Delegate Mark Keam - Virginia's 35th House District

Legal Researcher weighs in on Delegate Keam's legislation

Va. legislator targets Sunday hunting ban

First Amendment Watch

By David L. Hudson Jr. First Amendment scholar 01.20.11

It will be lawful to hunt wild animals and birds on Sundays in Virginia if a measure recently introduced in the General Assembly passes.

Legislator Mark L. Keam introduced H.B. 2442 on Jan. 19. It would eliminate the state law against hunting on Sunday.

The restriction of hunting on Sundays may seem odd, but there is a long history of so-called "blue laws" in the United States. These laws have forbidden all sorts of activities – including selling alcohol, engaging in commerce and holding sporting events.

Courts have upheld many of these blue laws through the years. In 1898 the Ohio Supreme Court ruled in State v. Powell that the state could prohibit the playing of baseball games on Sundays without violating religious freedom or other individual liberties. In 1961, the U.S. Supreme Court upheld a series of blue laws against challenges under the establishment and free-exercise clauses of the First Amendment. In one of those cases, McGowan v. Maryland, the high court upheld a Maryland law that prohibited the sale of most items other than food on Sundays.

Many have argued that blue laws are unconstitutional on First Amendment grounds because they were based on an impermissible religious motivations – preserving the Christian Sabbath day. However, courts have often held that blue laws have a secular purpose, such as providing a day of rest that benefits everyone.

"Any challenge based on either free exercise or establishment would almost certainly be rejected" today owing to that group of 1961 rulings, said Robert M. O'Neil, founder of the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression. O'Neil said states occasionally eliminate blue laws "without constitutional mandate," and that "most states have abolished most blue laws."

"Virginia's hunting ban is apparently about the only survivor in the Commonwealth – there are still lots of anomalies and loose ends," he added.

Although constitutional challenges based on the First Amendment might fail, there is a growing sense among legal observers that many blue laws are outmoded and not reasonable in modern society. Virginia's Sunday hunting ban may prove as antiquated as a Civil War musket.

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