cases before Your Honors this morning has pointed to one such state and said that it -- those exemptions have not worked out there.

That on account of the Sunday operations pursuant to such exemptions, family life has been in tranquil or that a man can't enjoy his day of community repose.

So that even if those ends were legitimate, and I submit that they are not, there's not evidence in this case even though a very long history of legislation specifically permitting Sunday operations that it is necessary to enforce this kind of law against these kinds of people.

I would like to return just for a moment to the question of legislative objectives.

We have to weigh in a First Amendment case, ultimately the needs of society against the -- against the rights of the individuals involved.

As Justice Frankfurter pointed out yesterday, if there are no First Amendment freedoms involved in a case, then all we are left with are the civil liberties of anybody to -- to work -- make productive use of seven days a week.

Now if that's what we're left with, and if the legislative end is a weekly respite from work then even though -- even one day and seven statute will limit the right of an individual to work seven days instead of six, I am willing to concede that the interest of society in protecting its members is subordinated to the interest of an individual under the Fourteenth Amendment exclusively to work seven days a week.

Justice Potter Stewart: This would be true then of the -- of the Atheist we've been talking about is simply one of them for economic reasons to work seven days a week.

Would it also be true in your opinion of the man suppose the reason of such person there maybe, does religion taught him and told him that it was sinful not to work seven days a week?

Mr. Theodore R. Mann: That is a more difficult question.

That is a more difficult question but it may very well be that even that -- even that in First Amendment so to speak right, could be subordinated to the community's need to make sure that all citizens rest periodically.

I won't concede it.

There is no such religion to my knowledge but that would raise a very interesting question.

But nevertheless, as I think it has been demonstrated, uniformity of day is not necessary to accomplish that legitimate social end.

Now, I say to this Court that if we are talking about the other objectives of family life and community tranquility, if they are the legislative objectives, then I ask this Court to consider very carefully, the substantiality of those needs.

It -- and I think the Court has to independently do so in this kind of a case.

Is there such a crying need in our society for families to be together all on one day?

Won't they be together even without such a statute?

Is there a need in order for a man to enjoy his day of rest to have entire community repose?

Is this really a -- such a wavy consideration that the rights of these small groups can be subordinated for those kinds of objectives?

And in considering and in weighing the substantiality of those reasons against the rights of these individuals, I would ask this Court to consider the fact that these so-called new recently advanced social ends or community repose will be achieved at the expense of cultural diversity in our society.

After all, these people are working on Sunday, they are hurting no one.

The fact that they are working on Sunday is merely a cultural manifestation of their efforts and the efforts of their fathers before them to make a living and support themselves and the -- and their families while at the same time, clinging to the faith of their fathers.

Now, many have complained in our society of the subtle, the powerful pressures towards conformity in our economic, social and political life.

I would just say this that those few people, those few groups in our society who are attempting to resist cultural engulfment, should be permitted to do so and should be permitted to influence or try to influence their children and others that their ways are right and that their ways are best.

I'm not suggesting that the right to be culturally different rises to the exaltation of a First Amendment freedom.

I am merely saying that during the weighing process that this Court must inevitably undergo in this kind of a case that into the scale should go, the positive benefits flowing from a pluralistic society and cultural pluralism.

Because I think that that consideration was in the scale, so to speak, in several cases before this Court in the past.

For example, in Meyer versus Nebraska and in several other cases like it, there are the foreign language cases where the state legislature forbade the teaching of a foreign language until the eighth grade.

And this Court held, although there was obviously no First Amendment freedom involved, that for the purposes of creating uniformity, this is not a legitimate end for civil legislation.

I would answer one question before I sit down, that was raised yesterday by Justice Whittaker concerning the colonial legislature of Massachusetts, I think it was, merely by saying because I -- I think it's important that this be kept in mind.

That at the time of the Constitutional Convention, there was establishment in quite a few states in the union.

As a matter of fact, there was an established church, well into the 19th Century in Massachusetts and elsewhere and that at the time of the Constitutional Convention, the First Amendment was only considered to be a -- a proscription against the National Congress establishing a church.

It certainly was not considered to be a proscription of any kind against the state legislatures.

That was the Fourteenth Amendment or the -- and the judicial interpretations of the Fourteenth Amendment that followed it.

Justice Felix Frankfurter: But even in Virginia was Jefferson's set famous statute on freedom of religion, of religious freedom, there will be (Inaudible) --

Mr. Theodore R. Mann: Yes, and I -- I --

Justice Felix Frankfurter: -- according to the Governor.

Mr. Theodore R. Mann: I -- I would say -- I would say the practical answer to that, sir.

I wonder how many Sabbatarians there were in Virginia at the time that that -- that that took place.

In other words, perhaps the religious significance of these kind of laws do not become so apparent in a society which is at least religiously agreed on this point of Sunday observance for religious reasons.

When however we have a changing society and there are people throughout the country who observe another day of the week, then it's in those situations that religious laws become more apparent.

For example, it's -- it must be so that -- that there was release time in the public schools a long, long time before the 1948 or 1949 decisions of this Court.

Justice Felix Frankfurter: Am I greatly mistaken that there is a Jewish community in Virginia in that concern?

Mr. Theodore R. Mann: I would -- I -- I -- as I understand the Jewish --

Justice Felix Frankfurter: I'm not talking about the numbers, I mean the fact that there is --

Mr. Theodore R. Mann: I don't have any doubt that there was a Jewish community.

I would say that it must have been a mighty small one.

Justice Felix Frankfurter: Because I didn't think that numbers mattered on this case, do they?

These are the basis of your argument, is that --

Mr. Theodore R. Mann: Numbers did not matter.

Justice Felix Frankfurter: You're confused that you're not politically affected.

Mr. Theodore R. Mann: No, but I -- I'm only raising the questions of numbers in answer to your question, sir.

I'm saying that where there is several Jews in a community of -- of thousand or hundreds of thousands that it may not appear to the Christian that a Blue Law is religious because nobody raised anything.

Justice Felix Frankfurter: I do not object to this and not the -- not the -- it may not appear generally.

I'm talking about Thomas Jefferson who was preoccupied with this problem.

Mr. Theodore R. Mann: No, he was not preoccupied with the problem of Blue Law.

Justice Felix Frankfurter: He was not preoccupied with the problem of religious freedom?

Mr. Theodore R. Mann: Oh, I said of Blue Laws, I'm sorry, you -- of course he was occupied and apparently the Blue Law problem never -- never came into anybody's mind because it has become a serious problem of recent years, after all Blue Laws were virtually never enforced against people who observe another day of the week.

Justice Felix Frankfurter: But you're not suggesting that Jefferson didn't know that Jews’ holy day was Saturday and not Sunday.

Mr. Theodore R. Mann: I am not.

Justice Felix Frankfurter: (Inaudible)

Mr. Theodore R. Mann: I am not.

Chief Justice Earl Warren: Mr. Mann, let me -- let me please get back to that question I asked you a moment ago and I’ll put this way.

A man is a Mohammedan.

He practices law.

He cannot, under his religion, practice on Fridays.

The state, by law closes the courthouses on the Jewish holiday of Saturday and on the Christian holiday of Sunday.

Is that man deprived of due process or equal protect of the laws and that he can only practice four days a week?

Monday, Tuesday, Wednesday and Thursday where the others can -- can practice for five days?

Mr. Theodore R. Mann: Well, of course that law does not forbid him, it does technically.

It does, I should say practically.

Chief Justice Earl Warren: Technically, he can't file a paper, he can't --

Mr. Theodore R. Mann: He can't file a paper because it --

Chief Justice Earl Warren: He can't try a lawsuit.

He can't do anything -- he can't do anything in Court.

Mr. Theodore R. Mann: He can't do that --

Chief Justice Earl Warren: Anything at the courthouse.

Mr. Theodore R. Mann: That's right.

He -- he -- I would put him in the same category as a customer who can't shop on a certain day that he'd like to shop.

They're not forbidding him, they simply closed the establishment.

And the question of whether he has a right to stop them from closing down the establishments so -- so that he could practice the way he wanted to raises different considerations --

Chief Justice Earl Warren: What different consideration?

Mr. Theodore R. Mann: -- and this kind of case does.

Chief Justice Earl Warren: When you -- when you place this on economic grounds, the loss to these people, why is that different in his situation?

Mr. Theodore R. Mann: Because they are not -- they are not passing legislation which forbids him to do anything.

They are merely -- it would be like a store which voluntarily closes on four days a week and limits a person's right to shop.

In any event, I would argue that this is a de minimis consideration, not affecting as substantially as this legislation obviously does.

It does not put the man to a choice of going out of business or giving up his religious faith.

And it -- that -- that would be another answer.

There are a lot of examples in our society of a certain amount of historical religious symbolism that fall under the category or umbrella of de minimis, I suppose, because they hardly or ever or are never or perhaps never maybe challenged in Court.

Chief Justice Earl Warren: You mean because there are so few Mohammedans?

Mr. Theodore R. Mann: Well, if -- to return to the question of Mohammedans, I would say that any Sunday law could not be enforced against the Mohammedans where exactly the right, the same reasons that it cannot be enforced against Jews and Sabbatarians.

I would say that a Sunday law with an exemption in it for the seventh day wouldn't cure anything so far as the Muslim is concerned and could not be enforced against him.

His rights, despite the numerical insignificance rise exactly to the same height as everyone else's does.

And as this Court has pointed out, it'd be -- if the task falls to these very small sects and sometimes on popular sects to test the religious freedom in our land.

Chief Justice Earl Warren: Very well.

Mr. Berger.

Argument of David Berger

Mr. David Berger: Mr. Chief Justice, may it please the Honorable members of this Court.

I think the last question of the Chief Justice pretty well epitomizes the present question now before the Court.

There is no aid as a result of the particular rule which the Chief Justice referred to.

It does not establish a religion and in my judgment, it does not prohibit the free exercise thereof.

And I think that when we come to analyze this particular statute before the Court, we will see that any harm, economic or otherwise which flows to the Mohammedan trial lawyer, is one which is in direct, not immediate, consequential and I would say, personal.

And one which is not, on the other hand, direct, immediate and universally applicable to all Mohammedans but I will develop that in the course of my presentation.

I think it's important in this case especially because in the -- like the argument yesterday on the Massachusetts law, we -- it appeared to me that we are dealing here with substantially different question.

As Mr. Mann pointed out, the only law here before Your Honors at this moment, is the Act of 1959 of the Pennsylvania legislature which appears in full at page 17 of this raw transcript of record.

And I would hope that Your Honors would be good enough to refer to that because it is only by referring to this Act and knowing precisely what we are here considering, will we be able to reach what I hope would be the proper decision.

This Act, you will note, is not a general law, it's not a day of rest statute and it is -- if anything, a day off statute.

And in my judgment, this is not a First Amendment case at all and no number of repetitions of the phrase "First Amendment," or the basic rules with which all of us are familiar will make it a First Amendment case.

If you'll read the statute, you will see as I do that all it does, and that's all that these plaintiffs are complaining about this Act, no other Act, they want an injunction to restrain us from forcing this Act, is to amend a general penal code of Pennsylvania.

This doesn't go back to 1682.

No ancient observance of any religious right is here involved.

This is a 1959 statute.

The pressures behind what are so fresh in our minds that we can tell you that religion had absolutely nothing to do with its passage.

What does it do? It penalizes the sale at retail of only certain items or commodities and it penalizes these sales very heavily unlike other statutes of Pennsylvania which are not here at issue.

Now, why was it passed?

It was passed for sociological and economic reasons.

As the briefs of the Retail Clerks pointed out, the retail industry is the second largest in the United States in terms of numbers employed.

This is an industry where unless you have a uniform mandatory day off, Your Honors, the people who work in that industry, the individual entrepreneurs are just not going to get a day off.

The competition in this kind of industry has been aptly described as atomistic.

It is -- there is no measure of control over the market in the sense that if a groups of entrepreneurs should take Sunday off for example, that this would cause competitors to do likewise.

On the contrary, what happens is that the competition is so atomized here that it works like a chain reaction.

If one retailer keeps open on Sunday, this essentially triggers off a series of other retailers.

Now the Retail Clerks pointed out and I think quite correctly, that the employees in this industry are not completely unionized and that's certainly an understatement.

We know that actually, it -- it is hardly unionized, but they say that even with regard of the segment of that industry which is unionized that there is no way for them to get Sunday as a day off.

Moreover, they point out that the – bulk of the employees were not unionized, have virtually no bargaining power with their employers and hence, they can't even get a day off, much less a common or uniform day off.

Justice Potter Stewart: Does Pennsylvania have like Massachusetts has a one-day-in-seven law?

Mr. David Berger: No, sir.

We do not.

And as far as I'm concerned this Act was standard for -- as it is.

We have no exceptions here but it is applicable to a reasonable and in my judgment, large class of employees and individual entrepreneurs.

Now, the retail merchants at the state level, at the national level have filed briefs and they too point out the essential need for a common day off.

Now, we don't say this is a day of rest.

That if Your Honors will look at this, the -- You Honors will agree with me that they find small Orthodox Jewish merchants who are the plaintiffs in this case, are not in any way penalized.

If they'd go to their stores and they do all of the things which must be done in the conducting of a retail business such as taking inventory, fixing displays, having sales meetings, making their plans for the following day.

I know as an Orthodox Jew that this violates the strict Sabbatarian obligation of the Orthodox Jews.

They cannot do that on Saturday.

They may not do that from Friday sundown to Saturday night.

But they are permitted to do these things under this law.

The one thing they may not do is, sell to the public.

Now, the reason for that are the reasons, sociological reasons which I have mentioned, the economic loss.

There is a further economic reason which is of great importance in the passage of this legislation.

Pennsylvania, as so many of our large industrial states, has a problem of -- which is essentially concerned with an imbalance between the large cities and the core areas of our large cities and the suburban areas.

In Philadelphia for example, a large part of our wealth is concentrated in the large department stores.

We know and the Court certainly can take judicial notice to this fact that there has been a flight to the suburbs.

You will have -- developed in the 1950s, 1950s as tendency to get away from the big department store, John Wanamaker.

John Wanamaker deteriorates the extent that we have a fragmentation with the -- all kinds of suburban shopping centers taking over.

The City of Philadelphia is in a very sad position.

Now, we are now taking positive steps to remedy that and the legislature had before it, not merely the flight of Philadelphia but Pittsburg, Allentown and in the next case, you'll see it, Your Honors, there's no question or religion involved.

Two Guys from Harrison, you've got that problem there as to whether or not the legislature had a right or power, and that's always before this Court.

Was it legitimately within the legislative power of Pennsylvania to say that with respect to this group of items and this group of retail sellers that there would be a substantial penalty if they did the -- this on Sunday where as Judge Hasty pointed out when he dismissed the appeal, the challenge to the constitutionality.

These are the very items which the suburban discount houses were selling.

These are the very items which triggered off these Sunday sales and which caused the various employees in the retail business not to get Sunday off.

Now, why do they want Sunday off is the answer also in the brief of the Retail Clerks and also of the Merchants.

They say that Sunday has become a nonreligious day.

It has a unique significance in America today.

Now, I could concede that in the early days, colonial days, the Sunday laws may have been passed for that -- for the religious purposes but that's irrelevant to the consideration of the constitutionality of this law.

In 1959 when this law was passed in Pennsylvania and I dare say all over the United States, Sunday had attained an unusual significance.

It was the day when the great football games were played, professional football games.

It was a day when you saw “Face the Nation” on the television, and the other great television programs.

It was the day when most people wanted to go to the beach.

It is the day when the municipal and private golf courses are swarming with doffers.

It is a -- it's a day which some ministers have contended has become completely nonreligious and indeed we have even had complaints from some who say that the result of a statute will be to interfere with religion because you're giving day off and this is -- together with their family will result in their engaging in completely nonreligious activities.

If we need, and I certainly don't want to labor this point but if we need any further demonstration of the fact that religion is not involved here at all, let us consider this.

The day off which the legislature in Pennsylvania believes will result from this is in no way conditioned upon a religious observance.

It is untrue that if anyone suggests that I deny it, that an Orthodox Jew who will refrain from selling to the public on Sunday in any way, shape or form, either violates his religious tenets or observes the tenets of some other religion.

That has nothing to do with it and in this case, it is clear beyond any question that if the retail employees and the individual entrepreneurs who are small retailers, if they are to get Sunday off because this statute should be declared constitutional, they'll get Sunday off even if they use it to play golf.

Now, considering the other hand, your Zorach decision in which the majority of this Court upheld a time off case in the school system.

Now, there, it was interesting because the time off could only be obtained in the first instance if you use that and proved you used it for religious observance.

In this case, there's no connection whatsoever between the use that you make of the time off, the day off you get from the statute and religion.

And so I say to Your Honors that this has nothing to do with the sensation of work, day of rest.

This is simply an economic and sociological statute and therefore in my judgment, we are not dealing with the situation involving the establishment of religion.

I think that point will further be developed in the next case.

Now, we come to the second branch of the religious argument and the argument made by these five plaintiffs is that regardless of the fact which I gather they concede that this was an economically based law.

It does have such an effect as to cause this Court to bring into play the -- the great weight of the First Amendment through the Fourteenth Amendment.

Now, even assuming arguendo that the First Amendment has been incorporated into the Fourteenth Amendment or both branches, it is my --

Justice Felix Frankfurter: Any doubt -- and any doubt that the Fourteenth Amendment protects intrusions into religious freedom have any doubt.

Mr. David Berger: Well, I’ve been talking about that --

Justice Felix Frankfurter: -- very specific, very different-

Mr. David Berger: I say --

Justice Felix Frankfurter: It is important to keep in mind.

Mr. David Berger: Well, I have no doubt either, Mr. Justice Frankfurter but I say that there is no interference with the free exercise of religion as a result of Pennsylvania's Act of 1959.

Now, when you analyze this, you'll find that you're not here dealing with any actual interference with the practice of religion or the statement or a holding of a religious belief.

You don't have anything by way of a license.

For example, in your Jehovah's Witnesses cases, the majority of this Court struck down the -- the laws because there, in order to practice your religion, you had to pay a license fee and the Court said you can't do that.

You can't force a man to pay money in order to practice his own religion.

You don’t have any proficient here.

You don't have the law saying that you may not observe your own Sabbath or if you're a Muslim, your own Friday or if you're a Buddhist and I think the question was asked yesterday whether there were any other days of the week which were celebrated and my research reveals that the Buddhist have a -- a floating or rotating day and it depends upon the phases of the moon as a result of which it could be said that no matter how you work it out mathematically, it is impossible to select a uniform mandatory day off which won't, under their argument if this Court accepts it, either prefer or harm some religion.

And I don't think this Court has ever gone that far and moreover, it does not say -- it does not command them to do something which they are not permitted to do under the -- under religious tenets.

Justice Felix Frankfurter: If that is the design, you would agree that it would be bad.

Mr. David Berger: I would have to agree if that were the design, sir, but that is not this case.

And you have, for example, in a -- in a case of vaccination, I think You Honor is familiar with the -- the -- Justice's Holmes famous decision in the Jacobson case.

There, Christian scientist, by virtue of their religion, cannot be vaccinated but they had to be vaccinated.

Now, there you had a -- a different kind of situation where you take your polygamy cases where some people believe, the Mormons at that time believed that as part of their religious observance, they should have more than one spouse.

And in that case, the Court said that the religious law naturally has to be subservient to a universally applicable civil or nonreligious law.

Now, I think we come to the nub of the case where we ask this question well is there any economic impact whatsoever on these five plaintiffs, Orthodox Jews?

Now, I am going to concede before the bar of this Court that there is an economic impact.

I do not deny that, but we must examine very carefully what kind of economic impact it is.

Does it come because the law, in any way, prohibits them from exercising their religion?

No.

As I explained it, it has nothing to do with that.

The -- it -- it is something which is neither direct nor immediate but on the contrary, it is consequential and it is more than that, it isn't even universally applicable because not all Orthodox Jews will suffer economic impact as a result of this kind of law.

As a matter of fact, although it isn't in our statute but just hypothetically, the kosher butchers and I'm surprised this wasn't raised yesterday, a kosher butcher shop deals with the people who will by Kosher meat.

Now, Kosher, I can conceive of many kosher butchers who would like to have a five-day week because their customers are people who must buy from them so that they would suffer no economic impact if for example, that were included in the commodities.

I point that out to show that the economic impact which I concede here is of such nature that it is personal to the individuals and relates primarily to the -- their voluntary entry to this particular type of business.

It's like the Mohammedan trial there and I say that this kind of economic impact clearly does not come within the protected arm of the First Amendment.

And I say --

Justice Felix Frankfurter: You're not -- you're not suggesting that the discrimination or the interference or impact, whatever you call it, must affect the same -- the religious group as an entire group --

Mr. David Berger: I would suggest --

Justice Felix Frankfurter: -- or that the body rather than -- than come within that religious groups who'll be called a religious troopers are affected.

Mr. David Berger: I am suggesting, Your Honor that where it becomes a matter of degree that where the impact is personal and dependent upon not the religion you observe but all of it -- of the kind of work you're doing, nonreligious work you're doing, that in that situation, I don't think this is kind of impact which the Court has in mind.

I think all those who -- if you had to pay a license fee to practice Orthodox Judaism or any other kind of religion that would affect all of that faith.

This is not only an -- an economic impact which is not felt by others of the same religious group, but if Your Honors please, it maybe felt even more by those who are not in this religious group and indeed, who are not in any religious group.

As Your Honors will note from the next case, Two Guys from Harrison deals with one of these suburban discount houses.

They are open seven days a week.

There is no question of -- their of -- their observing any religion and yet, they claim, and I suppose the record would support this claim that they're dependent upon the sales they make on Sunday and without that, they say, they are going out of business.

Now, I’m pointing that out of course it seems to me that that irrefutably demonstrates that the nature of the economic impact as against these five Orthodox Jews is one which is personal to them and cannot be the basis for striking down a law on the ground that it violates the First Amendment.

Justice Potter Stewart: Well, he -- excuse me --

Justice Felix Frankfurter: Now, go on.

Justice Potter Stewart: The -- the points you're making that this favors or rather that -- that this -- this harms more broadly and more largely people who are not of -- not Sabbatarians and who may indeed profess any religion.

That could all be met, couldn’t it, by a -- by the kind of an exemption that there is in the laws of, what, nine or eleven of the Middle Western states, exempting from the provisions of the law such as this, those who have gone -- who are bona fide Sabbatarians or --

Mr. David Berger: We --

Justice Potter Stewart: -- practice some other day of the week.

Mr. David Berger: We have two answers to that.

We have -- number one, we have a serious doubt in our minds whether that in itself would not be the preference giving a preferential treatment to a particular religion or to all religions and I think this Court has gone so far in -- in the celebrated trinity of Everson and McCollum and Zorach to say that you cannot favor a particular sect of religion or all religion against the nonreligious.

That now, it seems to me that the -- and the law might call upon the question.

We don't have it in Pennsylvania but it would seem to me there are some serious doubt whether an exemption such as Your Honors suggest, would not itself be violative of the First Amendment because for this --

Justice Felix Frankfurter: If you don't favor, Mr. Berger, do you favor in any -- in any natural use of that word.

Do you favor somebody because you prevent a general -- a universal law from falling unfairly upon a particular group?

Mr. David Berger: No, I don't.

Justice Felix Frankfurter: You don't favor it -- to equalize matters.

Mr. David Berger: That's right.

I agree with Your Honor there and I feel the second point is, in answer to Mr. Justice Stewart, that the fact that there might be available to the legislature of Pennsylvania, an alternative, namely the putting in of an exemption might be something to be addressed to the legislature, but that certainly would be no basis for striking down this law and I think as Mr. Justice Black pointed out in the celebrated Everson opinion.

The mere fact that a -- a state law favors or not favors, but coincides with the personal wishes of many people, is no basis for striking it down.

And so I would come back to that.

The mere fact that a mandatory day off would coincide with a Sunday which most people want from both religious and no religious and a variety of reasons would be no -- no basis whatsoever for striking it down.

Justice Potter Stewart: Does your general Sunday statute be open, not this one, have any exemption in it?

Mr. David Berger: No, sir, it does not.

And we are here with -- confront it with the question in this Act of a non-exempting statute, applicable only to certain retailers who sell certain items.

Justice Potter Stewart: Yes.

Mr. David Berger: Now, It is because of this analysis that we have concluded that, number one, there is no establishment of a religion at all.

There is no religious origin, purpose or effect here.

Number two, there is no prohibition against the free exercise of any religion.

Now, and then it seems to me that the case boils down under the all Common Garden Variety Fourteenth Amendment Case is this -- is there something about this which violates the Equal Protection Clause.

I think the best answer to that and very frankly, that's the reason we didn't labor the point, can be found in -- in Circuit Court of Appeals, Judge Hasty's opinion on that point.

And in that case, it's printed that the -- the relevant portion of his opinion will be found on page 13 and 14 of my brief.

That's the -- the -- we call brief, white brief there.

In this, he points out the reasons why and they were intensely practical.

The legislature didn't go off, off the fact there.

They picked out these particular items because as Judge Hasty pointed out, these were the very items which large discount houses were selling as which were triggering off the series of competitive sales on Sunday.

And that was the reason why the department stores and the labor unions supported this particular kind of statute.

So that once you get a -- once you grade, as I believe you should, that regardless of Massachusetts thought that this particular Act in 1959 does not involve the First Amendment, then I think you must also agree that the attack on the grounds of the equal protections fails because there is an economic basis.

And I would never attempt to justify these myriad of exceptions on ground -- religious grounds.

I'm saying that they're justifiable because this is the opinion of the legislature of Pennsylvania of how to meet the economic and social need which I have described.

It maybe that -- that some of the justices would disagree with the legislators but that's not the test of constitutionality and it is certainly not without rhyme or reason as Mr. Justice Frankfurter -- Mr. Justice Frankfurter has pointed out.

Where the legislature acts along as it isn't without rhyme or reason, this Court isn't going to strike down its actions simply because alternatives exist or because it might take a slightly different route to that particular end.

I -- I would like to say just one other word, although it hasn't been raised, I think in the arguments yesterday, some of the Justices did raise the question of police power.

I don't think there's any violation of the Fourteenth Amendment Police Power Clause.

I think that -- I -- Fourteenth Amendment, I believe that this is a valid exercise of Pennsylvania's police power.

And therefore, you don't have the normal Due Process Clause.

I understand it has been argued or will be argued that it is unconstitutional for a state to select quite apart from religious grounds, a uniform mandatory day off.

We couldn't be more in disagreement.

We say that whereas here, there are sociological and economic basis for a uniform mandatory day off such as I have described in Pennsylvania.

That then, that is a legitimate basis for the operation of Pennsylvania or other state's police power.

We think in the end, this case can be summarized on a religious point by what Circuit Judge Learned Hand said in the famous Atwood case at 205 F.2d, cited in my brief and if Your Honors will indulge me, I would like just to read this because it summarizes my own philosophy.

The First Amendment said Learned Hand, Judge Hand, protects one against action by the Government.

Though even then, not in all circumstances, but it gives no one the right to insist that in the pursuit of their own interest, others must conform their conduct to his own religious necessities.

A man might find it incompatible with his conscience to live in a city in which open saloons were licensed and yet he would have no constitutional right to insist that the saloons must be closed.

He would have to leave the city or put up with the iniquitous thence no matter what economic loss, his change of domicile entailed.

We must accommodate our idiosyncrasies, religious as well as secular to the compromises necessary in communal life.

Now we can hope for no reward for the sacrifices.

This may require beyond our satisfaction from within or our expectations of a better world.

Thank you.