MCGOWAN v. MARYLAND

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Argument of Harry Silbert

Chief Justice Earl Warren: Number 8, Margaret M. McGowan et al., Appellants, versus Maryland.

Mr. Silbert.

Mr. Harry Silbert: May it please the Court, Mr. Chief Justice, Justices.

I would like to correct a mistake I think which occurred unintentionally.

Mr. Burger I believe stated that the next case was a case of the Two Guys from Harrison.

I represent seven defendants -- seven appellants who sustained a criminal conviction in Anne Arundel County, State of Maryland.

Incidentally, these appellants work for the Two Guys from Harrison.

So that actually I think he had reference to the case that is following me rather than this particular case.

My clients work for the Two Guys from Harrison which is a large retail establishment in the County of Maryland.

Within the confines of this establishment are so many, many things as has been testified almost everything under the sun.On a Sunday, the police arrested these people and they were charged with selling, two of them were convicted of -- convicted for selling a three-ring loose-leaf notebook, four of them were convicted for selling a stapler and staplers, one was convicted of selling a toy submarine.

These convictions were sustained by our Appellate Court of Maryland.

I think -- we claim that these convictions are not proper and that in light of the First and Fourteenth Amendment to the Constitution should not be sustained and should be overthrown in this Court hearing.

In order to more clearly familiarize ourselves with the Sunday Blue Laws, I think it would be well to examine the Sunday Blue Laws as they apply to the State of Maryland.

The first law was enacted in 1723 and remains substantially in its same form today.

It's known as Article -- Section 492 of Article 27 which is the criminal article affecting the criminal laws of Maryland.

It is entitled the "Sabbath Breaking".

From this Article 492 and I refer to our jurisdictional statement which outlines the Section 492.

It says that no person whatsoever shall work or do any bodily labor on the Lord's Day, commonly called Sunday, and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's Day except works of necessity and charity always accepted, nor shall suffer or permit any children or servants to profane the Lord's Day by gaming, fishing, fowling, hunting or unlawfully pastime or unlawful pastime or recreation, and every person transgressing this Section and being hereof convicted before a justice of the peace shall forfeit $5, to be applied to the use of the county.

Thereafter, a series of exceptions were carved up to this general Blue Law.

Section 521, which was enacted almost the same time as this Section and sustained a number of exceptions thereto, permit on a statewide basis the sale of certain food commodity such as soft drinks, candies, confections, milks and ice, ice cream and ices, certain tobaccos, certain motor fuels and greases, and certain periodicals to be sold on Sunday.

This has statewide effect.Section 522, which follows the one just read, prevents on the Sabbath day, as it says, commonly called Sunday, the operations of any dancing saloon, opera house, tenpin alley, barber saloon, or bail alley -- ball alley within the -- within the State.

Thereafter, a section on this 50 -- 509 which came after 521 and 522 and from that is the problem that we are facing the Court today.

The State of Maryland contends that my clients were convicted under the general Section of 521, which is the prohibition of the sale of items which we admit are not included within the exceptions of 521.However, 509 is a Section which applies in effect only to Anne Arundel County and it exempts from the operation of Sections 5 -- 4 -- 492, 521 and 522.

It says, "It shall be lawful to operate and work or to be employed in the occupations of operating any bathing beach, bathhouse, amusement park, dancing saloon, the selling or sales of any novelties, souvenirs, cut -- accessories or other merchandise essential to or customarily sold or incidental to the operation of the aforesaid businesses and occupations at retail."

It also gives them the right to rent beach chairs and beach umbrellas but that is not incidental to this case.

So from this overall --

Justice Potter Stewart: I mean is it considered that these exceptions apply only to Anne Arundel County?

Mr. Harry Silbert: I believe so, 509 is only applicable by the title to Anne Arundel County.

It says, "Beaches, amusement parks, picnic groves in Anne Arundel County."

The Code of Maryland specifically says this, "will only apply to Anne Arundel County."

Justice Potter Stewart: I see.

Mr. Harry Silbert: Now, there are great number of other sections following 492 and 521 and 522 accepting numbers of activities and sales of merchandize in the various political subdivisions of the State of Maryland, also applicable to Boulder City where we have a great multitude of exceptions.

But 509 carves out a large exception and says that, "You can sell anything which would customarily be sold at the bathing beach, that these items are admitted to be proper -- offered for proper sale at a bathing beach is born out by the trier of facts Judge Mickelson when he tried -- when he tried this case in the nisi prius court, he said -- the Court said to counsel trying case, "If you could wave a magic wand and make all these places were the alleged violations of the law occurred bathing beaches or amusement parks why you wouldn't have much difficulty, will you, when we objected to the fact that this created an arbitrary or unreasonable classification of the law."

I submit to Your Honors that we, our clients, suffer pecuniary loss directly.

The preceding cases have be labored to the fact didn't or did they -- did -- did they or did they not suffer pecuniary loss.

Here, we have a mercantile establishment operated not at a bathing beach.Selling items which the Court says can be sold at a bathing beach.

Now, it so happens that the Two Guys from Harrison's retail establishment is located within a few miles of the bathing beaches.

So that, a man on his way to a bathing beach would not be able to buy a stapler, the can of wax or the toy submarine, yet he could buy that very item at a bathing beach and be solely within his legal rights as the law lies -- lays him down.

If you will refer to Judge Mickelson's decision in finding our clients guilty for the purposes of bribery, he refers to the distinction as being ridiculous.

Ridiculous to believe that you can buy a can of beer or buy a prohibited item and yet, buy -- be able to buy an accepted item and yet not be able to buy a shirt or shirt or as he characterized it, a tailor button if you are going to a wedding or some affair on Sunday, unless you actually went to a bathing beach to buy it.

Now, we say and we urge that the Court's rule is to be arbitrary and unreasonable.

We have heard that there are number of cases on point and there are number of cases which distinguish as in the Utah case, or in the Georgia case which says, "Well, you can buy" it would be -- it's not -- it is arbitrary to say that you can buy a bottle of beer and yet not buy a can of orange juice.

But this is a different case.

This case the same item, the very item that you can buy at the bathing beach may not be sold around the corner if it doesn't face the bathing beach.

So then, if in any respect, this law can be classified we say the classification is arbitrary and unreasonable and subjected to judicial review, it does not lie within the province of a legislature even though it'd be subjected as the Harvard law review irregular review sense, that it is subjected to the private interest and the pressure groups to cut away from the law certain items which can be sold.

This is the very same item that has a denial with the privilege of the law behind it.

It has the effect of a law to say to one group of merchants you cannot sell a toy submarine, a can of wax, or a stapler and to say another group of merchants in the same county.

Not only the same state but the same county you can sell it.

Justice Hugo L. Black: And do you think the slaughter house cases have any relevance to your problem?

Mr. Harry Silbert: I am not fully acquainted with the slaughter house cases as to able to pass an intelligent opinion.

I do feel that my --

Justice Hugo L. Black: They sustain the monopoly against the charge which violated Due Process and Equal Protection that (Inaudible)

Mr. Harry Silbert: Well there are monopolies.

I think I can comment on that sir.

There are monopolies which are created by law or are authorized by law and have their place in our society.

And they have the right to do certain things that possibly others don't but this is not a monopoly.

This is a case of the private individual, the private citizen.

It would mean that if you were engaged in --

Justice Hugo L. Black: I gathered from what you said, it was giving the monopoly to the beach, sells certain types of good or goods (Voice Overlap) --

Mr. Harry Silbert: There are a number -- there are a number of beaches picture if you may, Atlantic City, picture if you can Atlantic City as a beach.

If we had that same beach in the County of -- in Anne Arundel County, all the stores on facing the beach could sell anything they wanted, which would -- which would include everything.

Yet, if you are the other side of the beach, not a bathing beach, you couldn't sell it.

Now, I'm not talking about any other item except that which is sold at the beach.

Justice Hugo L. Black: Now, what you're saying is that the State is without power to -- to quite people to buy their goods from a beach if it wants to do so?

Mr. Harry Silbert: I believe so.

Because this is not a monopoly, it's not created for public necessity.

Monopoly are usually -- usually derive their origin I believe in some necessity which benefits the public but these don't.

Now, with respect, as I say, I leave the subject to the arbitrary classification on these items with a feeling that if permitted, it would give to those private pressure groups the right to create or to create quasi monopolies by saying, "You will lose out" and the -- the individual who operates a store not at the beach, and the person who works in that store is deprive of his right to make a living and as -- and the owners deprive his -- deprive of his right to sell while blessed with the sanction of the law behind them the same mercantile operation in the bathing beach area thrice.

This, we believe, to be beyond upheld of reasonable classification.

It becomes arbitrary.

Chief Justice Earl Warren: Isn't that done in a lot of states under local action, laws that one county has certain regulations and the one next to it has no regulation at all?

Mr. Harry Silbert: Mr. Justice Warren -- Chief Justice Warren, I -- I would -- I'd subscribe to that.

I'd subscribe to that theory except that this is a classification within the county itself.

In the original file of the case of the State of Maryland versus my clients, the states attorney Mr. DeVault quoted the Salsburg case the Court of Appeals of Maryland which had behind the unlegal -- unlawful search and seizure, Bowers Act we termed it.

And he said, "If the act applies to the whole state, it's a validated."

In this case, it exempted three counties from the operation of the Bowers Act.

However, our Attorney General in 1959 -- in 1959 advised the Governor that the propose passage of amendment price requirement, that is the -- the imposing upon state stores in five counties from the State of Maryland, the right to impose minimum price controls on liquor would be unconstitutional.

It's not affecting the entire State.

Now, this is the same Attorney General's office --

Justice Hugo L. Black: Well, you mean it would violate the state constitution?

Mr. Harry Silbert: I beg your pardon.

Justice Hugo L. Black: You mean it would violate the state constitution?

Mr. Harry Silbert: As being classification.

Justice Hugo L. Black: The state constitution.

Mr. Harry Silbert: That's correct.

We say we go one step further, if he fires up people of their property and their right to make a living without due process of law -- of law and in violation of the Fourteenth Amendment of the Constitution of United States.

Now, with respect to the religious aspect, all of these exceptions and the two original general laws are entitled Sabbath Breakers.

We have two cases in Maryland, the Pierson case and the Judefind case.

I think in the Judefind case, the thought brought home is very vivid.

They attempt to define the Sunday law as being a day of rest and the Court of Appeals upheld that.

And the Court in its -- in its decision said that if in the operation of this one day of rest, the majority or the dominant religion is benefited by thereto, as indeed it should be, then that would be a good law if it encouraged the observance by the dominant group in Maryland of their religious views.

Now, we hold we have no ultimate statutory law.

The people that I represent are of number -- are very religious.

My research of their religious face -- faces of the inhabitants of our country leads me to believe that there is no day in the week in all seven that could be said to be without religious significance.

The friends for example hold everyday holly.

Chief Justice Earl Warren: Oh when?

Mr. Harry Silbert: All the -- everyday, one day is holly as the other.

The Muhammad --

Justice Potter Stewart: You say those are the friends -- those are friends --

Mr. Harry Silbert: Friends.

Justice Potter Stewart: -- settled in Pennsylvania.

Mr. Harry Silbert: I beg your pardon, I think so.

I think they hold every -- they construe each day as to be holly as election.

The Jew on Saturdays, the Christian on Sunday, the Seventh Day Adventist on Saturday, the Muhammad on Friday and those who observe the Buddhist faith as has been explain and is in our brief depends upon the place the moon has and the sky for the particular day that's observed, so that it's conceivable they may have seven days a week.

I believe we can safely say that the Legislature has a right to designate a day of rest.

But I strongly urge as they cannot of the expense of one's religious convictions or personal liberty designate a particular day.

I think that if they were to say, a day must be observed, it would be within the confines of ones own beliefs, to take advantage of the day that would not do damage to his religious beliefs or personal liberty.

Justice Felix Frankfurter: You mean leaves to each individual the decision what they will rest --

Mr. Harry Silbert: That's exactly correct sir.

Justice Felix Frankfurter: You think that human means capable of enforcing such a law?

Mr. Harry Silbert: I -- I think it could be enforce to some degree but I don't think that the difficulty that would lie in the enforcement of such a law would be the prime consideration, because this Court has had before it only recently.

Justice Felix Frankfurter: In short, the answer -- your answer is that it can't be enforced, that doesn't mean -- which maybe it's certain not to have such a law in order to protect an overreaching interest.

That's your argument.

That's what you just candor.

Mr. Harry Silbert: No, I don't mean that, Mr. Justice Frankfurter.

Justice Felix Frankfurter: It has to mean that because merely -- that everybody seek what they will if you're going to give any sanction, isn't that true when they're impossible to enforce?

Mr. Harry Silbert: No, there are -- at least I respectfully differ with that opinion.

I believe there are a number of laws on the books that are very difficult to enforce.

Justice Felix Frankfurter: Remember, they get laws on the books too, aren't they?

Mr. Harry Silbert: They -- that's true.

But there are a great number of the -- of laws even the so-called Sunday law today is a difficult enforcement problem.

But I do believe that the people of this faith land basically are conscientious law observers and if given the opportunity, they take their day a week.

Justice Felix Frankfurter: But your answer to that doesn't make -- your point of view is that's immaterial if it's difficult to enforce.

Mr. Harry Silbert: That's correct.

Justice Felix Frankfurter: That's that, that's that.

Mr. Harry Silbert: Your Honor has put in exactly the words that I would like to use.

The difficulty of the enforcement I feel should not be the prime concern.

If it violates, however, the religious freedom or the liberty of a man, I think that is a -- that is a paramount concern.

And I respect --

Chief Justice Earl Warren: Do your -- do your clients' contempt this interferes with their religious freedom, their particularly religious freedom?

Mr. Harry Silbert: No, sir.

Chief Justice Earl Warren: Do they observe any other day of --

Mr. Harry Silbert: In all probability, my clients observe Sunday.

There might have been a Seventh Day Adventist, I don't know, who might have been observed Saturday.

But on --

Justice William O. Douglas: But you -- you do raise at First Amendment question?

Mr. Harry Silbert: We do.

We preserve that in our original trial and the brief and before this Court.

We say that it is immaterial whether it affects upon my -- my clients personally.

We say that the book of the law is unconstitutional because it would affect anyone who would be forced to observe.

Chief Justice Earl Warren: But if I'm -- if I'm Christian and they have their day rest on -- on Sunday can I -- can I raise the question of interfering with my religious freedom?

Mr. Harry Silbert: We wouldn't have necessity inter -- interfere with your religious freedom sir.

Chief Justice Earl Warren: I beg your pardon.

Mr. Harry Silbert: We would not -- if my view were adopted, it would not have necessity interfere with your religious freedom.

Chief Justice Earl Warren: Well, I thought you'd say it here -- that you didn't know that didn't make any difference but their religion was they could rest are just the same.

Mr. Harry Silbert: That's correct.

Whether the law --

Chief Justice Earl Warren: Would that be different from my situation?

Mr. Harry Silbert: Well in this respect, that if the law be validate or in them, it would be determined by this Court as to whether it wouldn't interfere with one's religious freedom.

In other words, if Sunday is a universal or common day under the valid exercise of the police power or as I return under the invalid exercise of the police power because of its interference with one's religious belief, I think this Court ought to strike it down.

We have no ultimate law in Maryland.

We have no exception for Sabbatarian observe -- observer.

We have no exception if you made Saturday, even if the Court of Appeals make Saturday.

I mean rather Legislature said Saturday would be and often the date, what would happen to the (Inaudible) on Friday or the Buddhist or one who would observed any other day?

I feel that the same consideration given to one irrespective of numbers must be given to all.

Chief Justice Earl Warren: Or one which -- who would -- would not take any day off.

The man wants --

Mr. Harry Silbert: I think I --

Chief Justice Earl Warren: The man wants to work seven days a week, you'd say -- you'd say he could still raise the question of religious freedom?

Mr. Harry Silbert: I believe that would be his right sir.

I believe that the man who -- I believe we have a right under the police power to say that no man shall work seven days.

But to designate a common of rest would be basing on one's religious rights.

Justice Felix Frankfurter: Your case, is it fair to put -- say that your case could (Inaudible) your clients are entitled to complain that they are right on topic because of embarrassment they come to people who have religious groups.

Mr. Harry Silbert: I wouldn't put it as boldly.

Justice William O. Douglas: I thought you -- I thought your point under the First Amendment was that you cannot be compelled to refrain from doing something because of a religious group of somebody else, because of a religious --

Mr. Harry Silbert: That's correct.

Justice William O. Douglas: -- man or a religious policy or a religious --

Mr. Harry Silbert: That's -- that's correct.

Justice William O. Douglas: -- legislation.

Mr. Harry Silbert: That we cannot be compelled to refrain from our acts because it would of necessity and appear with a dominant Christian religion as in the case of the Sunday law.

Justice Felix Frankfurter: But your relation to the religious issue is that somebody else is going to be fired, so the Government is that you have less (Inaudible)

Mr. Harry Silbert: I -- I wouldn't put my case in those words, sir.

I put my case in these words that our approach to these lawyers that we're out of pocket because of the arbitrary and unreasonable classification of the laws with respect to the sale of certain merchandize with certain members of the retail community in Anne Arundel County can engage in and others cannot in the same thing.

Justice Felix Frankfurter: That's right.

Chief Justice Earl Warren: Well that isn't the religious (Voice Overlap) --

Mr. Harry Silbert: No.

If I'm coming back, that's the first on.

Justice William O. Douglas: That's equal protection.

Mr. Harry Silbert: Right.

As to the second, we avail ourselves of the privilege of asserting the invasion upon religious rights even though they do not affect my clients.

Justice Felix Frankfurter: But -- but you have to come into court on an interest that the interest is that you have a right to prophet by the other fellow by respect for somebody else's religious group.

I don't see -- there's nothing desirable about that.

Mr. Harry Silbert: No, I don't -- I don't -- I didn't mean to convey the impression that anything was dishonorable with reference to that.

Justice William O. Douglas: Well, it might be prophets, it might be riding a bicycle, it might be pleasure.

Mr. Harry Silbert: Well, according to -- according to our law, under Section 492 recreation is band unless specifically exempted.

We have no right to recreation.

Justice Hugo L. Black: May I ask you which particular statute is involved in this issue.

You have about seven on them side (Voice Overlap) --

Mr. Harry Silbert: That's correct.

Justice Hugo L. Black: -- which was involved in this case.

Mr. Harry Silbert: The State contends that 521 is involved, 521 of Article 27 which is on page 25 of our jurisdictional statement in the second part.

Justice Hugo L. Black: How did the case start?

Mr. Harry Silbert: These people were arrested on a Sunday for selling the items --

Justice Hugo L. Black: It was an indictment or --

Mr. Harry Silbert: Went to know -- went to the magistrate's court, jury trial prayed --

Justice Hugo L. Black: What was the charge (Voice Overlap) --

Mr. Harry Silbert: The charge of violating -- violating Section 521 of Article 27.

Justice Hugo L. Black: 521.

Mr. Harry Silbert: And we contend that 521 of Article 27 must be read in conjunction with Section 509 of Article 27.

Justice Hugo L. Black: Why?

Mr. Harry Silbert: Because from that overall statute -- Section which covers the entire state, 509 -- 509 applying only to Anne Arundel County was carved out.

In other words, 521 --

Justice Hugo L. Black: 520 -- 521 seems to be sufficient on its face.

Mr. Harry Silbert: Well 521 says --

Justice Hugo L. Black: (Inaudible)

Mr. Harry Silbert: No.

It -- it's a section of the criminal statutes of Maryland.

It says Article 27 Section 521.

Justice Hugo L. Black: That's 521 and the objection has to be applied.

Mr. Harry Silbert: Our objection is that --

Justice Hugo L. Black: The 521.

Mr. Harry Silbert: As this 521?

Justice Hugo L. Black: Yes.

Mr. Harry Silbert: That even there, the classification of selling tobacco is for example on Sunday is compared with other items which are prohibited would be unreasonable in arbitrary.

However, 509 --

Justice Hugo L. Black: You want to object on selling ice cream on Sunday.

Mr. Harry Silbert: I believe that -- I believe that that could be well argued sir.

I think that could be well argued.

I don't think it would contribute to a universal day of rest if anything adopting the argument of my -- the previous counsel that the acceptance which have been carved out of the overall section tend to make it not a day of rest but a day of work.

And that 521 cannot be read alone because 509 applies only to the country we're in, and 521 statewide which must give way to 509.

Justice Hugo L. Black: What was the sale may give?

Mr. Harry Silbert: That sale was -- it's loose-leaf notebook, staple and staplers, and a toy submarine, for which the defendants were found $5 in cost.

Justice Potter Stewart: Has -- has your Court in Maryland held that the -- that Section 509 refers not to -- not to items which happen to be sold at the beach but items which of a kind that are sold at the beach.

So that -- I understood there was some -- there was some argument that the toy submarine, for example, might -- might not have been a violation of 521 because it's the kind of an article that would or could be sold at the beach or would be sold.

Mr. Harry Silbert: Well, Judge -- Judge Mickelson who tried the case in the lower court said that all of the items in his opinion, all of the items, a loose-leaf notebook, the can of wax, the stapler and the toy submarine would be properly sold at the beach, so that they would come within this exception if they were sold within -- at the beach in the County of -- in Anne Arundel County.

Justice Potter Stewart: Well, my question is to this, it has to the meaning of Section 509.

Mr. Harry Silbert: Right.

Justice Potter Stewart: Does this mean that items that actually are sold at a beach are exempt from the provisions of 521 (Voice Overlap) --

Mr. Harry Silbert: That's correct.

Justice Potter Stewart: -- other laws or does it mean that items of a kind that are usually sold at the beach are exempt from the provisions of 521 wherever in fact they maybe sold?

Mr. Harry Silbert: Well I think the --

Justice Potter Stewart: Is there any holding of by your Maryland court?

Mr. Harry Silbert: I don't think that there has been a judicial review.

It was passed somewhere in 1951 and -- 1951 or 1941 rather.

I don't think it's been brought up but the (Voice Overlap) --

Justice Potter Stewart: There's no construction of the statute by your language.

Mr. Harry Silbert: The language -- the statute language of the statue is very clear.

It says anything sold incidental to the operation or customarily sold at a beach.

Justice Potter Stewart: I think you've answered my question that the Maryland courts have not construed it.

Mr. Harry Silbert: I haven't had any case on the construction of this.

Thank you sir.

Chief Justice Earl Warren: Mr. Jones.

Argument of John Martin Jones, Jr.

Mr. John Martin Jones, Jr.: Mr. Chief Justice, may it please the Court.

I had hoped to address myself primarily to the arguments -- constitutional arguments which I considered to have been raised by this appeal.

However, I find it necessary at this point to restate the law of Maryland and the facts of this case.

I say first of all, that the Sunday sales law with which we are dealing which is Section 521 of Article 27 of the Maryland Code has its origins much for the fact that my brother stated.

It's not 1723.

It goes back into the 1600s.

That's important for several reasons.

The first Sunday sales law goes back to 1674 and it forbad two things.

It forbad the sale of liquor on Sunday and it forbad gambling on Sunday.

Now, that I think is very important because we will find that the Sunday sales laws in Anne Arundel County today permit the sale of beer, wine and liquor.

They permit gambling on Sunday.

They permit one arm bandits.

They permit the so-called slot machines of other descriptions.

They permit the sale of tobacco, cigars and cigarettes.

They permit dancing saloons which is a quaint phrase that still used.

They permit various types of recreation of all sorts which I'll take up in a moment.

Now, those are basic Sunday laws and the way they come about was simply this.

There is a broad base Sunday law in effect in Maryland which is Section 492.

Now, that Sunday law says, "There shall be no work or labor."

It does use the term "Lord's Day" in that Section.

It goes back to the language of the ancient colonial days for that matter.

But that's not the Section with which we are dealing.

That's the one that says, "No work or labor".

The Section with which we are dealing is Section 521 which makes no reference to the Lord's Day.

It merely says that on Sunday, certain items cannot be sold and it exempts from the items or rather permits certain items to be sold which are the basic necessities, the type of thing that the housewife may run out off over the weekend such as bread, milk, fruits and also certain items for recreational purposes.

Now, Section 509 is a specific exception.

In answer to Mr. Justice Stewart's question, Section 509 is a specific exception applicable in Anne Arundel County.

There are other sections dealing with other counties and under the home rule amendment, certain cities have the right by ordinance to create additional exceptions.

509 exempts from the general statute the one that prohibit sale except for certain items, it exempts or adds to those items which maybe sold if you will the items which we are dealing with here, namely, souvenirs, novelties, and accessories essential to or customarily sold at beaches, bathing beaches, dancing saloons and that type of thing.

Other laws permit the sale of liquor on Sunday and other laws still permit gambling on Sunday in Anne Arundel County.

Justice Potter Stewart: Not to me, that exemption in -- in 509 is not entirely clear --

Mr. John Martin Jones, Jr.: No, sir.

Justice Potter Stewart: -- whether that means items of a kind that are normally sold at the beach are exempt from the provisions of this in Anne Arundel County exempt wherever they sold or must they actually be and in fact they're sold at a beach.

That's --

Mr. John Martin Jones, Jr.: Yes Your Honor, and that's why I like to restate the facts brief -- briefly and adjust myself to that question.

You asked if there had ever been any judicial construction.

In this particular case, the Court recited the arguments which my brother is making here today and pointed out that it was not necessary to determine whether it apply only at the beach or whether it apply generally.

The State took the position and it apply generally I might say.

But we said these particular items are not items sold at a beach.

Justice Potter Stewart: A toy submarine might be.

Mr. John Martin Jones, Jr.: Well, that we said we admitted was a debatable one and it's a question of fact.

Is it or is it not?

We didn't think it was so clear the judge could say as a matter of law that it was not.

We thought it was a question for the trier of fact, the trier of fact found against it.

They found that it was an item which was not customarily sold at a bathing beach.

But when we come to a can of simonize, which is one of the items here, we come to a stapler and staples and when we come to loose-leaf binders, we say that those items are not items customarily sold at the beach.

If at the bottom of the beach it would have been illegal, we don't say that you can buy things at the beach that you can buy elsewhere.

Chief Justice Earl Warren: We'll recess now.

Mr. John Martin Jones, Jr.: Pardon me, sir.

Chief Justice Earl Warren: Mr. --

Print this transcript Transcript: 

Argument of John Martin Jones, Jr.

Mr. John Martin Jones, Jr.: Mr. Chief Justice, may it please the Court.

Immediately prior to the luncheon recess, I had attempted and had started to compare the Sunday sales laws of the colonial period -- period of Maryland with those in existence -- there's an existence today.

Quite unlike the colonial period when we had laws, commanding, the attendance of church laws, prohibiting liquor being sold on Sunday, laws prohibiting gambling that type of thing.

The picture of Sunday in Anne Arundel County today is simply this.

There is no commercial activity except those relating to recreation.

You can keep an amusement park open, a beach -- bathing beach, bath house, picnic grove, dancing saloon, bar, tavern that sort of thing.

Now, like it or not, those are amusements for great segment to the people -- of the people.

It may be that this Court or a legislature could pick more wholesome amusements than dancing saloons and a sale of liquor and gambling.

The fact is that they do exist in Anne Arundel County on Sunday.

That is the Sunday in Anne Arundel County.

Now, that's the state of the law and the state of Sunday as it existed on September 28, 1958.

On that day, seven employees of a large discount house ran by a corporation known as Two Guys from Harrison were arrested, for the sale of the items which we discussed earlier today, namely, the three-ring, loose-leaf binder, the can of simonize, staples and staplers and a toy submarine.

They were arrested because those items did not come within the exceptions set forth in the Anne Arundel County statute.

Now --

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: That is in 521, sir and in 509.509 merely says that Section 521 which deals with sales shall not apply in Anne Arundel County to the extent that it would prohibit sales at bathing beaches of items customarily sold at bathing beaches and novelties, things of that sort.

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: Pardon me sir?

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: 492 is involved only to the extent that it is a general Sunday law which is in effect in Anne Arundel County.

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: No, sir.

They were not charged with that.

To answer Your -- Your Honor's question, you asked how the -- whether it was by indictment or information, it was by warrant before justice of the peace charged in the violation of 521.

That is the -- the setting of this case.

Now, my brother says that this constitutes a law which violates the First Amendment.

We say that they have absolutely no standing to object to the free -- under the Free Exercise Clause of that Amendment.

There's nothing in this record to show that any of the defendants, religious practices were interfered.

In fact, the record doesn't even show if they have any religion or what it is.

There's nothing in the record about that.

We say that under those circumstances, they clearly have no standing to raise the objection that the free exercise of their religion has been, in any manner, hampered by the statute.

Now, in answer to Justice Frankfurter's question, I didn't quite understand my brother's statement as to what his standing was.

We had taken it to be simply this.

That anybody, be he an atheist, be he a Catholic or Jew, any religion or no religion has the right to challenge a law if he says it establishes a religion.

We do not challenge that.

We think you're in --

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: Yes, sir.

We believe that any citizen has if there's a law actually establishing a religion.

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: Yes, sir.

If you have a law that's actually establishing a religion, we feel that --

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: We feel under the Fourteenth Amendment if the legislature --

Unknown Speaker: (Inaudible)

Mr. John Martin Jones, Jr.: Yes, sir.

Well, I'm assuming you were prosecuted under that law Your Honor.

See, the -- these defendants were, this is a criminal prosecution in this case.

The other cases were our three-judge court to enjoin.

I'm sorry, Your Honor.

So, we feel that the question then comes down in this case under the First Amendment.

Is this a law establishing a religion?

Now, putting to one side for a moment the argument of economic coercion, just looking at the statute itself, we say this is hardly a law establishing a religion.

We think if anything it encourages activities which are not ordinarily associated with the -- the Christian Sunday or any other religious observance.

So, let's turn to this argument that's made about economic coercion.

Let's examine it for a moment.

It's been stated several times.

In essence, it's simply this, that because there is a Sunday law which prohibits retail activities, a Sabbatarian who by his religious beliefs is prevented from operating on Saturday and Friday afternoon is in a position where he sells four and a half days a week whereas the non-Sabbatarian sells six.

Well, that in essence, as I understand it is the contention that's made.

And they say that this amounts to the establishment of a religion in this case.

And our position is -- is a simple one here.

And it's simply this.

That in the society in which we live, there must be an accomodation between religion and the civil regulations, that always happens when you have a civil society.

It's not common to this case.

An example was given in the first case of a Catholic -- a Catholic individual who has children that he sends to a Catholic school.

Now, note he sends them to a Catholic school by his voluntary choice, prompted of course, by the articles of his faith, but he does send them to a Catholic school.

That being the case, he also is supporting the public school by taxes which he doesn't use.

It is a public system, a law establishing a religion either is an economic burthen place on this Catholic that's not shared by other members in society.

Is that a law established in a religion?

Could a Catholic come in to this Court and say, "I must be exempt from paying taxes under the general school system?"

And then let us take the case of a man whose religion prohibits the use of medicine.

Could he come in here and say that I cannot be taxed for public health services, that because that puts me under a burthen by doing something, by paying something for which I cannot use because of my religion, I must be exempt from them?

Is that the type of thing the First Amendment was intended to prevent?

Now, we respectfully submit that it was not.

And what about another type of coercion?

What about the selective service cases this Court decided?

Take a situation in which a religion because of the tenets of that faith or render somebody immune from the draft because of many exemption in the draft statute.

Naturally, that's coercion if you wish to call it that.

People who had no religion sometimes we came very religious at the draft board, for those that had a religion that did not prohibit war would naturally be coerced if it is coercion and the change in a religion if they feared serving their country and possibly dying in war.

It's another type of coercion that we have.

And what about aid to religion?

This Court has said that aid to religion is just as bad as an interference with religion.

How have those cases fear -- fair?

Well of course, we have the fact that payments to a Catholic hospital are not illegal.

There's nothing that violates the First Amendment in that if it's for general purpose.

We found that the distribution of schoolbooks to all students including those attending to Catholic school is not necessarily bad.

Now that case actually did involve the First Amendment religious freedom.

It's a due process case but we held it wasn't bad because the purpose was to educate children not to help the religious school.

And what about the reimbursements to the parent sending children to Catholic schools in the Everson case?

How do we square that?

Well, it seems to us that it comes down to just this.

That when you have a direct aid to religion or direct interference, well that's unconstitutional.

But if you have a statute that has a secular purpose, substantial secular purpose, the mere fact that there might be an incidental burthen, an incidental benefit to a particular religion does not make it bad.

And I point that out specifically with the Zorach case.

There was a reference here made that our cases go beyond that on a contrary.

We say our case is clearly to the right of the Zorach case if you wish.

There, there was no secular purpose.

In the Zorach case, this soul purpose about law was to accommodate the school system to religious activities.

Now, I think that was true and there was no dispute between the majority and the minority of this Court on that point.

There was no secular purpose involved in accommodating the school system.

This Court thought that that was a legitimate object and upheld that statute.

Now, we say taking the Zorach case, there, of course, was some incidental coercion I think and the mere fact that school children like to conform as this Court pointed out in Brown versus Board of Education.

Children in school feel when they have treated differently from others.

That this Court sustained the Zorach case even though those who did not go to school -- did not go to religious classes, were forced to remain in school during the so-called release time period.

Now, we say that if you compare that case with the McCollum case which was stricken down, the difference we think is this.

That this Court stated in the Zorach case in McCollum, there was an actual use of state supported school property, the school buildings for these religious activities.

Now, we say that wasn't just the case of real estate being used but it was a direct, a direct participation by the school system in these religious practices.

That we think is the difference between the Zorach case and the McCollum case, direct participation by the State.

Now, direct participation, direct burthens are unconstitutional but we respectfully submit that when there is a valid secular purpose, the mere fact that you have an incidental burthen or an incidental benefit is part of the price we pay for having a lay state and not a state which is governed by religion but of a civil regulation.

I might add that in the -- by the same token the various other incidental encouragements which we have by laws making Christmas a legal holiday by this Court itself not sitting on Sundays as to other courts by the very oath that the attorneys of this bar take, by the very try that's given by the Court trier.God save this Honorable Court.

Those are things that are tolerated if you wish because they do not directly forward a religion or directly impede one.

They're incidental to our culture.

Now, finally I would like to emphasize the fact that this is an attack on a Maryland statute itself.

Keep in mind, none of these individuals have come in here and shown any economic damage, none of them have said that it interferes with their religion.

It is a flat attack on a statute -- on its face.

Now, if this Court should decide, which I respectfully submit it should not, that Sabbatarians must necessarily be exempted from the Sunday laws or that Sunday laws are invalid as applied to Sabbatarians.

The convictions in this case must still stand Your Honors.

This is not a case where there is a Sabbatarian objecting.

He's objecting to the face of the statute.

And I think the answer is if they're invalid as to Sabbatarians, it does not affect the outcome of this case.

Now, we move to the other contentions which my brother made, if I may.

He says that these laws are arbitrary or arbitrary classifications.

In making that argument, he assumes the point an issue.

On a one hand, he -- it's consistent but he still assumes the point an issue.

He says, "This is a religious day.

It's perfectly ridiculous to sell beer and whiskey and not sell orange juice.

It's perfectly ridiculous to permit gambling and not to sale a blue slip binders."

Well, the answer is that this is a not a religious statute.

It's a civil regulation which encourages, if you will, recreation.

The recreation, as I have mentioned, involved in drinking, involved in frequent in tavern is there for people who enjoy it, and it is a religious type of -- I mean a -- it is a -- an -- a recreational type of thing.

I don't think the same as true about selling cans of orange juice or loose-leaf binders.

If we examine the various items which can be sold, they clearly fall into those two categories.

Those which go to necessities such as bread and milk, that type of thing, those that go to recreation such as dancing saloons, bath houses, beaches, taverns and things of that nature, and slot machines.

Thank Your Honor, and pinball machines.

I think that is the difference between the classification test that we have here and the one that my brother would have to apply which has no application because it is not a religious a statute.

Now, insofar as there's been an attempt to say that there is some law in Maryland that says somebody at the beach can sell and somebody a block away cannot sell, at least the Attorney General's office knows of no such law.

This law has been enforced in Maryland in this manner in Anne Arundel County.

That if the item is one which is customarily sold at a beach house, a bathing beach or what have you then it is permitted.

These people were not arrested because of the fact that they sold something that could be sold at the beach other than at the beach.

That's the argument that they made.

In fact, they didn't quite make that argument.

They said that the toy submarine is one which could be sold at the beach and therefore, we should be allowed to sell it here.

The State didn't argue to the contrary.

The State argued that it was not an item which was so clearly one that was sold at the beach that the Court should say as a matter of law.

It was a question of fact.

The Court decided against it.

The Court of Appeals of Maryland upheld that and specifically said in their opinion that they did not have to decide as other question which was raised, as to whether or not the sales could be made elsewhere than at the beach itself.

And I call Your Honor's attention to the Section of the -- of the brief where that passage is found.

It's at page 41 of the appellant's jurisdictional statement which is a statement from the Court in which they specifically point out that they do not have to decide that point since it's not involved in this case.

That is the only judicial determination or interpretation of Section 509 in answer to Justice Stewart's question.

Now, what is the other reason or reasons why this statute it says -- it said to be unconstitutional?

Well, they say the statute is vague.

They said that there, our people Two Guys from Harrison who sell, as my brother said everything under the sun, would not know what he -- what they could sell and what they couldn't sell because we have an item of things customarily sold at bathing beaches.

But, we respectfully submit that that is a valid classification, it's not vague.

The person of ordinary intelligence can tell what's customarily sold there and as this Court has said the mere fact that you cannot define it with mathematical precision doesn't render it bad and as this Court has also said in the Boyce Motor Lines case, "It's not unfair," and this is "to require that one who deliberately goes peerlessly close to an area of proscribe conduct shall take the risk that he may cross the line."

Well, it seems to us that when a discount house sells all these items that they -- it behooves them to come in and say that they were misled by the language of the statute which relates specifically to items sold at bathing beaches an incidental thereto.

The last point which was raised by my brother is a fact that these exceptions are not uniform throughout the State.

Well, our answer to that is two fold.

Number one, he didn't raise it below.

There's no contention in the Court of Appeals on that ground.

But secondly, and of equal importance, is the fact that this Court has already decided the case, a Maryland case, a case from Anne Arundel County, a case that had exceptions peculiar to Anne Arundel County and has upheld it and that dissolves for Salsburg case in 346 U.S.

In that case, we have what it -- is known in Maryland as a Bowers Act which prohibits in misdemeanor prosecutions, evidence illegally obtained, obtained in violation of the search and seizure laws.

There is an exception from that statute of Anne Arundel County in gambling prosecutions.

In gambling prosecutions in Anne Arundel County such evidence is admissible.

Now, it came to this Court on the grounds that that was illegal because it was not statewide in application.

It violated also its principles as were alleged including the Equal Protection Clause.

This Court said that the obligation was not on a state to prove the reason for that exemption but it was the obligation on the other side to prove the lack of such reason.

Now here, we come up with a record that is totally barren.

They didn't even raise the point below.

We respectfully submit that as this Court said, the mere fact that use county lines as a distinction does not necessarily make it bad, the burthen is on the party attacking it.

He has not only not carried that burthen in this case, he didn't even attempt to below.

There's nothing in the record on it.

So, we feel that there can hardly be any contention made on that point.

In summary, we submit that this is purely a case of a civil -- of a civil regulation which has been enforced in Maryland for many years.

We have no exception for the Jewish faith.

We have no exceptions at all, except for taking the rights.

We respectfully submit that that law does not violate any of the fundamental freedoms which were incorporated by the Fourteenth Amendment, that it does not violate the First Amendment or any decision in this Court.

Thank you.