Mike Kueber's Blog

September 14, 2012

Blue laws

Filed under: Culture,Law/justice,Religion — Mike Kueber @ 12:28 am
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While sitting on a friend’s patio in Aneta, ND this past week, he told me about a recent trip to his apartment’s laundry room.  An elderly female neighbor passed by him and asked if he was doing his laundry?  When he confirmed the obvious, she frowned and said, “It is Sunday, you know.”

My first reaction was to laugh nostalgically because I remember growing at a time when my dad felt strongly that a farmer should not work in his fields on Sunday.  And businesses were actually prohibited by state law from operating on Sunday.  When I told my Aneta friend about my dad’s attitude, he informed me that the town’s Lutheran minister several years ago released the farmers to harvest on Sunday because that was important to their livelihood.

Legal prohibitions on businesses from operating on Sunday were called blue laws, and they were endemic to America, Canada, Scandinavia, and Germany.  That explains why Scandinavian/German North Dakota would have some of the strongest blue laws in America.  I remember my dad in his later years voting against authorizing businesses to be open on Sunday.  When I suggested that he could simply avoid doing business with those vendors, Dad responded that he was thinking about the businessman’s employees, who would be forced to work.

In connection with my previous post about secular government and the separation of church and state, one could argue that blue laws breach the constitutional wall of separation.  But the U.S. Supreme Court does not agree.  In 1961 in McGowan v. Maryland, the Court approved blue laws, concluding that despite their religious origin, these laws currently have a legitimate secular, non-religious government objective – i.e. a day of rest.

What are blue laws doing today? 

In my adopted home state of Texas, car dealerships are required to be closed on one day of the weekend, either Saturday or Sunday.  Beer can’t be sold before noon on Sunday and liquor stores must be closed all day Sunday.  

In my home state of North Dakota, most retailers can’t open on Sunday until noon.

September 30, 2010

Constitutional conservatives and the separation of church and state

When I decided to run for Congress, one of my first tasks was to create a campaign brochure that described my position on various important issues.  I didn’t initially think that the relationship of government and religion was an important issue, but my primary opponent, Quico Canseco, did.  His website said the following: 

  • Faith and a Respect for Life:  Our country was founded on Christian principles but now secular liberals are trying to wipe our Christian identity from the public domain. Nativity scenes, the Ten Commandments and the name Jesus Christ are now being removed from common public areas. Our schools teach “tolerance” and understanding of other faiths but the subject of Christianity is avoided at all cost. We must fight back against turning our country into an atheist nation. The consequences would be far-reaching. We see it now in the disrespect our society shows for human life. Babies are now a choice that some make like deciding what color car they want. We must vigilantly fight back against these evil forces and defend our Christian values at all costs. The alternative is an unacceptable legacy to leave our children and could ultimately end our nation as we currently know it.

Because Canseco’s position struck me as extreme, I decided to include a paragraph in my first campaign brochure supporting the separation of church and state.  My brochure said the following:

            SEPARATION OF CHURCH AND STATE

  • Don’t ostracize those who don’t worship Christ.  I disagree with Quico Canseco’s suggestion that Congress should sponsor Christianity.  Christianity and religion in America will survive without sponsorship from Congress.   

My two conservative friends/advisors – Kevin Brown and Kent Cochran – warned me that the separation of church and state was some fallacy created by liberals to justify their secular positions, but I had studied enough government and constitutional law to reject their warning as misinformed.  As I went door-to-door with my brochure, however, I quickly learned that a lot of conservative voters were similarly misinformed.  A surprising number of voters specifically told me that there was no such thing as “separation of church and state” in the constitution, and many even knew that the U.S. Supreme Court had created the concept based on a letter written by Thomas Jefferson (which made Jefferson persona non grata to many conservatives).  Furthermore, they were upset that Islam and other minority religions seemed to receive more favorable treatment than Christianity in many forums.

Based on this voter feedback, I revised my brochure prior to my mass-mailing to 28,000 Republican primary voters.  The revision, as follows, accommodated conservative concerns without sacrificing fundamental principle:

            RELIGIOUS TOLERANCE

  • The Bill of Rights prohibits government from establishing a religion or limiting the free exercise of religion.  While this clearly means that government can’t discriminate in favor of our country’s dominant religion – Christianity – it does not mean that minority religions should be afforded a preferred status – like affirmative action.  I disagree with Quico Canseco’s suggestion that Congress should sponsor Christianity.  Christianity and religion in America will survive – and thrive – without sponsorship from Congress.   

Even as revised, however, several constituents subsequently objected to the provision, and I assume they were reading between the lines to conclude that I was not their type of guy.

The “separation of church and state” dispute reveals a bigger problem that I have with so-called constitutional conservatives.  They demagogue difficult constitutional issues by suggesting that the issues are simple.  For example, the most popular provision in the Tea Party’s Contract from America requires “each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.”  Do they really think that the Democrats will be unable to identify a provision that authorizes ObamaCare?  Do they really think this requirement will improve governance?  Although this provision seems, at best, innocuous, the Republican leaders in Washington decided to further demagogue it by including it in their Pledge to America.

(Incidentally, the fourth most popular provision in the Tea Party’s Contract from America requires that the federal government adopt “a simple and fair single-rate tax system by scrapping the internal revenue code and replacing it with one that is no longer than 4,543 words—the length of the original Constitution.”  What does the length of the original Constitution have to do with the tax code?  It seems than any reference, however misplaced, to the original Constitution elevates an argument in the eyes of a constitutional conservative.)

Getting back to the original argument about the separation of church and state, the constitutional conservatives are correct in stating that those words are not in the Constitution, but they are fundamentally wrong to suggest that the Constitution must be read narrowly or strictly.  A document of only 4,543 words must speak in general terms, and a government must have the ability to act in reasonable accord with those general terms.  Even the conservatives’ patron saint, Justice Anthony Scalia, says the Constitution should be construed reasonably, not strictly.

There are a plethora of unchallenged reasonable constructions – the Constitution doesn’t say anything about “one person, one vote,” but Americans accept that is fundamental law under the “equal protection” clause.  Similarly, Americans accept that it is unconstitutional to discriminate or to have separate, but equal schools, but there is no such language in the Constitution. 

Responsible leaders should refuse to encourage this misinformation about constitutional construction and should certainly decline to demagogue it.  Quit bashing the Supreme Court.  If constitutional conservatives seriously think the Supreme Court has misinterpreted the Constitution, that document is very clearly about how to amend it.