Brandon Bryer, Associate Member, University of Cincinnati Law Review
Whether for the thrill of the chase, the appetizing reward, or the priceless memories made amongst family and friends, hunting has become a national pastime across the United States. However, access to this American pastime is not uniform across state lines. For millions of Americans populating eleven states, the law restricts or entirely bans the ability to hunt on Sundays. In Maine and Massachusetts, hunting on Sunday is entirely prohibited without exception. Maryland adopts a county-by-county patchwork approach where depending on the county, Sunday hunting is either permitted, banned, or allowed only during certain hours. Other states such as West Virginia permit Sunday hunting on privateland with written permission from the owner, but limit accessibility to hunting on the state’s public land.
Despite today’s different regulatory approaches, the commonality linking all Sunday hunting restrictions is their genesis in Puritan-era Sunday closing laws. Conventionally termed “blue laws,” Sunday closing regulations expressly sought to limit citizen activity on Sundays to encourage higher church attendance and prevent “the dishonor of God, the reproach of religion, and the profanation of His holy Sabbath.” In contention, the First Amendment to the United States Constitution guards against ratification of any law “respecting an establishment of religion.” In light of their overtly religious origin, can Sunday hunting restrictions survive an Establishment Clause challenge?
II. Sunday Hunting and Closing Laws
As the Supreme Court of the United States has noted, the underlying concept buttressing Sunday hunting restrictions originate from thirteenth century legislation enacted by the English Monarchy. England, and subsequently the American colonies, utilized Sunday closing laws as a means to justify the ends outlined in the Ten Commandments. Specifically, the Fourth Commandment instructs that while six days a week are intended for daily duties and work, the seventh day is for rest dedicated to “the Lord your God.” Sunday, the Sabbath day of rest, is to be observed, kept “holy,” and no work of any kind may performed.
Almost all of the first Sunday restrictions in the American colonies were drafted in expressly religious terminology. For example, a 1629 Massachusetts law stated that Sunday, as the Sabbath day, is to be “celebrated in a religious manner.” An early eighteenth-century Sunday hunting law in New York limited the “disorderly manner of shooting, fishing, and sporting” because such exercises infringed upon the “Lord’s day” and were a “great scandal to the holy Christian faith.” Present day Sunday hunting restrictions, while no longer containing expressly religious language, are merely revised byproducts of these religious laws. Due to such religious influence, the Supreme Court has conceded that “there is no dispute” that original laws suppressing Sunday labor, hunting, and activities “were motivated by religious forces.”
III. The Establishment Clause Disaster
In its first confrontation with the Establishment Clause, the Supreme Court of the United States declared that “the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.” However, at its most generous categorization, the Court’s subsequent attempts to interpret the Establishment Clause have created a confusing disaster. Justice Scalia described the Court’s inconsistent standards as “embarrassing,” admonished one decision as a “psycho-journey,” and even described the seminal Lemon test as “some ghoul in a late-night horror movie.” The Court unapologetically applies different tests to different categories of Establishment Clause issues almost without justification. For example, religious prayer in public school is analyzed under a different litany of tests than religious prayer to begin a legislative session. Due to the varying and inconsistent tests, it is unclear exactly how a court would examine a present day Establishment Clause challenge to a Sunday hunting restriction.
One discernable trend throughout the Supreme Court’s interpretation of the Establishment Clause is that it is necessary to ask what the purposes and primary effects of a particular enactment are. While different frameworks analyze purposes and effects differently, at a high level of generality, these two factors are the invisible strings tying together all Establishment Clause tests. As to purpose, the Court requires a secular legislative motivation for enacting the law. Under one approach, a law that has a solely religious purpose is forbidden by the Establishment Clause, but if the government can identify just one secular purpose, it is constitutional. In another approach, however, the Court will “peek behind the curtain” at the historical context of legislation and if the Court finds religious considerations “entirely” or predominately motivated the enactment of the law, an unconstitutional establishment of religion has occurred.
As to effects, a law cannot be squared with the Establishment Clause if it has a principal or primary effect of either advancing or inhibiting religion. The Court has also elucidated the “endorsement” or “neutrality” test where it critiques whether the law demonstrates a preference for religion over non-religion or preference for a certain sect over another. This mandated religious neutrality rests on the principle that state sponsorship of religion “sends an ancillary message to non-adherents that they are outsiders, not full members of the political community, and tells followers that they are insiders and inherently superior members of the political community.”
The Court’s most recent Establishment Clause decision casts even further doubt as to how a Sunday hunting law would be analyzed. In American Legion v. American Humanist Association, a 7-justice majority held that a 1925 Word War I cross monument did not violate the Establishment Clause. Led by Justice Alito, a non-binding plurality of the Court argued that “longstanding monuments, symbols, or practices” are presumptively constitutional. To the plurality, while a cross is undoubtably religious in nature and has the effect of preferencing a certain religious sect, “the message conveyed may change over time.”
If even further doubt could be created as to challenging a Sunday hunting regulation, Justices Gorsuch and Thomas did just that. In his American Legion concurrence, Justice Gorsuch posed the not-so-rhetorical question: “are Sunday closing laws that bear multiple purposes, religious and secular, problematic?” The concurrence responded: “no one has any idea about the answers to these questions” and noted that the Establishment Clause is “‘in such chaos’ that ‘lower courts have been free to reach almost any result in almost any case.’” Justices Ginsburg and Sotomayor dissented arguing that the cross monument disregards government neutrality by elevating “Christianity over other faiths, and religion over nonreligion.”
The Supreme Court has only once addressed whether Sunday closing laws violate the Establishment Clause. In a cluster of 1961 cases spearheaded by McGowan v. Maryland, the Court held that they did not. Surprisingly, no federal or state court has since addressed the merits of whether a Sunday hunting restriction violates the Establishment Clause. Because it is obvious the Court’s Establishment Clause jurisprudence has developed so erratically since the 1961 decisions, it is appropriate to re-analyze the constitutionality of Sunday hunting restrictions with a fresh set of eyes and a fresh set of legal standards.
Irrespective of what Establishment Clause test is chosen, the core issue is whether a Sunday hunting restriction can be severed from its undeniable foundation in religious preference. The ultimate answer depends entirely upon what analytical framework or combination thereof any given court would find most persuasive. This analysis argues that at its surface level, Sunday hunting laws contravene the Establishment Clause and are thus unconstitutional.
First, Sunday hunting laws have an impermissible religious purpose that predominates any present-day secular justification. Set upon the backdrop of Sunday closing laws, it is undeniable that Sunday hunting restrictions were “motivated by religious forces.” Whether as a means to keep the Sabbath day “holy” or to keep individuals out of the woods and into the church pew, Sunday hunting laws were expressly religious in both letter and spirit. In McGowan, the Supreme Court noted that most Sunday closing laws had evolved from their religious origins and possessed “[t]he present purpose and effect to provide a uniform day of rest for all citizens.” To the McGowan Court, while Sunday hunting laws were originally purposed to advance religious objectives, they were not unconstitutional because their purpose had evolved to provide a non-religious day of “community tranquility, respite and recreation.”
Arguably, if the post-1961 purpose tests are applied, a different answer emerges. As one example, in Wallace v. Jaffree, the Court invalidated a one-minute period of silence in public schools purposed for “meditation or voluntary prayer.” The Court analyzed the legislative history of the law’s enactment and noted the dispositive question was whether the “government’s actual purpose is to endorse or disapprove of religion.” The Court went as far to assess what state Senator introduced the bill and what that Senator’s primary motivations were. Because the Court found the period of silence was solely motivated out of a preference for religion, the Court struck down the law as unconstitutional.
The argument that a law’s sole religious purpose can morph over time into a secular purpose is undermined by both logic and many of the Court’s subsequent purpose analyses. Logically, a law’s purpose is its reason for enactment at the precise time it is enacted. Thus, an original purpose does not evolve. For example, in Jaffree, the Court did not identify the law’s demonstrably religious purpose just to backtrack and argue that this religious purpose had “evolved” into a purely secular one. Contemporary meaning evolves, a law’s purpose does not. Under the post-1961 analyses, the Court interrogates the smallest motivations of a state senator or even the series of specific events resulting in a government display of the Ten Commandments to ascertain what the government’s purpose truly is. Applying this meticulous historical analysis to Sunday hunting laws reveals that both their original enactments and subsequent amendments are products of religious forces.
While a law can be deemed unconstitutional for failing the purpose analysis alone, Sunday hunting laws also have a principal and primary effect of advancing religion. The laws infringe upon the First Amendment even further in that they have an effect of advancing a certain religious sect over another – namely Christianity. Under the Court’s endorsement test, Sunday hunting regulations send an ancillary message to the numerous denominations whose day of worship is not Sunday that they are outsiders and not full members of the political community. Likewise, denominations who celebrate the Sunday Sabbath day as holy are cast as political insiders, afforded the assurance that their government will restrict citizen activity on their holy day of rest, but not do the same for others.
Justice Douglas was the lone dissenter in McGowan. Even in 1961, Justice Douglas articulated numerous arguments that are relevant to the present-day Establishment Clause inquiry. The first argument flows from the de facto religious nature of Sunday itself. Sunday is a word and a day heavily overlaid with Christian connotations and traditions. Even conceding for the sake of argument that the purpose of Sunday hunting laws can evolve into a secular day of rest, why must this day of rest occur on Sunday? Why not Friday? Why not Wednesday when citizens arguably need a “day of repose” in the middle of the work week? Masked behind the argument that religious purposes can evolve into secular purposes is the unavoidable reality that Sunday is and always will be “the Lord’s day” instructed by the Fourth Commandment to be kept “holy.” As a matter of Christian orthodoxy, that is perfectly acceptable and should be continued. But the Establishment Clause admonishes the government for expressing an interest or creating a personal stake in support of a particular religion “whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha.”
Second, to highlight that Sunday closing laws in effect preference one religion over another, Justice Douglas theorized the public reaction if roles were reversed. Imagine a state legislature passes a Seventh-Day Adventist law that makes it a crime to hunt on Saturdays. Or perhaps Muslims “grew in political strength” and “got a law through a state legislature making it a crime to keep a shop open on Fridays.” Under today’s Establishment Clause approach, the Court would render such laws unconstitutional upon arrival because of the clear religious purpose and preferential effects for one religious sect over another. The argument that the passage of time makes Sunday hunting laws any different is inadequate and deserves closer scrutiny. To ignore this inconsistency as the McGowan Court did can send no clearer message of who is considered a political insider and a political outsider.
For the foregoing reasons, Sunday hunting laws should be called to answer an Establishment Clause challenge. While it is unclear how a state or federal district court would rule on the matter, it is clear that any result is possible under current Establishment Clause cases. Should a Sunday hunting law be challenged, this article assesses important initial considerations, but not every consideration. For example, a successful challenge would require a very specific plaintiff – one who is a hunter either with no religious faith at all or of a faith that does not recognize Sunday as its holy day of worship. The plaintiff would have to satisfy judicial standing requirements, be subject to one of the eleven states with Sunday hunting laws, and passionately argue such laws cast them as a political outsider.
Even with a perfect plaintiff, judges may reasonably believe this matter is best left to the democratic process at a state by state level. Would finding a Sunday hunting law unconstitutional render all Sunday closing laws unconstitutional or are hunting regulations different? Would invalidating a Sunday hunting law be viewed as open hostility to the Christian religion and thus violate the Free Exercise Clause of the First Amendment? How much of a difference does the American Legion decision make? If a court follows the plurality in American Legion that a presumption of constitutionality is afforded to long-standing religious practices, Sunday hunting laws are likely constitutional. However, if the arguments in this article or the American Legion concurrence and dissent are followed, Sunday hunting laws may be rendered unconstitutional. At the very least, Sunday hunting laws and disadvantaged hunters deserve their day in court such that these open-ended Establishment Clause questions may be answered, even if only partially.
 The eleven states that ban, restrict, or limit Sunday hunting are: Delaware, Maryland, New Jersey, North Carolina, South Carolina, West Virginia, Virginia, Connecticut, Pennsylvania, Maine, and Massachusetts. Campaign to Lift State Bans on Sunday Hunting, National Shooting Sports Foundation, http://sundayhunting.org/states/ (last visited September 17, 2020).
 Me. Stat. tit. 12 § 11205 (2020).
 Md. Code Ann., Nat. Res.. § 10-410 (West, 2020).
 W. Va. Code § 20-2-5(b) (2020).
 See Black’s Law Dictionary 183 (8th ed. 2004) (defining blue laws as “statute[s] regulating or prohibiting commercial activity on Sundays”).
 McGowan v. State of Maryland, 366 U.S. 420, 433 (1961).
 U.S. Const. amend. I.
 McGowan, 366 U.S. at 433.
 Lesley Lawrence-Hammer, Red, White, but Mostly Blue: The Validity of Modern Sunday Closing Laws Under the Establishment Clause, 60 Vanderbilt Law Review 1273, 1274 (2019).
 Exodus 20:8-10
 McGowan, 366 U.S. at 546.
 McGowan, 366 U.S. at 434 n.10
 McGowan, 366 U.S. at 431.
 Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).
 Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J., dissenting).
 Lee v. Weisman, 505 U.S. 577, 643 (1992) (Scalia, J. dissenting).
 Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J. concurring).
 See Marsh v. Chambers, 463 U.S. 783 (1983).
 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963).
 Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
 Lemon, 403 U.S. at 613.
 Wallace v. Jaffree, 472 U.S. 38, 56 (1985).
 Lemon, 403 U.S. at 612.
 Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000).
 Am. Legion v. Am. Humanist Ass’n, 139 S.Ct. 2067, 2074 (2019).
 Id. at 2082.
 Id. at 2084.
 Am. Legion, 139 S.Ct. at 2101 (2019) (Gorsuch, J., concurring).
 Am. Legion, 139 S.Ct. at 2104 (2019) (Ginsburg, J., dissenting).
 See Gallagher v. Crown Kosher Super Mkt., Inc., 366 U.S. 617 (1961); Braunfield v. Brown, 366 U.S. 599 (1961); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); McGowan, 366 U.S. at 420 (1961).
 Only one court has ever addressed a direct Establishment Clause challenge to a Sunday hunting regulation. In Hunters United for Sunday Hunting v. Pa. Game Comm’n, the United States District Court for the Middle District of Pennsylvania found that plaintiffs’ complaint did not allege enough factual allegations as to how a Sunday hunting law violated their religious beliefs and thus “did not have standing to pursue their First Amendment claim.” 28 F.Supp.3d 340 at 349 (M.D. Pa. 2014). Because the plaintiffs in Hunters United lacked standing and did not even allege whether the law violated the Establishment Clause or the Free Exercise Clause, the court did not address the merits. Id.
 McGowan, 366 U.S. at 431.
 Braunfield, 366 U.S. at 602.
 Jaffree, 472 U.S. at 40.
 Id. at 56.
 Id. at 43.
 Id. at 56.
 Admittedly, Justice Alito’s plurality in American Legion revitalized the debate as to whether a legislative purpose may be understood to “evolve.”
 See Jaffree, 472 U.S. at 43.
 See McCreary County v. Am. Civil Liberties Union, 545 U.S. 844, 851-53 (2005).
 McGowan, 366 U.S. at 561 (Douglas, J., dissenting).
 Id. at 565.
 Exodus 20:8-10
 Id. at 563.
 Id. at 565.