Braunfeld v. Brown Primary Source eText

Primary Source

U.S. Chief Justice Earl Warren poses in his office, Washington, D.C., March 19, 1961. Warren delivered the judgment of the Supreme Court in Braunfeld v. Brown, which upheld the constitutionality of a Pennsylvania law that required businesses to be closed U.S. Chief Justice Earl Warren poses in his office, Washington, D.C., March 19, 1961. Warren delivered the judgment of the Supreme Court in Braunfeld v. Brown, which upheld the constitutionality of a Pennsylvania law that required businesses to be closed on Sunday. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION. Published by Gale Cengage AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: Earl Warren

Date: May 29, 1961

Source: Braunfeld v. Brown, 366 U.S. 599 (1961). Available online at (accessed February 5, 2003).

About the Author: Earl Warren (1891–1974) was born in Los Angeles and graduated from the University of California law school in 1912. From 1939 to 1943, he was California's attorney general, and from 1943 to 1953, he served as its governor. Warren was appointed chief justice of the U.S. Supreme Court in 1953, a position that he held until 1969. His tenure was noted for decisions in support of civil rights and individual liberties.


Jacob Braunfeld, an Orthodox Jew, closed his retail clothing store in Philadelphia on Saturdays to observe the Jewish Sabbath. Pennsylvania law declared that his store, and similar businesses, could not be open to the public on Sunday, in observance of the Christian Sabbath. Braunfeld, though, wanted to be able to open on Sundays because he was closed on Saturday. He argued that to pay his expenses and make a profit, he needed to be open six days a week. He believed that the Pennsylvania blue law mandating Sunday closings violated his freedom of religion. He also argued that mandatory Sunday closings interfered with Judaism's attempts to gain new followers. In addition, these laws gave an unfair economic advantage to those who kept their businesses open on Saturday.

The blue laws—so called because they were originally printed on blue paper—can be traced to colonial New England, when the legislatures tried to enforce moral and religious standards. Many of these laws were eventually discarded, but in some states they remained on the books. The surviving blue laws were generally aimed at regulating activities on Sunday, such as forbidding the opening of retail stores or prohibiting certain types of recreation or entertainment. Braunfeld's attorneys argued that Pennsylvania's blue laws violated the U.S. Constitution, specifically the First Amendment. The establishment clause of the amendment says that "Congress shall make no law respecting an establishment of religion"; the free exercise clause forbids Congress from "prohibiting the free exercise thereof." The establishment clause prohibits the federal government from creating a national religion. The free exercise clause prevents the government from interfering with an individual's religious beliefs.

Braunfeld's case made it to the Supreme Court, where, by a 6–3 vote, the Court ruled that Pennsylvania's blue laws were constitutional. Writing for the majority, Warren cited several reasons for the Court's decision. First, the law did not specifically target Orthodox Judaism, nor did it prevent anyone from practicing that religion. Also, the blue laws did not force people to adopt any religious belief, nor did they make the holding of any religious belief a crime. In addition, not all Orthodox Jews were burdened by the Sunday closing laws; only those who wanted to work on that day were affected.


Although public opinion in general supported the Court's decision, those who believed in the strict separation of church and state did not, and the decision of the Court was not unanimous. Justice William O. Douglas, for example, dissented from the majority, emphasizing that even though the majority of people in America are Christians who worship God on Sunday, they do not have the right to force that practice on others. Also dissenting was Potter Stewart, who wrote that Pennsylvania's blue laws forced an Orthodox Jew to choose between economic needs and his faith. He believed that those laws trespassed on the constitutionally guaranteed right to the free exercise of religion.

Primary Source: Braunfeld v. Brown [excerpt]

SYNOPSIS: In these excerpts, the Court majority, including Chief Justice Earl Warren, ruled that Pennsylvania's blue laws, involving the forced closing of businesses on Sunday, were constitutional. These laws did not target any specific religion and placed only an indirect burden on the members of a particular religion.

Appellants are members of the Orthodox Jewish Faith, which requires the closing of their places of business and total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. As merchants engaged in the retail sale of clothing and home furnishings in Philadelphia, they sued to enjoin enforcement of a 1959 Pennsylvania criminal statute which forbade the retail sale on Sundays of those commodities and other specified commodities. They claimed that the statute violated the Equal Protection Clause of the Fourteenth Amendment and constituted a law respecting an establishment of religion and that it interfered with the free exercise of their religion by imposing serious economic disadvantages upon them, if they adhere to the observance of their Sabbath, and that it would operate so as to hinder the Orthodox Jewish Faith in gaining new members. Held: The statute does not violate the Equal Protection Clause of the Fourteenth Amendment nor constitute a law respecting an establishment of religion.…

Mr. Chief Justice Warren announced the judgment of the court and an opinion in which Mr. Justice Black, Mr. Justice Clark, and Mr. Justice Whittaker concur.

This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. Among the questions presented are whether the statute is a law [366 U.S. 509, 601] respecting an establishment of religion and whether the statute violates equal protection. Since both of these questions, in reference to this very statute, have already been answered in the negative … the only question for consideration is whether the statute interferes with the free exercise of appellants' religion.

Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith, which requires the closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute.

Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above.

A three-judge court was properly convened and it dismissed the complaint on the authority of the Two Guys from Harrison case.…

Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise [366 U.S. 599, 602] of their religion because, due to the statute's compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath.

Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants' religion is impeded, that religion is being subjected to discriminatory treatment by the State.…

… [T]he statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday.

And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives [366 U.S. 599, 606] open to appellants and others similarly situated—retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor—may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.

To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless.

Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. (Year Book of American Churches) for 1958.…

Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test [366 U.S. 599, 607] for determining whether the legislation violates the freedom of religion protected by the First Amendment.

Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. Connecticut, supra, at pp. 304–305.

As we pointed out in McGowan v. Maryland, supra, at pp. 444–445, we cannot find a State without power to provide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquility—a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation.

Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. Ante, at pp. 450–452. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here.

However, appellants advance yet another means at the State's disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed and the State's interest in having all people rest one day would be satisfied.

A number of States provide such an exemption, and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring.

Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must [366 U.S. 599, 609] remain closed on that day; this might cause the Sunday-observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day.

This might make necessary a state-conducted inquiry into the sincerity of the individual's religious beliefs, a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs, a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring. For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.

Mr. Justice Harlan concurs in the judgment. Mr. Justice Brennan and Mr. Justice Stewart concur in our disposition of appellants' claims under the Establishment Clause and the Equal Protection Clause. Mr. Justice Frankfurter and Mr. Justice Harlan have rejected appellants' claim under the Free Exercise Clause in a separate opinion.

Accordingly, the decision is Affirmed.

Further Resources


Schlossberg, Eli W. The World of Orthodox Judaism. Northvale, N.J.: Jason Aronson, 1996.

Sherman, Moshe D. Orthodox Judaism in America: A Biographical Dictionary and Sourcebook. Westport, Conn.: Greenwood, 1996.

Sokol, Moshe Z., ed. Engaging Modernity: Rabbinic Leaders and the Challenge of the Twentieth Century. Northvale, N.J.: J. Aronson, 1997.

WEBSITES "What Orthodox Jews Believe." Available online at; website home page: (accessed February 1, 2003).

Eliezer Segal's Home Page, University of Calgary. "Varieties of Orthodox Judaism." Available online at; website home page: (accessed February 1, 2003).

Jewish Virtual Library. "Orthodox Judaism." Available online at; website home page: (accessed February 1, 2003).