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Tract 23e
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"The question is not whether one day out of seven can be imposed by a State as a day of rest. The question is not whether Sunday can by force of custom and habit be retained as a day of rest. The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority.
"The fact that a State, and not the Federal Government, has promulgated these Sunday laws does not change the scope of the power asserted. For the classic view is that the First Amendment should be applied to the States with the same firmness as it is enforced against the Federal Government. See Lovell v. Griffin, 303 U.S. 444, 450; Minersville District v. Gobitis, 310 U.S. 586, 593; Murdock v. Pennsylvania, 319 U.S. 105, 108; Board of Education v. Barnette, 319 U.S. 624, 639; Staub v. City of Baxley, 355 U.S. 313, 321; Talley v. California, 362 U.S. 60. The most explicit statement perhaps was in Board of Education v. Barnette, supra, 639.
"[Here is] a warning uttered during the congressional discussion of the First Amendment itself: ". . . the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand . . .
"I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.
"The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect. The Declaration of Independence stated the now familiar theme: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.'
"And the body of the Constitution as well as the Bill of Rights enshrined those principles.
"But those who fashioned the Constitution decided that if and when God is to be served, His service will not be motivated by coercive measures of government. 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'--such is the command of the First Amendment made applicable to the State by reason of the Due Process Clause of the Fourteenth. This means, as I understand it, that if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily weakens his choosing of his own religion; second, that the State may not require anyone to practice a religion or any religion; and third, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters (Board of Education v. Barnette, supra; McCollum v. Board of Education, 333 U.S. 203), not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics.
"The First Amendment commands government to have no interest in theology or ritual;. . . On matters of this kind government must be neutral . . . Certainly the 'free exercise' clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect . . . The 'establishment' clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.
"This religious influence has extended far, far back of the First and Fourteenth Amendments. Every Sunday School student knows the Fourth Commandment:
'Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: 'But the seventh day is the sabbath of the Lord thy God: In it, thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: "For in six days the Lord made heaven and earth.' --Exodus 20:8-11
"This religious mandate for observance of the Seventh Day became, under Emperor Constantine, a mandate for observance of the First Day . . .
"The history was accurately summarized a century ago by Chief Justice Terry of the Supreme Court of California in Ex parte Newman, 9 Cal. 502, 509:
"The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers . . . '
"That case involved the validity of a Sunday law under a provision of the California Constitution guaranteeing the 'free exercise' of religion. California Constitution, 1849, Art. 1, sect. 4. Justice Burnett stated why he concluded that the Sunday law, there sought on Sunday, infringed California's constitution.
" 'The fact that the Christian voluntarily keeps holy the first day of the week, does not authorize the Legislature to make that observance compulsory. The Legislature can not compel the citizen to do that which the Constitution leaves him free to do or omit, at his election. The act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object, when the Legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the act of the Legislature compels us to do that which we wish to do, or not to do . . .
" 'Under the Constitution of this State, the Legislature can not pass any act, the legitimate effect of which is forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance ,--the act is unconstitutional.'
"The State can of course require one day of rest a week: one day when every shop or factory is closed. Quite a few States make that requirement. Then the 'day of rest' becomes purely and simply a health measure. But the Sunday laws operate differently. They force minorities to obey the majority's religious feelings of what is due and proper for a Christian community; they provide a coercive spur . . . Can there be any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a Moslem law that forbade them from engaging in secular activities on days that violated Moslem scruples?"--William O. Douglas, United States Supreme Court, in McGowan v. Maryland, U.S. Supreme Court, October Term, 1960 (May 29, 1961), 366 U.S., 420, at pp. 561-581.
"Government is an organization for particular purposes. It is not almighty, and we are not to look to it for everything. The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of those interests, lying outside the true and legitimate province of government."--Justice John Welch, in Board of Education of Cincinnati v. Minor et al (1872-1878), 23 Ohio State Reports 253. [John Welch, LL.D. (1805-1891) was a judge on the Supreme Court of Ohio].
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' "--United States Supreme Court, Everson v. Board of Education, 330, U.S. 1, pp. 15-16 (February 10, 1947).
"Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation.' not of a fine line easily overstepped . . . 'The great American principle of eternal separation '--Elihu Root's phrase bears repetition--is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity."--From concurring opinion of Justice Felix Frankfurter in McCollum v. Board of Education, 333 U.S. 203 (March 1948).
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."--First Amendment to the Constitution of the United States of America, in United States Code, 1958 edition, p. xlvi.
"It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride and the intolerance of sects, thus exemplified in our domestic, as well as our foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject.--Joseph Story, Commentaries on the Constitution of the United States, bk. 3 chap. 44, p. 702, sec. 992, 1833 edition. [Joseph Story (1779-1845), was a jurist and U.S. Supreme Court justice for 34 years, a foremost American legal writer, and a United States Congressman.]
"Religion is essentially distinct from civil Government, and exempt from its cognizance; . . a connection between them is injurious to both."--James Madison, Letter to Edward Everett, March 19, 1823, in Letters and Other Writings of James Madison, Vol. 3 , p. 307.
"With only a few technical restrictions, an American can organize a church, teach or preach religion, conduct a religious school, found a religious hospital and publish and distribute literature about his faith without being molested. All these religious freedoms must be extended impartially to all churches or religious schools without discrimination.
"Those freedoms seem common place enough to most Americans; we tend to take them for granted. Yet they represent one of history's greatest cultural achievements. They distinguish the American way of life in matters of religion from that of many other nations which consider themselves democratic."--Paul Blanshard, God and Man in Washington, 1960, p. 58.
"It is a monstrous paradox, that God's children should persecute God's children, and that they that hope to live eternally together with Christ Jesus in the heavens, should not suffer each other to live in this common air together, &c. I am informed it was the speech of an honourable knight of the parliament: 'What! Christ persecute Christ in New England?' "--Roger Williams, The Bloudy Tenent of Persecution, 1848 ed., p. 370.
"When a religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support it, so that its professors are obliged to call for help of the civil power, it is a sign, I apprehend, of its being a bad one."--The Writings of Benjamin Franklin, Letter to Dr. Price, October 9, 1780, Smyth's edition, volume 8, page 154.
"Condemn no man for not thinking as you think: Let every one enjoy the full and free liberty of thinking for himself: Let every man use his own judgment, since every man must give an account of himself to God. Abhor every approach, in any kind or degree, to the spirit of persecution. If you cannot reason or persuade a man into the truth, never attempt to force him into it. If love will not compel him to come in, leave him to God, the Judge of all."--John Wesley, "Advice to the People Called Methodists," in his Works, 1872 ed., Vol. 8, p. 357.
"On the Venerable Day of the Sun let the magistrates and people residing in cities rest, and let all workshops be closed. In the country, however, persons engaged in agriculture may freely and lawfully continue their pursuits; because it often happens that another day is not so suitable for grain-sowing or for vine-planting; lest by neglecting the proper moment for such operations the bounty should be lost; given the 7th day of March [321 A.D.], Crispus and Constantine being consuls each of them for the second time."-- Codex Justinianus, lib. 3, tit. 12, 3; trans. in Philip Schaff, History of the Christian Church, Vol. 3, 5th ed., 1902, p.380, note 1.
"This [Constantine's Sunday Law decree of March, 321] is the 'parent' Sunday law making it a day of rest and release from labor. For from this day to the present there have been decrees about the observance of Sunday which have profoundly influenced European and American society. When the Church became a part of State under the Christian emperors Sunday observance was enforced by civil statutes and later, when the Empire was past, the Church in the hands of the papacy, enforced it by ecclesiastical, and also influenced it by civil enactments."--Walter Woodburn Hyde, Paganism to Christianity in the Roman Empire, University of Pennsylvania Press, p. 261.
"Constantine's decree marked the beginning of a long, though intermittent series of imperial decrees in support of Sunday rest."--Vincent J. Kelly, Forbidden Sunday and Feast-Day Occupations, p.29.
"This legislation by Constantine probably bore no relation to Christianity; it appears, on the contrary, that the emperor, in his capacity of Pontifex Maximus, was only adding the day of the Sun, the worship of which was then firmly established in the Roman Empire, to the other ferial days of the sacred calendar . . . What began, however, as a pagan ordinance, ended as a Christian regulation; and a long series of imperial decrees, during the fourth, fifth, and sixth centuries, enjoined with increasing stringency abstinence from labour on Sunday."--Hutton Webster, Rest Days, pp. 122-123, 270, 1916, The MacMillan Company.
"The emperors after Constantine made Sunday observance more stringent but in no case was their legislation based on the Old Testament . . . At the Third Synod of Aureliani [Orleans] in 538 rural work was forbidden but the restriction against preparing meals and similar work on Sunday was regarded as a superstition. After Justinian's death in 565 various epistolae decretals were passed by the popes about Sunday."--Walter Woodburn Hyde, Paganism to Christianity in the Roman Empire, p. 261.
"Be it enacted . . . that all and every Person and Persons whatsoever, shall on every Lord's Day apply themselves to the Observation of the same, by exercising themselves thereon in the Duties of Piety and true Religion, publickly and privately; (4) and that no . . . Person whatsoever, shall do or exercise any worldly Labour, Business, or Work of their ordinary Callings, upon the Lord's Day, or any Part thereof (Works of Necessity and Charity only excepted;) . . (6) and that no Person or Persons whatsoever, shall publickly cry, shew forth, or expose to Sale, any Wares, Merchandizes, Fruit, Herbs, Goods or Chattels whatsoever."--29 Charles II, chap. 7, in [British] Statutes at Large (1763), Vol. 3, p. 388 [This law of the 29th year of Charles II, valid in England for nearly two centuries, became the model for many American colonial laws, and hence of our State Sunday laws].
| In 1664, Stephen Mumford, a Sabbathkeeper, came to New England. He
founded in 1671 the first Sabbathkeeping church in America--in Rhode
Island. Soon the report reached England that the Rhode Island colony was
no longer keeping Sunday. In reply to this, Roger Williams wrote a letter
on June 22, 1670, in which he both denied this accusation,--and mentioned
that there was no Scripture for "abolishing the seventh day."
"You know yourselves do not keep the seventh day," he remarked.
His was the only colony that at the time had tolerance of Sabbathkeepers.
"The Divine institution of a day of rest from ordinary occupations and of religious worship, transferred by the authority of the Church from the Sabbath, the last day, to Sunday, the first day of the week, has always been revered in this country, has entered into our legislation and customs, and is one of the most patient signs that we are a Christian people. " . . You know that all England itself (after the formality of morning and evening prayer) play away their Sabbath. 2d. You know yourselves do not keep the Sabbath, that is the seventh day, &c. " . . . Thus also all the Romanists confess, saying, viz.: that there is no express scripture, first, for infants' baptism; nor, second, for abolishing the seventh day, and instituting of the eighth day worship, but that it is at the church's pleasure."--Roger Williams, Letter to Major John Mason of Connecticut, June 22, 1670, in Letters of Roger Williams, in Publications of the Narragansett Club, 1st series, vol. 6, 1874 ed., pp. 333, 346-347. |
"The First Sunday Law imposed on an American colony [Virginia, 1610] required church attendance, and prescribed the death penalty for the third offense."--Peter Force, Tracts Relating to the Colonies in North America, vol. 3, no.2, p. 11.
"Whosoever shall prophane the Lord's day, or any part of it, either by sinful servile work, or by unlawful sport, recreation, or otherwise, whether wilfully, or in a careless neglect, shall be duly punished by fine, imprisonment, or corporally according to the nature, and measure of the sin, and offence. But if the Court upon examination, by clear, and satisfying evidence find That the sin was proudly, presumptuously, & with a high hand committed against the known command and authority of the blessed God, such a person therein despising and reproaching the Lord, shall be put to death, That all others may feare and shun such provoking Rebellious courses."--seventeenth century Colonial Sunday Law, quoted in Charles J. Hoadly, Records of the Colony or Jurisdiction of New Haven, From May, 1653, to the Union, Together With the New Haven Code of 1656, p. 605 (1858 edition).
"Every man and woman shall repaire in the morning to the divine service, and Sermons preached upon the Sabbath day, and in the afternoon to divine service, and Catechising, upon paine for the first fault to lose their provision, and allowance for the whole week following, for the second to lose the said allowance, and also to be whipped, and for the third to suffer death."--For the Colony in Virginea Brintannia, Lawes Divine, Morall and Martiall, & c, in Peter Force, Tracts and Other Papers Relating Principally to the Colonies in North America, 1844 edition, Vol. 3, No. 2, p.11.
"Often the Protestants who argue most militantly against government aid to church-sponsored institutions, such as parochial schools, see no contradiction of the principle of separation of church and state in their advocacy of blue laws--Sunday closing laws--which are in the last analysis nothing but the legislation of what such Protestants take to be Christian morality."--Ronal Goetz, "An Eschatological Manifesto," in The Christian Century, 76 (November 2, 1960), 1274.
"In every case [in the New Testament] the obligation [to obey] is left with the enlightened conscience,--and any effort to coerce men by statutory enactment is repudiated by all liberty loving states . . . If they do not [honor God], nothing is gained for Him or for them by legal compulsion.
"On the baseless assumption that the seventh day, set apart and established in the law [of God], has been in some way superseded by the first day, recognized in the gospel, a good deal of hurtful legislation has been enacted on the pretext of sanctifying the Sabbath and honoring God. Men who really do know better are willing to wrest the Scriptures and appeal to popular ignorance in order to gain a point. Such conduct is unworthy of any good cause.
"This error had its origin in the iniquitous union of church and state, and is a relic of that oppressive system. Early Christians never confounded the Sabbath and the Lord's Day. For five hundred years after Christ the distinction between the two, so clearly marked in the Scriptures, was strictly maintained.
"In any form Sunday legislation is either religious or secular. If religious, it violates the principle of separation between church and state. If secular, it tends to secularize the Lord's Day and to obliterate the distinction between the righteous and the wicked by having the same human rule for each. In either case it works mischief, and ought to be expunged from the statute books of every enlightened state."--Joseph Judson Taylor, The Sabbatic Question, pp. 51-52, 67, 1914 edition, Fleming H. Revel Company [Dr. Taylor (1885-1930) was vice-president of the Home Mission Board for the Southern Baptist Convention].
"The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is--concededly--curtailed by these enactments, For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.
"The appellants are small retail merchants, faithful practitioners of the Orthodox Jewish faith. They allege--and the allegation must be taken as true, since the case comes to us on a motion to dismiss the complaint--that ' . . . one who does not observe the Sabbath [by refraining from labor on the Seventh day] . . . cannot be an Orthodox Jew.' . . . The issue in this case--and we do not understand either appellees or the Court to contend otherwise--is whether a State may put an individual to a choice between his business and his religion. The Court today holds that it may. But I dissent, believing that such a law prohibits the free exercise of religion.
"The first question to be resolved, however is somewhat broader than the facts of this case. That question concerns the appropriate standard of constitutional adjudication in cases in which a statute is assertedly in conflict with the First Amendment, whether that limitation applies of its own force, or as absorbed through the less definite words of the Fourteenth Amendment. The Court in such cases is not confined to the narrow inquiry whether the challenged law is rationally related to some legitimate legislative end. Nor is the case decided by a finding that the State's interest is substantial and important, as well as rationally justifiable. This canon of adjudication was clearly stated by Mr. Justice Jackson, speaking for the Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943):
'In weighing arguments of the parties it is important to distinguish between the due process of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment, and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First,--which is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.'
"This exacting standard has been consistently applied by this Court as the test of legislation under all clauses of the First Amendment, not only those specifically dealing with freedom of speech and of the press. For religious freedom--the freedom to believe and to practice different and, it may be, foreign creeds--has classically been one of the highest values of our society. See, e. g., Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Jones v. City of Opelika, 319 U.S. 103 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943); Follett v. Town of McCormick, 321 U.S. 573 (1944); Marsh v. Alabama, 326 U.S. 501, 510 (1946). Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while deploring some incidental phraseology. See Kovacs v. Cooper, 336 U.S. 77, 89, 95-96 (1949) [concurring opinion]; but cf. Ullmann v. United States, 350 U.S. 422 (1956). The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of the City of New Orleans, 3 How. 598, 600 (1845), and foreshadowed by a prescient footnote in United States v, Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), must now be taken to be settled. Or at least so it appeared until today. For in this case the Court seems to say, without so much as a deferential nod towards that high place which we have accorded religious freedom in the past, that any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose.
"Admittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette, nor do they prohibit outright any of appellants' religious practices, as did the federal law upheld in Reynolds v. United States, 98 U.S. 145 (1878), cited by the Court. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade, without being hampered by a substantial competitive disadvantage. Their effect is that no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet, such a tax, when applied in the form of an excise or license fee, was held invalid in Follett v. Town of McCormick, supra. All this the Court, as I read its opinion, concedes.
"What then is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, as in Reynolds, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State's traditional protection of children, as in Prince v. Massachusetts, 321 U.S. 158 (1944), for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rest one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who in good faith observe a day of rest other than Sunday.
"It is true, I suppose, that the granting of such an exemption would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority--21-- of the 34 States which have general Sunday regulations have exemptions of this kind. We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Pennsylvania's. Even England, not under the compulsion of a written constitution, but simply influenced by considerations of fairness, has such an exemption for some activities. The Court conjures up several difficulties with such a system which seem to me more fanciful than real . . . However widespread the complaint, it is legally baseless, and the State's reliance upon it cannot withstand a First Amendment claim.
"In fine, the Court, in my view, has exalted administrative convenience to a constitutional level high enough to justify making one's religion economically disadvantageous. The Court would justify this result on the ground that the effect on religion, though substantial, is indirect. The Court forgets, I think, a warning uttered during the congressional discussion of the First Amendment itself: ' . . . the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand . . . "
--William J. Brenner, Dissenting opinion in Braunfeld v. Brown, U.S. Supreme Court, October Term, 1960 (May 29, 1961), 366 U.S. 599, at pp. 610-616 [Justice Potter Stewart joined in this dissent].
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