Any law that prohibits an activity on a specific day is a “blue” law, a term whose etymology is a little fuzzy. My personal favorite theory is that it comes from Cromwellian England: apparently Olly’s supporters wore blue stockings, and apparently they were notorious wet blankets.[i] Regardless of origin, calling someone “blue” in the Enlightenment era was like a Boomer calling someone a square. In western countries like the US, blue laws are generally enforced on Sundays, a legacy of the very “blue” Christian sects like the Puritans, who thought they might find Eden on the other side of a miserable Atlantic boat ride.
Blue laws have had a unique coalition of support in America. On the one hand, of course, there are the religious groups intent on keeping their holy day free of sin. Though we do sometimes keep that line between church and state pretty murky, that in and of itself would not hold up to a constitutional challenge. Blue laws have survived because religious groups had secular allies—namely, unions, who argued for the laws in an effort to secure a day of rest for workers.
Quick Legal Background!
1961 was a big year for blue laws. The Supreme Court heard four (!) cases on various states’ restrictions, after barely addressing the topic for the first 160-odd years of American nationhood. In all four, the court ruled strongly in favor of the laws. McGowan v. Maryland is generally regarded as the most important of these four. In it, some employees at a discount retailer were charged with conducting sales of non-exempt items on a Sunday. Maryland’s pretty all-encompassing blue law forbade selling anything except “tobacco, confectionaries, milk, bread, fruits, gasoline, oils, greases, medicines, and periodicals,” in what I consider a clear attempt to legislate the fourth commandment, “Remember the Sabbath day, and just smoke and eat candy.” The employees threw four arguments at the wall, but none of them stuck. They argued it violated the Free Exercise clause of the first amendment, but since they weren’t actually claiming that the law kept them from practicing their own religion, they didn’t have standing.[ii] They tried saying it was too vague, violating the Due Process clause, but the court decided it was clear enough. The one that was most intuitive to me was the Equal Protection argument: aren’t those exceptions pretty arbitrary? Why can I buy a magazine, but not a toy for my kid? Or, more pertinent to this article, a beer? The court, however, applied the not-super-strict “rational basis standard” and decided that the state had a rational reason for choosing the exceptions they did. When you fight the government under the rational basis standard, you usually lose.
The plaintiffs’ fourth and primary argument was that the law violated the Establishment Clause, which forbids the government from establishing a state religion or, more generally, from favoring one religion over another.[iii] Blue laws clearly have Christian origins and were designed, the plaintiffs argued, to induce people to go to Christian church and otherwise follow a Christian commandment. The justices agreed on the origins, but determined that blue laws had evolved to serve a secular, allowable purpose: a universal day of rest.
A Rundown of Existing Blue Laws
Despite this Supreme thumbs up, many blue laws have been rolled back in the decades since McGowan, a result of changing societal norms. Nine states—Connecticut, Kentucky, Maine, Massachusetts, New York, Oklahoma, North Dakota, South Carolina and Missouri—still have some kind of a Sunday “general law” (one like Maryland’s, prohibiting all activity, with certain exceptions) on the books.[iv] Most other states have a short list of prohibited or regulated items and activities. These can include things like gambling, sex toys (lookin’ at you, Florida), and selling a car.[v] But of course, by far the most common restrictions concern the buying or selling of alcohol.
At this point, all 50 states allow bar/restaurant sales on Sundays, and 45 allow tastings, at least to some extent. Indiana and Arkansas are the only states to ban all retail alcohol sales on Sundays.[vi] A few other states (Georgia, Nebraska and South Dakota) require a local referendum for Sunday sales, while still others—including Minnesota, Mississippi, Montana, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia—ban the retail sale of liquor or anything above a certain ABV. The most interesting thing about that list? Only two are repeats from the “general law” list: Oklahoma and South Carolina. The other seven general law states have made alcohol one of the exceptions to that law,[vii] while the other 13 retail sales-limiting states have done so through targeted legislation. I was a little nonplussed to find that my current home state of New York has a general law, since its Sunday alcohol rules—and its Sunday whatever rules—seem about as liberal as it gets.[viii] That general law may still be on the books, but the exceptions to it are no longer exceptional.
More common than a total Sunday ban is an hours limitation, usually mandating a later start to alcohol sales and service. Many states are loosening these laws as well. In New York, the governor just made it legal to serve as early as 10AM, up from noon (aka post-church o’clock), with special licenses available that will take you up to 8:00 in the damn morning. If the press release photo is any indication, this was to appease the mimosa lobby. When I tended bar in Texas, we had to make sure a Sunday morning customer had food in front of them. No booze without food before noon on Sunday in the Lone Star state. Even further into the weeds, many states, from Kentucky to New Hampshire to Mississippi, allow local municipalities to opt-in or -out of state blue laws, so all this changes from county to county.[ix]
So are we good here?
In a 2007 article in the Vanderbilt Law Review, Leslie Lawrence-Hammer argues that a blue law case might garner a different result today. The Court’s thinking on Establishment Clause questions has evolved and, as discussed above, so have the laws themselves. Even if we believe the 1961 majority that blue laws had the secular purpose of outlawing work to guarantee a day of rest, with exceptions only for leisure-oriented business, it’s hard to argue that that’s the case now. Thousands of exceptions have been built into the remaining laws, almost all of which are designed to increase economic activity (after all, America’s one true God is the almighty Dollar).[x] Just about the only prohibitions that have survived this purge are the leisure-oriented ones! It would be fascinating to see if a new legal challenge to general blue laws had legs.
Even if general laws were found unconstitutional, however, there would still be the laws specifically targeting alcohol sales. Decades of research show that restrictions on sales hours reduce crime, accidents and public health issues, so limiting them is clearly a legitimate exercise of government’s Constitutional police power. That the restriction happens to fall on a Sunday does not inherently invalidate that, but given the impact of that restriction—limited or no hours on a prime shopping day—and law changes allowing pretty much every other business to operate, a liquor store owner could argue that the law violates Equal Protection.
This is a topic I will touch on plenty in the future, as there is clearly much more to think about. Blue laws are one of the more rapidly changing elements of US liquor law, and one of the most visible, as they impact producers, distributors, purveyors and consumers. If you find yourself wanting to know more than this quick background piece provided, make sure you check out the references below and on the bibliography page.
[i] This theory can be found on Wikipedia, citing the OED. Not having access, I did not check that reference, and am just shamelessly regurgitating it.
[ii] In two of the other 1961 cases, the plaintiffs, Orthodox Jews who closed their shops on Saturdays, did have standing on this question. The court determined that while prohibiting them from opening on Sunday was an indirect burden on their religion, that did not invalidate the McGowan case’s logic. The law was still just a regulation of a secular activity. See Leslie Lawrence-Hammer, “Red, White, but Mostly Blue”, 1285-7
[iv] Six of these (Connecticut, Kentucky, Maine, Massachusetts, New York, and Oklahoma) are true general laws, while two (North Dakota and South Carolina) apply their laws only to certain hours on Sunday, and one (Missouri) just has a list of prohibited activities that is long enough to effectively be a general law. Found in Lawrence-Hammer, pg. 1278, and verified/updated by me. Sub-endnote: often the penalties for violating these laws appear not to have been updated in decades. A violation generally costs less than a parking ticket.
[v] One of these things is not like the others. While almost all the blue laws that have persisted regulate perceived sins, several states also still have car-selling restrictions. Car dealers seem to like having the day off, even actively opposing the proposed repeal of Maine’s law in 2005.
[vi] Except for growlers, in a nod to the state’s thriving craft beer scene.
[vii] As described in note four, North Dakota forbids alcohol sales, along with everything else, during certain hours. Missouri does not list alcohol sales among its many prohibited activities.
[viii] Interestingly, the state courts found New York’s general blue law unconstitutional in 1976, citing its haphazard permissions and prohibitions. I guess the legislature’s response was not to repeal the law, but to individually lift all the restrictions. See