Appellants are members of the Orthodox Jewish Faith, which requires the shutting of their topographic points of concern and entire abstinence from all mode of work from nightfall each Friday until nightfall each Saturday. As merchandisers engaged in the retail sale of vesture and place trappingss in Philadelphia, they sued to enjoin enforcement of a 1959 Pennsylvania condemnable legislative act which forbade the retail sale on Sundays of those trade goods and other specified trade goods. They claimed that the legislative act violated the Equal Protection Clause of the Fourteenth Amendment and constituted a jurisprudence esteeming an constitution of faith and that it interfered with the free exercising of their faith by enforcing serious economic disadvantages upon them, if they adhere to the observation of their Sabbath, and that it would run so as to impede the Orthodox Jewish Faith in deriving new members. Held: The legislative act does non go against the Equal Protection Clause of the Fourteenth Amendment nor represent a jurisprudence esteeming an constitution of faith. Two Guys from Harrison-Allentown, Inc. , v. McGinley, ante, p. 582 ; and it does non forbid the free exercising of plaintiff in errors ‘ faith, within the significance of the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 600-610.

[ Footnote 1 ] 18 Purdon ‘s Pa. Stat. Ann. ( 1960 Cum. Supp. ) 4699.10 provides:

“ Selling certain personal belongings on Sunday

“ Whoever engages on Sunday in the concern of merchandising, or sells or offers for sale, on such twenty-four hours, at retail, vesture and have oning dress, vesture accoutrements, furniture, housewares, place, concern or office trappingss, family, concern or office contraptions, hardware, tools, pigments, edifice and pound supply stuffs, jewellery, silverware, tickers, redstem storksbills, baggage, musical instruments and recordings, or playthings, excepting freshnesss and keepsakes, shall, upon strong belief thereof in a drumhead proceeding for the first discourtesy, be sentenced to pay a mulct of non transcending one hundred dollars ( $ 100 ) , and for the 2nd or any subsequent discourtesy committed within one twelvemonth after strong belief for the first discourtesy, be sentenced to pay a mulct of non transcending two hundred dollars ( $ 200 ) or undergo imprisonment non transcending 30 yearss in default thereof.

“ Each separate sale or offer to sell shall represent a separate discourtesy.

“ Information bear downing misdemeanors of this subdivision shall be brought within 72 hours after the committee of the alleged discourtesy and non thenceforth. ”

[ 600 ]

MR. CHIEF JUSTICE WARREN announced the judgement of the Court and an sentiment in which MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER concur.

This instance concerns the constitutional cogency of the application to plaintiff in errors of the Pennsylvania condemnable legislative act, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated trade goods. Among the inquiries presented are whether the legislative act is a jurisprudence [ 601 ] esteeming an constitution of faith and whether the legislative act violates equal protection. Since both of these inquiries, in mention to this really legislative act, have already been answered in the negative, Two Guies from Harrison-Allentown, Inc. , v. McGinley, and since plaintiff in errors present nil new sing them, they need non be considered here. Therefore, the lone inquiry for consideration is whether the legislative act interferes with the free exercising of plaintiff in errors ‘ faith. . . .

Appellants contend that the enforcement against them of the Pennsylvania legislative act will forbid the free exercising [ 602 ] of their faith because, due to the legislative act ‘s irresistible impulse to shut on Sunday, plaintiff in errors will endure significant economic loss, to the benefit of their non-Sabbatarian rivals, if plaintiff in errors besides continue their Sabbath observation by shuting their concerns on Saturday ; that this consequence will either oblige plaintiff in errors to give up their Sabbath observation, a basic dogma of the Orthodox Jewish religion, or will set plaintiff in errors at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants besides assert that the legislative act will run so as to impede the Orthodox Jewish religion in deriving new disciples. And the corollary to these statements is that if the free exercising of plaintiff in errors ‘ faith is impeded, that faith is being subjected to discriminatory intervention by the State.

In McGowan v. Maryland, at pp. 437-440, we noted the significance that this Court has attributed to the development of spiritual freedom in Virginia in finding the range of the First Amendment ‘s protection. We observed that when Virginia passed its Declaration of Rights in 1776, supplying that “ all work forces are every bit entitled to the free exercising of faith. ” Virginia repealed its Torahs which in any manner penalized “ keeping any sentiments in affairs of faith, hold backing to mend to church, or the exerting any manner of worship whatsoever. ” But Virginia retained its Torahs forbiding Sunday labour.

We besides took awareness, in McGowan, of the development of Sunday Closing Laws from entirely spiritual countenances to statute law concerned with the constitution of a twenty-four hours of community tranquility, reprieve and diversion, a twenty-four hours when the ambiance is one of composure and relaxation instead than one of commerce, as it is during the other six yearss of the hebdomad. We reviewed the still turning province [ 603 ] preoccupation with bettering the wellness, safety, ethical motives and general wellbeing of our citizens.

Concededly, plaintiff in errors and all other individuals who wish to work on Sunday will be burdened economically by the State ‘s twenty-four hours of remainder authorization ; and plaintiff in errors point out that their faith requires them to forbear from work on Saturday as good. Our enquiry so is whether, in these fortunes, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to plaintiff in errors.

Certain facets of spiritual exercising can non, in any manner, be restricted or burdened by either federal or province statute law. Compulsion by jurisprudence of the credence of any credo or the pattern of any signifier of worship is purely out. The freedom to keep spiritual beliefs and sentiments is absolute. Therefore, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, this Court held that province action obliging school kids to toast the flag, on hurting of ejection from public school, was contrary to the First and Fourteenth Amendments when applied to those pupils whose spiritual beliefs forbade toasting a flag. But this is non the instance at saloon ; the legislative act before us does non do condemnable the retention of any spiritual belief or sentiment, nor does it coerce anyone to encompass any spiritual belief or to state or believe anything in struggle with his spiritual dogmas.

However, the freedom to move, even when the action is in agreement with one ‘s spiritual strong beliefs, is non wholly free from legislative limitations. As pointed out in Reynolds v. United States, at p. 164, legislative power over mere sentiment is out but it may make people ‘s actions when they are found to be in misdemeanor of of import societal responsibilities or revolutionist of good order, even when [ 604 ] the actions are demanded by one ‘s faith. This was articulated by Thomas Jefferson when he said:

“ Believing with you that faith is a affair which lies entirely between adult male and his God, that he owes history to none other for his religion or his worship, that the legislative powers of authorities range actions merely, and non sentiments, I contemplate with autonomous fear that act of the whole American people which declared that their legislative assembly should `make no jurisprudence esteeming an constitution of faith, or forbiding the free exercising thereof, ‘ therefore constructing a wall of separation between church and State. Adhering to this look of the supreme will of the state in behalf of the rights of scruples, I shall see with sincere satisfaction the advancement of those sentiments which tend to reconstruct to adult male all his natural rights, convinced he has no natural right in resistance to his societal responsibilities. ” ( Emphasis added. )

And, in the Barnette instance, the Court was careful to indicate out that “ The freedom asserted by these appellees does non convey them into hit with rights asserted by any other person. It is such struggles which most often require intercession of the State to find where the rights of one terminal and those of another Begin. . . . It is. . . to be noted that the compulsory flag salutation and [ 605 ] pledge requires avowal of a belief and an attitude of head. ” 319 U.S. , at 630, 633. ( Emphasis added. )

Therefore, in Reynolds v. United States, this Court upheld the polygamy strong belief of a member of the Mormon religion despite the fact that an recognized philosophy of his church so imposed upon its male members the responsibility to pattern polygamy. And, in Prince v. Massachusetts, 321 U.S. 158, this Court upheld a legislative act doing it a offense for a miss under 18 old ages of age to sell any newspapers, periodicals or ware in public topographic points despite the fact that a kid of the Jehovah ‘s Witnesss faith believed that it was her spiritual responsibility to execute this work.

It is to be noted that, in the two instances merely mentioned, the spiritual patterns themselves conflicted with the public involvement. In such instances, to do adjustment between the spiritual action and an exercising of province authorization is a peculiarly delicate undertaking, id. , at 165, because declaration in favour of the State consequences in the pick to the person of either abandoning his spiritual rule or confronting condemnable prosecution.

But, once more, this is non the instance before us because the legislative act at saloon does non do improper any spiritual patterns of plaintiff in errors ; the Sunday jurisprudence merely regulates a secular activity and, as applied to plaintiff in errors, operates so as to do the pattern of their spiritual beliefs more expensive. Furthermore, the jurisprudence ‘s consequence does non trouble all members of the Orthodox Jewish religion but merely those who believe it necessary to work on Sunday. And even these are non faced with every bit serious a pick as abandoning their spiritual patterns or subjecting themselves to condemnable prosecution. Fully acknowledging that the options [ 606 ] unfastened to plaintiff in errors and others likewise situated – retaining their present businesss and incurring economic disadvantage or prosecuting in some other commercial activity which does non name for either Saturday or Sunday labour – may good ensue in some fiscal forfeit in order to detect their spiritual beliefs, still the option is entirely different than when the statute law attempts to do a spiritual pattern itself improper.

To strike down, without the most critical examination, statute law which imposes merely an indirect load on the exercising of faith, i.e. , statute law which does non do improper the spiritual pattern itself, would radically curtail the operating latitude of the legislative assembly. Statutes which revenue enhancement income and restrict the sum which may be deducted for spiritual parts impose an indirect economic load on the observation of the faith of the citizen whose faith requires him to donate a greater sum to his church ; legislative acts which require the tribunals to be closed on Saturday and Sunday enforce a similar indirect load on the observation of the faith of the test attorney whose faith requires him to rest on a weekday. The list of statute law of this nature is about illimitable.

Acerate leaf to state, when come ining the country of spiritual freedom, we must be to the full aware of the peculiar protection that the Constitution has accorded it. Abhorrence of spiritual persecution and intolerance is a basic portion of our heritage. But we are a widely distributed state made up of people of about every imaginable spiritual penchant. These denominations figure about three hundred. Consequently, it can non be expected, much less needed, that legislators enact no jurisprudence modulating behavior that may in some manner consequence in an economic disadvantage to some spiritual religious orders and non to others because of the particular patterns of the assorted faiths. We do non believe that such an consequence is an absolute trial [ 607 ] for finding whether the statute law violates the freedom of faith protected by the First Amendment.

Of class, to keep impregnable all statute law modulating behavior which imposes entirely an indirect load on the observation of faith would be a gross simplism. If the intent or consequence of a jurisprudence is to hinder the observation of one or all faiths or is to know apart invidiously between faiths, that jurisprudence is constitutionally invalid even though the load may be characterized as being merely indirect. But if the State regulates behavior by ordaining a general jurisprudence within its power, the intent and consequence of which is to progress the State ‘s secular ends, the legislative act is valid despite its indirect load on spiritual observation unless the State may carry through its intent by agencies which do non enforce such a load.

As we pointed out in McGowan v. Maryland, at pp. 444-445, we can non happen a State without power to supply a hebdomadal reprieve from all labour and, at the same clip, to put one twenty-four hours of the hebdomad apart from the others as a twenty-four hours of remainder, repose, diversion and tranquility – a twenty-four hours when the feverish pacing of mundane being ceases and a more pleasant ambiance is created, a twenty-four hours which all members of the household and community have the chance to pass and bask together, a twenty-four hours on which people may see friends and relations who are non available during working yearss, a twenty-four hours when the hebdomadal labourer may outdo regenerate himself. This is peculiarly true in this twenty-four hours and age of increasing province concern with public public assistance statute law.

[ 608 ] Besides, in McGowan, we examined several suggested alternate agencies by which it was argued that the State might carry through its secular ends without even remotely or by the way impacting spiritual freedom. Ante, at pp. 450-452. We found there that a State might good happen that those options would non carry through conveying about a general twenty-four hours of remainder. We need non analyze them once more here.

However, plaintiff in errors progress yet another agency at the State ‘s disposal which they would happen clean. They contend that the State should cut an exclusion from the Sunday labour prohibition for those people who, because of spiritual strong belief, observe a twenty-four hours of remainder other than Sunday. By such ordinance, plaintiff in errors contend, the economic disadvantages imposed by the present system would be removed and the State ‘s involvement in holding all people rest one twenty-four hours would be satisfied.

A figure of States provide such an freedom, and this may good be the wiser solution to the job. But our concern is non with the wisdom of statute law but with its constitutional restriction. Therefore, ground and experience Teach that to allow the freedom might good sabotage the State ‘s end of supplying a twenty-four hours that, as best possible, eliminates the ambiance of commercial noise and activity. Although non dispositive of the issue, enforcement jobs would be more hard since there would be two or more yearss to constabularies instead than one and it would be more hard to detect whether misdemeanors were happening.

Additional jobs might besides be presented by a ordinance of this kind. To let merely people who rest on a twenty-four hours other than Sunday to maintain their concerns open on that twenty-four hours might good supply these people with an economic advantage over their rivals who must [ 609 ] remain closed on that twenty-four hours ; this might do the Sunday-observers to kick that their faiths are being discriminated against. With this competitory advantage bing, there could good be the enticement for some, in order to maintain their concerns open on Sunday, to asseverate that they have spiritual strong beliefs which compel them to shut their concerns on what had once been their least profitable twenty-four hours. This might do necessary a state-conducted enquiry into the earnestness of the person ‘s spiritual beliefs, a pattern which a State might believe would itself run afoul of the spirit of constitutionally protected spiritual warrants. Finally, in order to maintain the break of the twenty-four hours at a lower limit, exempted employers would likely hold to engage employees who themselves qualified for the freedom because of their ain spiritual beliefs, a pattern which a State might experience to be opposed to its general policy forbiding spiritual favoritism in engaging. For all of these grounds, we can non state that the Pennsylvania legislative act before us is invalid, either on its face or as applied.

[ 610 ] MR. JUSTICE BRENNAN, agring and dissenting.

I agree with THE CHIEF JUSTICE that there is no virtue in plaintiff in errors ‘ constitution and equal-protection claims. I dissent, nevertheless, as to the claim that Pennsylvania has prohibited the free exercising of plaintiff in errors ‘ faith. . . .

The Court has demonstrated the public demand for a hebdomadal cessation from worldly labour, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to repair Sunday as the clip for that reprieve. I would near this instance otherwise, from the point of position of the persons whose autonomy is – concededly – curtailed by these passages. For the values of the First Amendment, as embodied in the Fourteenth, look chiefly towards the saving of personal autonomy, instead than towards the fulfilment of corporate ends.

The plaintiff in errors are little retail merchandisers, faithful practicians of the Orthodox Jewish religion. They allege – and the allegation must be taken as true, since the instance comes to us on a gesture to disregard the ailment – that “ . . . one who does non detect the Sabbath [ by forbearing from labour ] . . . can non be an Orthodox Jew. ” [ 611 ] In plaintiff in errors ‘ concern country Friday dark and Saturday are busy times ; yet plaintiff in errors, true to their religion, near during the Judaic Sabbath, and do up some, but non all, of the concern therefore lost by opening on Sunday. “ Each of the complainants, ” the ailment continues, “ does a significant sum of concern on Sundays, and the ability of the complainants to gain a support will be greatly impaired by shuting their concern constitution on Sundays. ” Consequences even more drastic are alleged: “ Plaintiff, Abraham Braunfeld, will be unable to go on in his concern if he may non remain unfastened on Sunday and he will thereby lose his capital investing. ” In other words, the issue in this instance – and we do non understand either appellees or the Court to postulate otherwise – is whether a State may set an person to a pick between his concern and his faith. The Court today holds that it may. But I dissent, believing that such a jurisprudence prohibits the free exercising of faith. . . .

[ 613 ]

True, these Torahs do non oblige open avowal of a abhorrent belief, as in Barnette, nor do they forbid straight-out any of plaintiff in errors ‘ spiritual patterns, as did the federal jurisprudence upheld in Reynolds v. United States, 98 U.S. 145 ( 1878 ) , cited by the Court. That is, the Torahs do non state that plaintiff in errors must work on Saturday. But their consequence is that plaintiff in errors may non simultaneously pattern their faith and their trade, without being hampered by a significant competitory disadvantage. Their consequence is that no 1 may at one and the same clip be an Orthodox Jew and vie efficaciously with his Sunday-observing fellow shopkeepers. This geta upon the exercising of faith, this state-imposed load on Orthodox Judaism, has precisely the same economic consequence as a revenue enhancement levied upon the sale of spiritual literature. And yet, such a revenue enhancement, when applied in the signifier of an excise or licence fee, was held invalid in Follett v. Town of McCormick. All this the Court, as I read its sentiment, concedes.

What, so, is the obliging province involvement which impels the Commonwealth of Pennsylvania to hinder [ 614 ] plaintiff in errors ‘ freedom of worship? What preponderating demand is so weighty in the constitutional graduated table that it justifies this significant, though indirect, restriction of plaintiff in errors ‘ freedom? It is non the desire to stomp out a pattern profoundly abhorred by society, such as polygamy, as in Reynolds, for the usage of resting one twenty-four hours a hebdomad is universally honored, as the Court has richly shown. Nor is it the State ‘s traditional protection of kids, as in Prince v. Massachusetts, 321 U.S. 158 ( 1944 ) , for plaintiff in errors are concluding and to the full independent grownups. It is non even the involvement in seeing that everyone rests one twenty-four hours a hebdomad, for plaintiff in errors ‘ faith requires that they take such a remainder. It is the mere convenience of holding everyone remainder on the same twenty-four hours. It is to support this involvement that the Court holds that a State need non follow the alternate path of allowing an freedom for those who in good religion observe a twenty-four hours of remainder other than Sunday.

It is true, I suppose, that the granting of such an freedom would do Sundays a small noisier, and the undertaking of constabulary and prosecuting officer a little more hard. It is besides true that a majority-21-of the 34 States which have general Sunday ordinances have freedoms of this sort. We are non told that those States are significantly noisier, or that their constabularies are significantly more burdened, than [ 615 ] Pennsylvania ‘s. Even England, non under the irresistible impulse of a written fundamental law, but merely influenced by considerations of equity, has such an freedom for some activities. The Court conjures up several troubles with such a system which seem to me more notional than existent. Non-Sunday perceivers might acquire an unjust advantage, it is said. A similar contention against the bill of exchange freedom for painstaking dissenters ( another illustration of the freedom technique ) was rejected with the observation that “ its unsoundness is excessively evident to necessitate ” treatment. Selective Draft Law Cases, 245 U.S. 366, 390 ( 1918 ) . However widespread the ailment, it is lawfully groundless, and the State ‘s trust upon it can non defy a First Amendment claim. We are told that an official enquiry into the good religion with which spiritual beliefs are held might be itself unconstitutional. But this Court indicated otherwise in United States v. Ballard, 322 U.S. 78 ( 1944 ) . Such an enquiry is no more an violation of spiritual freedom than the demand imposed by the Court itself in McGowan v. Maryland, p. 420, decided this twenty-four hours, that a complainant show that his good-faith spiritual beliefs are hampered before he acquires standing to assail a legislative act under the Free-Exercise Clause of the First Amendment. Finally, I find the Court ‘s reference of a job under province antidiscrimination statutes about chimeral. Most such legislative acts provide that hiring may be made on a spiritual footing if faith is a bona fide occupational making. It happens, furthermore, that Pennsylvania ‘s legislative act has such a proviso.

In all right, the Court, in my position, has exalted administrative convenience to a constitutional degree high plenty to [ 616 ] justify doing one faith economically disadvantageous. The Court would warrant this consequence on the land that the consequence on faith, though significant, is indirect. The Court forgets, I think, a warning expressed during the congressional treatment of the First Amendment itself: “ . . . the rights of scruples are, in their nature, of curious daintiness, and will little bear the gentlest touch of governmental manus. . . . ”