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State v. Fass

Decided: November 6, 1961.


For affirmance -- Justices Francis, Proctor, Hall and Haneman. For reversal -- Chief Justice Weintraub, and Justices Jacobs and Schettino. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (dissenting). Jacobs, J. (dissenting). Schettino, J. (dissenting).


[36 NJ Page 103] Defendant Dave Fass operates a store in West New York, New Jersey, for the retail sale of floor coverings. He was charged in the Municipal Court with making a sale of merchandise there on Sunday in violation of L. 1959, Chapter 119, §§ 1 and 3, N.J.S. 2 A:171-5.8

and 5.10. He admitted the sale but defended on the ground that the statute is invalid because it interferes with the free exercise of his religion in violation of the First Amendment of the United States Constitution (which is applicable to the states by virtue of the Fourteenth Amendment of that Constitution), and of Article I, paragraphs 4 and 5, of the New Jersey Constitution. In addition, he claimed to be immune from prosecution under N.J.S. 2 A:171-4 as a Sabbatarian. He was convicted in the Municipal Court and the judgment was affirmed on a trial de novo in the County Court. His subsequent appeal was certified by this court before argument in the Superior Court, Appellate Division. After the matter was presented to us the United States Supreme Court on June 19, 1961 decided a series of cases involving attacks upon the constitutionality of the Sunday closing laws of Maryland, Massachusetts and Pennsylvania. All of the various claims of invalidity were rejected, including the contentions that such statutes violated the equal protection clause of the Fourteenth Amendment and the religious freedom guaranty of the First Amendment of the Federal Constitution. See McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1153, 1218, 6 L. Ed. 2 d 393; Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2 d 536; Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2 d 551; Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2 d 563. In the light of those determinations, we called for additional briefs and reargument.

Section 1 of Chapter 119, L. 1959, provides:

"On the first day of the week, commonly known and designated as Sunday, it shall be unlawful for any person whether it be at retail, wholesale or by auction, to sell, attempt to sell or offer to sell or to engage in the business of selling, as hereinafter defined, clothing or wearing apparel, building and lumber supply materials, furniture, home or business or office furnishings, household, business or office appliances, except as works of necessity or charity or as isolated transactions not in the usual course of the business of the participants." (Emphasis added)

Section 3 says that "sell" means

"* * * to enter into an agreement whereby the seller transfers ownership or property in the goods or an interest in the goods to the purchaser for a consideration, * * *."

"Offer to sell" means

"* * * the acceptance of bids or proposals for the purchase of goods at a future date or the attempt to induce a sale as hereinabove defined, or the attempt to induce an immediate transfer of any such merchandise, but not to include advertising or display of any such merchandise which merchandise is not available for purchase on Sunday." (Emphasis added)

"Engage in selling" means

"* * * the attempt to sell or to induce an immediate or future transfer of any such merchandise by describing, explaining, extolling or identifying any such merchandise while the seller is in personal contact with the potential purchaser."

The constitutionality of the statute was sustained by a majority of this court in Two Guys from Harrison v. Furman, 32 N.J. 199 (1960), against charges that it imposed discrimination upon and denied equal protection of the law to persons who were engaged in the business of selling articles in the five forbidden categories. Also rejected was the contention that the legislation transgressed the prohibition of the Federal and State Constitutions against the enactment of laws "respecting an establishment of religion" or "of one religious sect in preference to another." First Amendment, United States Constitution; Article I, par. 4, New Jersey Constitution. That decision must be regarded as having established the present law of this State. Reserved by the opinion, however, was the question whether the ban on Sunday sales in the listed classes of commodities impinged "upon the freedom of those who observe religiously the seventh day of the week." The issue was not presented and no view was expressed on it. 32 N.J., at pp. 216, 217. This case brings it to us for the first time.

Fass is a votary of the Orthodox Jewish faith. The tenets of his religion require him to keep, and he does keep, the seventh day of the week as his Sabbath. On that day he abstains from his usual business or occupation and devotes himself exclusively to religious worship. His Sabbath begins at sundown on Friday (at which time he closes his store) and ends at sunset on Saturday. Thus, his store is closed two days each week: on Saturday, because of the spiritual proscriptions of his religious orthodoxy, and on Sunday, through compulsion of secular law, L. 1959, Chapter 119, while his business competitors of other faiths, or of no faith at all, are prohibited from engaging in traffic in the five classes of goods only on one day of the week, i.e., Sunday. The resulting additional economic loss imposed on him by the statute makes the practice of his religion more burdensome and therefore, he claims, constitutes an unconstitutional hindrance to its free exercise.

The precise question was considered in Braunfeld v. Brown and McGowan v. State of Maryland, supra, and disposed of adversely to the defendant by a majority of the members of the United States Supreme Court. In Braunfeld, Chief Justice Warren declared that the Pennsylvania Sunday closing Law (18 P.S. § 4699.10) was simply a regulation of secular and not of religious activity, designed by the legislative branch of the government to secure in each week a common day of rest, relaxation and recreation for all persons. 366 U.S., at p. 604, 81 S. Ct., at p. 1147, 6 L. Ed. 2 d, at p. 567. In answer to the argument that the basic purpose would be served by selection of some day other than Sunday or by permitting each person to decide upon his own day of abstinence from work, both the Chief Justice, and Justice Frankfurter in his exhaustive concurring opinion, said a state might reasonably conclude that the suggested alternatives would not provide for the desired general cessation of activity or the sought for atmosphere of rest and tranquility; that they would provide only periodic physical rest, not the atmosphere of entire community repose which Sunday has

traditionally brought. McGowan v. State of Maryland, supra, 366 U.S., at pp. 449, 505, 506, 81 S. Ct., at pp. 1117, 1178, 1179, 6 L. Ed. 2 d, at pp. 413, 414, 444, 445; see also Two Guys from Harrison v. Furman, supra, 32 N.J., at pp. 215, 216.

In McGowan and Braunfeld it was further contended that in view of the indirect economic burden cast on Sabbatarians, conformity with the guaranty of freedom of religion as to them could be achieved only by legislative grant of an exemption from the restrictions of Sunday closing statutes. Here again, the court ruled adversely, holding that such a qualification was a matter of legislative judgment and not necessary to constitutional regularity. In Braunfeld v. Brown Chief Justice Warren said:

"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." 366 U.S., at p. 608, 81 S. Ct., at p. 1148, 6 L. Ed. 2 d, at p. 569.

Justice Frankfurter reached the same conclusion on this problem. He said:

"In urging that an exception in favor of those who observe some other day as sacred would not defeat the ends of Sunday legislation, and therefore that failure to provide such an exception is an unnecessary -- hence an unconstitutional -- burden on Sabbatarians, the Gallagher appellees and Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday. Actually, in less than half of these twenty-one States does the exemption extend to sales activity as well as to labor. There are

tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police instead of one. If it is assumed that the retail demand for consumer items is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non-Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion. Employers who wished to avail themselves of the exception would have to employ only their co-religionists, and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable. [366 U.S., at p. 514, 81 S. Ct., at p. 1183, 6 L. Ed. 2 d, at pp. 449, 450]

In view of the importance of the community interests which must be weighed in the balance, is the disadvantage wrought by the non-exempting Sunday statutes an impermissible imposition upon the Sabbatarian's religious freedom? Every court which has considered the question during a century and a half has concluded that it is not. This Court so concluded in Friedman v. New York, 341 U.S. 907, 95 L. Ed. 1345, 71 S. Ct. 623. On the basis of the criteria for determining constitutionality, as opposed to what one might desire as a matter of legislative policy, a contrary conclusion cannot be reached." 366 U.S., at p. 522, 81 S. Ct., at p. 1187, 6 L. Ed. 2 d, at pp. 453, 454.

Reference is made to these portions of the Federal cases to demonstrate that a Sunday closing law otherwise valid is not invalidated because it does not contain any exemption for persons whose religious beliefs require them to observe Saturday or some other day of the week as their Sabbath. For example, Moslems choose Friday; Buddhists, a day which is determined by the phases of the moon and may vary from week to week. "Sunday Legislation," 73 Harv. L. Rev. 729, 734, n. 55 (1960). The New Jersey Sunday Closing Act, N.J.S. 2 A:171-4, however, does contain an excepting clause for Sabbatarians, which is claimed to be applicable in the present controversy. Its limited operative effect, however (to be discussed hereafter), makes

relevant the expressed view that no such clause is necessary to satisfy the constitutional requirements for religious freedom.

The effect of the four Federal cases to which we have referred and the concordant majority decision of this court in Two Guys from Harrison v. Furman, supra, is to establish that L. 1959, Chapter 119, does not deprive retail merchants of equal protection of law. The present writer, who dissented in Two Guys, bows to those judgments. My associates of the majority in this case originally held the view that prevailed. The Federal cases demonstrate also that the designation therein of Sunday as the common day of rest and recreation, does not infringe invidiously upon organic safeguards for the free exercise of religious beliefs, and that it does not constitute the act as one "respecting an establishment of religion" or as establishing or tending to establish "one religious sect in preference to another." Selection of one fixed day in seven in aid of community need and desire for respite from ordinary business activity is a matter of legislative policy, judgment and discretion. So long as the choice does not transgress constitutional limitations, the wisdom of the action is solely within the ambit of the legislative branch of the government.

Thus we are brought to consideration of the final facet of Fass' defense. He argues that because of the exception granted to him as a Sabbatarian under 2 A:171-4, the sale of carpeting cannot be considered a violation of L. 1959, Chapter 119.

Section 4, which is said to grant the immunity, first appeared in the general Sunday Closing Act of 1798, Paterson's Laws, p. 329. The language of the section was substantially the same then as it is now. It provides:

"If any person charged with having labored or worked on Sunday shall prove to the satisfaction of the court that he uniformly keeps the seventh day of the week as the Sabbath, habitually abstains on that day from following his usual occupation or business and from all recreation, and devotes the day to the exercise of religious worship,

and if the work or labor for which such person is informed against was done and performed in his dwelling house or workshop, or on his premises, and has not disturbed other persons in the observance of the first day of the week as the Sabbath, then the defendant shall be discharged. This section shall not be construed to allow any such person to openly expose to sale on Sunday any goods, wares, merchandise or other article or thing in the line of his business or occupation." (Emphasis added)

Defendant's right of exoneration, therefore, depends upon the nature of this exception, and, more specifically, whether he "openly" exposed "to sale" goods "in ...

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