Time magazine reported that 12% of Black Friday shoppers will be shopping drunk. I’m not exactly sure how Time came up with that statistic. But the image of drunk bargain shoppers charging through Bed Bath & Beyond snatching up massage chairs and single serving coffee machines just makes me smile.
In less amusing, but perhaps more important news, Time also reported that 70% of Americans believe that stores should be closed on Thanksgiving to allow workers to spend time with their families.
Getting 70% of Americans to agree on just about anything these days is pretty impressive. Nevertheless, despite our consensus, many large retailers will remain open on Thursday. Wal-Mart, Target, Best Buy, Macy’s, Sears, and Toys R Us will all welcome Thanksgiving shoppers in an attempt to cash in early on the frenzied shopping season.
In an era when holiday commerce is king, can we preserve the simple sanctity of Thanksgiving?
“Blue Law” Thursday
In 3 states, decades old “blue laws” ban certain stores from opening on Thanksgiving. Rhode Island, Maine, and Massachusetts prohibit large supermarkets, big box stores, and department stores from opening on Thanksgiving.
In Maine, a violation of the Thanksgiving closing law is punishable by up to 6 months in prison and a fine of $1,000. In 2005, the Massachusetts Attorney General fired off a warning letter to the Whole Foods grocery chain when he learned that it was planning to open on Thanksgiving.
These modern day “blue laws” are not without controversy. Business groups argue that such laws are unnecessarily restrictive in this era of 24-hour online shopping.
But “blue laws” have been a part of our history since the colonial period. In 1781, Rev. Samuel Peters published “A General History of Connecticut” in which he used the term “blue laws” to describe a set of laws that the Puritans enacted to control morality. Historians have speculated that the description of such laws as “blue” came from an association with the term “bluenose,” which was a slang term for a prudish, rigidly moral person.
As Puritanism declined, many state and local governments began passing “blue laws” that forbid merchants and laborers from working on Sundays. As the Temperance Movement gained steam after the Civil War, governments used “blue laws” to forbid the sale of alcohol and tobacco on Sundays.
During the early 20th century many “blue laws” were amended to provide exemptions. Such exemptions produced a hodge podge of arbitrary rules whereby, as an example, a hardware store could remain open on Sundays and sell nails but not hammers. With the post World War II expansion of the consumer culture, many Sunday closing laws were either repealed all together or simply unenforced.
The Constitutional Fight Over “Blue Laws”
Between 1859 and 1900 the U.S. Supreme Court heard 8 cases involving “blue laws.” Finally, in 1961, the constitutionality of “blue laws” was definitely resolved in the case of McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
In McGowan, the Supreme Court wrestled with Maryland’s “blue laws” that forbid the sale of certain products on Sundays. McGowan and several of her co-workers at a department store were fined under these laws for selling forbidden items on Sunday. The items sold included a notebook, a can of floor wax, a stapler and staples, and a toy submarine. Following their conviction under Maryland’s “blue law,” the co-workers appealed to the U.S. Supreme Court arguing that that the law violated the Equal Protection and Due Process clauses of the 14th Amendment and the Establishment Clause of the 1st Amendment.
The Supreme Court rejected McGowan’s argument and upheld Maryland’s “blue laws.” In reaching its conclusion, the Court acknowledged that while such laws had originally been enacted for religious purposes, they had evolved to serve more secular purposes and thus did not violate the Establishment Clause. The Court pointed to secular arguments for “blue laws” such as the idea that it was good for government to encourage people to take the day off from work and relax.
Since McGowan, the U.S. Supreme Court has not revisited the issue of “blue laws.” As long as such laws can be supported by a secular purpose, separate and apart from any religious purpose, “blue laws” will likely be upheld as constitutional. However, in the 50 plus years since McGowan most states have either repealed such laws or stopped enforcing them.
Harry’s Hardware And Louisiana’s “Blue Laws”
Louisiana once had its own set of “blue laws” that mandated that certain businesses remain closed on Sundays. In 1982, a little locally owned hardware store in New Orleans challenged the constitutionality of Louisiana’s “blue laws” and ended up litigating the issue all the way to the Louisiana Supreme Court. Harry’s Hardware, Inc. v. Parsons, 410 So.2d 735 (La. 1982).
Harry’s Hardware originally filed suit in Orleans Parish to stop the enforcement of Louisiana’s Sunday closing law. The little hardware store argued that Louisiana’s “blue law” was arbitrary in so much as it required the hardware store to close on Sunday while allowing other businesses such as drug stores to remain open.
Following a trial on the merits, the district court dismissed Harry’s Hardware’s suit and ruled that Louisiana’s “blue laws” were constitutional. The hardware store appealed and the Louisiana Fourth Circuit Court of Appeal struck down the law as unconstitutional.
Upon arriving at the Louisiana Supreme Court for final adjudication, the law was finally declared constitutional. In reaching its decision, the Court determined that the exemptions created to Louisiana’s Sunday closing law for drug stores and other related businesses were “those that the legislature deemed necessary to safely provide for the welfare of the public while mandating a forced closing of most businesses.” As a result, Louisiana’s “blue law” and its myriad of exemptions was deemed constitutional.
Gobble Gobble On Thursday – Shop On Friday
Our tradition of celebrating a post-harvest holiday on Thursday dates back to the 17th Century Plymouth and Massachusetts Bay colonies.
In 1941, only two weeks before the U.S. would enter World War II, President Franklin D. Roosevelt signed into law a bill that established the fourth Thursday in November as Thanksgiving Day.
This year, as we’re bombarded by retailers luring us into their stores on Thanksgiving Day, let’s take a page from our New England neighbors to the north. We don’t have “blue laws” down here to keep big box retailers closed on Thursday. But let’s just stay home anyway. Gobble gobble on Thursday. Shop on Friday.
But remember on Friday – watch out for the drunk folks trying out the massage chairs at Bed Bath & Beyond.