The Establishment Clause and Sunday Laws

Many Christian nationalists today claim that the 1st amendment which prohibits Congress from making laws respecting an establishment of religion, or prohibiting the free exercise thereof is simply to protect the Church from the State restricting their liberties. It is true that it is meant to protect the Church from the State, but the founding fathers likewise meant to protect the State from the Church. They did not want any religion to be allowed to come in and use the State to enforce their sectarian dogmas or give them special treatment. If a religious organization did influence the State to make laws like this, then the State would be guilty of making laws respecting religion, violating the 1st amendment.

Further evidence of the desire to keep the Church and State separate is the testimony of the founding fathers themselves:

“I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another…”— Thomas Jefferson to Elbridge Gerry, January 26, 1799[1]

“In every country, in every age, the priest has always been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection of his own.” Thomas Jefferson to Horatio G. Spafford, March 17, 1814[2]

In the Congress debate concerning the establishment of religion clause (1789) we can see what future president James Madison, the one who drafted this clause, intended the purpose of this amendment to be:

“Mr. Madison said, he apprehended the meanings of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience…”[3]

The record goes on to show that a number of State Conventions had worried that the Constitutional clause which gave Congress power to make laws to uphold the Constitution gave them powers which “enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he [Madison] presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.”[4] Our founding fathers did not want America to become like Rome or England with a nationally favored Church, where a certain sect enforced their religious dogmas through the State. Madison would later state in even more explicit words his views on the complete separation of Church and State:

“… there remains in others, a strong bias towards the old error, that without some sort of alliance or coalition between Government & Religion, neither can be duly supported. Such indeed is the tendency to such a Coalition, and such its corrupting influence on both the parties, that the danger can not be too carefully guarded against… Every new & successful example therefore of a perfect separation between ecclesiastical & Civil matters is of importance. And I have no doubt that every new example will succeed, as every past one has done, in shewing that Religion & Govt. will both exist in greater purity, the less they are mixed together… Religion flourishes in greater purity, without than with the aid of Government.” James Madison, letter to Edward Livingston, July 10, 1822[5]

Thus it is evident that the 1st amendment was made to prevent any religious laws being passed that (1) make the adherents of a religion or sect feel favored and/or non-adherents feel disfavored [the establishment clause—no laws respecting an establishment of religion], or (2) require you to do something contrary to your religious convictions or prohibit you from following your religious convictions [the free exercise clause—no laws prohibiting free exercise of religion]. Regardless of whether the laws were created by the State to control the Church, or whether the Church came up with laws to control anyone through the State, all this is prohibited according to the Constitution.

To be a bit more explicit on what violates the establishment clause, chief justice Warren Burger developed what is known as “The Lemon Test” in 1971. According to this test, a law with religious sentiments is considered unconstitutional if it would “advance or inhibit religion” or “create an excessive governmental entanglement with religion.” Likewise, the proposed law must have “a clear secular purpose.”[6] 

With all of this in mind, it does not mean that one’s religious and moral convictions should be divorced from their decision making. Of course, if you believe it is right to protect the environment, then it is not wrong for you to seek laws encouraging this. Laws protecting the environment do not favor or impede any specific religion or denomination, nor do they require anyone to do anything contrary to their religious convictions—no religion believes it is a sin to allow people to plant trees. Thus this law would be secular in nature.

However, would it be right to create a Sabbath law which forces everyone to participate in Sunday services? Of course not, since that would favor Sunday-keeping denominations and force Muslims, Jews, and Adventists to worship in a system contrary to their religious convictions. Well, what if the law only prohibited anyone from working on Sunday? This not only favors Sunday-keeping denominations, but it likewise causes an unnecessary financial strain on Sabbath-keepers, thus inhibiting their religious observance. Sabbath-keeping business owners would have to either suffer economic loss or violate the convictions of their conscience.[7] Thus a Sunday law in this scenario violates the establishment clause. Whether the laws put forward are Friday, Saturday, or Sunday laws, they would all be unconstitutional.

However, interpretation of the establishment clause is typically based on the majority views of the Supreme Court instead of any strict guidelines. For instance, in 1984 (Lynch v. Donnelly) the Court ruled that it was fine for the city to display a nativity scene on public property (a district shopping mall) since it “engenders a friendly community spirit of good will in keeping with the season.” In other words, they saw that this nativity served a secular purpose. But in 1989 (County of Allegheny v. American Civil Liberties Union) the Court ruled that it was unconstitutional to place a nativity scene on public property (County Courthouse) because it was “indisputably religious—indeed sectarian.”[8] Really it all comes down to the views of Supreme Court Justices—6ish[9] of which are currently Catholic.

Interestingly enough, “For the first 180 years of the Supreme Court, Protestant justices were overwhelmingly dominant, Catholics were few—the first was appointed in 1836…”[10] Why was this the case? Simply because the majority of Americans understood that the Roman Church was both a Church and a State, thus the Catholics were loyal to a foreign power—a foreign power which explicitly claimed to be antagonistic to religious and civil liberty. This was plainly stated by a number of Popes, such as Gregory XVI (1765-1841), who described the idea that “liberty of conscience must be maintained for everyone” as an “absurd and erroneous proposition,” comparing it (along with freedom of speech) to the “bottomless pit” opened by Satan in Revelation.[11] In the same encyclical Gregory went on to denounce the freedom of the press (sec. 15) and the separation of Church and State (sec. 20). These sentiments were restated by Gregory’s successor, Pius XI, in his encyclical Quanta Cura, as he condemned the idea that “liberty of conscience and worship is each man’s personal right…”[12]

Unfortunately, it seems that cracks are forming in the wall separating Church and State, much to the satisfaction of the Roman Church. Indeed, many religious organizations today are advocating Sunday laws. As we have seen, a Sunday law would violate the Establishment Clause of the 1st Amendment, for they are religious in nature, as Abram Herbert Lewis pointed out in A Critical History of Sunday Legislation from 321 to 1888 A.D.:

“… Some now claim that Sunday legislation is not based on religious grounds. This claim is contradicted by the facts of all the centuries. Every Sunday law sprung from a religious sentiment… Every prohibition which appears in Sunday legislation is based upon the idea that it is wrong to do on Sunday the things prohibited… To say that the present Sunday laws do not deal with the day as a religious institution, is to deny every fact in the history of such legislation. The claim is a shallow subterfuge.”[13]

Despite the fact that every Sunday law from Constantine to the colonial period were religious in nature, many Christian Nationalists are seeking to re-establish Sunday laws. These people want to establish these laws for religious reasons, but to get around the Establishment Clause some are promoting Sunday laws for a secular purpose. Consider what Stephen Wolfe, author of “The Case for Christian Nationalism,” said concerning the plans for upcoming Sunday legislation:

“I mean even like the Supreme Court in the 19th century at least affirmed that Sabbath laws are okay, and I understand it’s still actually permissible today because they see it as a, you know, a day of rest—it’s not religious and in itself it’s actually a secular sort of thing. So I think, you know, if that’s what the court wants to say fine—I’m still going to say it’s religious and so… I think [we should] have Sabbath laws for that purpose—for a religious end… As I understand it though, it [a Sunday law] is deemed constitutional as a secular purpose. So… if a county or town wants to then enact these [Sunday] laws, they would, as I understand it, they’d have to frame [it] in terms of kind of secular purpose. And if they want to do that then, okay fine, you still achieve the same end. And there is a secular purpose to it so you’re not exactly lying, but it’s the better purpose, the higher purpose of it will be precisely the, you know church attendance—worship God.”[14]

The Sunday law movement is currently making its way in the shadows of environmental care and Project 2025, but one day religious laws will resurface, just as they did in every major world power. The Babylonian king Nebuchadnezzar instituted religious laws, commanding everyone to partake in a false system of worship (Daniel 3); Darius the Mede likewise made decrees forbidding religious practices (Dan. 6); the Persian Xerxes was likewise convinced to create a law which sought to force people to act contrary to their religious convictions; the Greek Empire saw numerous tyrants enact spiritual decrees on pang of death, such as Antiochus Epiphanes; the Jews sought to enforce their man-made religious laws through the Roman State, and thus they crucified Jesus; and the Dark Ages are full of innumerable instances of religious laws and subsequent persecution. But in each instance the outcome was the same for those behind the laws.

“Is this not a recurring theme we have seen in every instance where Satan ushers in his Kingdom of force and violence? Each apostate religious power in Satan’s Kingdoms which tried to compel the conscience of God’s people through religious laws and force, suffered the death they sought to impose on God’s people. The Babylonians who threw Daniel’s friends in the fiery furnace were consumed by the fire they kindled, the Persians who threw Daniel in the lion’s den were thrown in it themselves, Haman was hung on the gallows he had built for Mordecai, Antiochus tried cutting the Hebrews off from God and was subsequently cut off from God, the Jews that crucified Christ via Rome were subsequently crucified by the same power. In all of these scenarios, the sins of the wicked boomeranged back on their own heads. The case is the same with the Papacy—they sought to use the French State to kill their enemies and were therefore killed by the French State [legally in 1798]!”[15]

[1] Thomas Jefferson, Thomas Jefferson to Elbridge Gerry, 26 January 1799, Letter, From Founders Online, National Archives, http://tinyurl.com/mt6m3zrm.

[2] James Madison, James Madison to Horatio G. Spafford, 10 July 1822, Letter, From Founders Online, National Archives, http://tinyurl.com/kpjyjphp.

[3] James Madison, Compiled by Joseph Gales Sr., The Debates and Proceedings in the Congress of the United States (Washington : Gales and Seaton, 1789), vol. 1, 758, http://tinyurl.com/3kca8d6c.

[4] Ibid.

[5] James Madison, James Madison to Edward Livingston, 10 July 1822, Letter, From Founders Online, National Archives, http://tinyurl.com/4n6f92um.

[6] Richard L. Pacelle, Jr., “Lemon Test” (2009), Center of Free Speech, http://tinyurl.com/mrxe98rs.

[7] Some may argue that all that is needed to make this Sunday law constitutional is an exception clause for those who observe the seventh-day Sabbath. However, in this case such a clause would show a mere toleration of belief instead of a recognition of human rights.

[8] Marci A. Hamilton and Michael McConnell, “The Establishment Clause: Common Interpretation,” National Constitution Center, http://tinyurl.com/3vcdr3na.

[9] Neil Gorsuch belongs to the Episcopalian Church which call itself “Protestant, yet Catholic.” “What makes us Anglican?” (2004), The Episcopal Church, http://tinyurl.com/ahz6ucd8.

[10] Ephrat Livni, “The historic shift in the US Supreme Court’s religious makeup (plus or minus a Gorsuch)” (2017), http://tinyurl.com/yc448383.

[11] Gregory XVI, Mirari Vos, sec. 14, encyclical letter, Vatican website, August 15, 1832, http://tinyurl.com/878k2rvn.

[12] Pius XI, Quanta Cura, sec. 3, encyclical letter, Vatican website, December 8, 1864, http://tinyurl.com/3fuanvee.

[13] Abram Herbert Lewis, A Critical History of Sunday Legislation from 321 to 1888 A.D. (New York: D. Appleton, 1888), p. viii-ix, https://tinyurl.com/359wnprx.

Even the first Sunday law in 321 AD was enacted by Constantine so that “he might gently bring all men to piety.” Eusebius, Life of Constantine, bk. 4, ch. 18, p. 159.

[14] BiblicalHope, “Excerpts from the Waldenses” YouTube video, 55:30-57:27, October 7, 2023, https://tinyurl.com/y98kus37.

[15] Sean Sutton, Forbidden Fruit, not yet published.