Sober Sundays

Blue laws. They are quirky and annoying outdated restrictions on activities to ensure Sunday is a day of rest and worship. Some go beyond dictating when you can or cannot get a drink, and sometimes they leave you scratching your head wondering, why in the world are they still on the books?

In this season's fourth episode, we dive into the history and impact of the laws. We explore the story of a Brooklyn nightclub suing New York for refusing to issue a special event permit for extended hours on New Year's Eve and the ongoing debate surrounding blue laws and their place in modern society. And we also look at the upside: how these laws give some workers the reprieve they need from a long work week.

Prepare for a joyride through a legal antique shop, just hope the lawman doesn't catch us!

Special guests:

• Polina Buckley, owner of nightclub Eris Evolution
• Jonathan Corbett, a civil rights attorney
• Patricia Campos-Medina, executive director of the Worker Institute at the School of Industrial and Labor Relations at Cornell University

This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.

Editorial staff is Sean Duffy and Jamie Ross.

Chapters

• 0:00 We're the Daddies
• 9:31 Just a Façade
• 22:27 Puritan Religious Limitations

Transcript

(Intro music)

Kirk McDaniel: Well, howdy! Welcome to Sidebar, a podcast by Courthouse News Service. I’m your host, Kirk McDaniel. How about you get comfortable, can I get you a drink? Oooh, sorry, in these here parts I can't be serving anything with alcohol today, it’s the law. But hey, don’t blame me. It’s the Legislatures that made it this way. Blue laws. They are quirky and annoying and sometimes leave you scratching your head wondering, why in the world are they still on the books? Reporter Nina Pullano set out to better understand where these laws come from and the ways they still impact our lives in the modern day. Restrictions on people’s activities go beyond just dictating when they can or cannot get a drink. Get ready for a joyride through a legal antique shop, let’s just hope the lawman doesn't catch us!  

(Dance music)  

Nina Pullano: Step into Eris, a nightclub in Brooklyn, and you’re in a small lounge with a few couches, some tables. Hanging from the ceiling is a big light fixture – strings of little orbs dangle from a trellis – like an LED grapevine. Keep walking through heavy curtains to get to the bar and dance floor, which is small enough that I don’t feel like I’m at a wedding venue, but high ceilings help it not feel cramped. Decor is eclectic from potted plants to a skeleton wearing pink sequined bunny ears. Down the staircase – adorned with playing cards and Alice in Wonderland paraphernalia – you feel like you’re going down the rabbit hole. It’s another lounge – this one featuring velvet couches – and throw pillows in an area called the cuddle puddle. No shoes allowed. Plus, there’s another dance floor and DJ, and a hallway covered in glowing neon murals. It’s cozy but vibrant, and if you want to party ‘til the sun comes up, it's a great place to be for New Year's Eve. Say you’re still there, shaking off the year and leaving your troubles on the dance floor, when the clock strikes four. Usually that’s closing time in New York, but on this night, you don’t have go home and you can stay here – thanks to your party hosts and a temporary all-night permit from the state liquor authority. Well – that's usually the case.  

(Record scratch) 

NP: As revelers rang in 2023, the state refused to give out that special event permit because the Saturday night festivities would spill into Sunday – the one day a week that New York – like many other states – has additional restrictions on liquor sales. Those restrictions don’t sit well with everyone.  

Polina Buckley: No, it's just not fair. You dangle this thing, and then you take it away. And it's just yet another way of showing, ooh, we're the daddies, we have the power and you have no you have no choice but to comply and we say no. Why? Why? Because it's so antiquated. It makes absolutely no sense. And if anything, you as a city, you're losing out on money, because all of that money that gets put into our register, we pay taxes on. So not only do you make us suffer, you're kind of like biting your nose to spite your face. You know?  

NP: Polina Buckley – that’s her stage name, a tribute to the late musician Jeff Buckley – is suing the state over the decision not to issue those extended licenses this past New Year's Eve. At her nightclub in Brooklyn – Eris Evolution – she wanted to host an all-night banger – when one party ends, another begins.  

PB: The last new year that we actually were able to do, so from like 5 a.m. to 5 p.m., was actually the bubbles and bass camp from the New York City burner scene. 

NP: That’s burner, as in, Burning Man, the giant festival in the desert every year in Nevada.  

PB: These guys are legendary on the playa. Their whole shtick is that they start at 5 a.m. and provide bass and champagne. So, you can't throw that party, you know, at any other given time, because that's the whole spiel. And it was really upsetting because if not for this stupid law, we probably would have booked them, and we would have had fun again at our venue. 

NP: That stupid law – it's part of a class more commonly known as blue laws – or Sunday closing laws or Lord’s Day Acts. They’ve been around for centuries and ban all kinds of commerce and activities. They were first established to make sure Sunday is truly a day of rest. So clearly, these are very much rooted in Christianity.  

(Angelic sound effect) 

NP: To be fair, most of us are not likely to notice if the bars are still up and running after 4 on any night – even New Year's Eve. But early Americans were held to all sorts of rules on Sundays that really shaped the culture.  

(Fife music) 

NP: Blue laws were established in colonial settlements. Their English origins may go back as far as the 13th century. Since the idea was to preserve Sunday as a day of rest and worship, they banned people from doing pretty much everything: working, shopping, hunting, traveling, doing housework, any kind of public entertainment or sports, using birth control, wearing lace or precious metals, kissing your spouse – and definitely no partying. Punishments for violating blue laws were reportedly harsh. They escalated from fines to three hours in the stocks, to public flogging and dismemberment or execution – although there’s some suggestion that historical accounts of these drastic consequences may be exaggerated. The most draconian blue laws went out the window with the end of the colonial period. But restrictions on shopping, and in particular, alcohol sales, stuck around. They gained steam during the temperance movement, in the early 19th century, and held on even after prohibition ended in 1933. These laws have been chipped away at in the decades that followed, but most states still have some blue laws. When it comes to alcohol, that usually means setting time limits for Sunday sales – so nothing before noon or 10 a.m. These days – restrictions on buying automobiles are still somewhat popular. Car dealerships can’t open on Sundays in 13 states including Colorado, Illinois, Louisiana, Minnesota, New Jersey, Pennsylvania, Wisconsin. Some blue laws still in play are a little more obscure. On Sundays in Pennsylvania, you can only hunt foxes, crows and coyotes – Connecticut and West Virginia also have Sunday restrictions on hunting. In New York, until 2021 it was illegal for barbers to work on Sundays. The law was struck down by the former Governor Andrew Cuomo. There are a ton of other really fun and totally unverifiable blue laws out there that I encourage you to Google, with the understanding that even if they were still on the books today – like the barbering law – it’s very unlikely that they’re actually enforced.  

(Speakeasy music) 

KM: A haircut, illegal on a Sunday? I will say I don’t have much room to be surprised, the Lone Star State is full of these silly statutes. Of course, Texans still can’t buy liquor on Sundays, but until 1985 there used to be a myriad of laws banning the sale of department store goods such as clothing, jewelry, toys and lawnmowers, oddly enough. Stores here simply ignored the laws, forcing lawmakers to put an end to them so they didn’t have to enforce them. As for getting booze on Sunday, though, I cannot tell you the number of times I have been craving a homemade Bloody Mary and had been without vodka, leaving me wishing I had been better stocked before the Lord’s Day.  

NP: Yeah, vodka’s a pretty central ingredient for a Bloody Mary, I would say. 

KM: There’s this whole debate among people wherever you go, and I’m sure it’s like this in other states, why do we have these laws? They just feel so silly.

NP: Here in heathen New York, we don’t have as big a problem, but as you’ve heard, we're still having those conversations too. 

KM: That’s the other thing that just amazes me about this whole story is, depending on where you live, no one was really immune from the blue law. 

NP: In New York, at least since I’ve been of legal drinking age, it hasn’t come up too much, but even in the last few years there have been changes. They raised that time for Sundays, at least for on-premises drinking, from noon to 10 a.m. So, kind of inching toward Sunday being on par with the rest of the week, but still not quite getting there. But like I said it doesn’t really come up day to day, which is one of the things that’s so interesting about this case with the nightclub. 

KM: Yeah, I can only imagine too because as a lifelong Texan who is of legal drinking age, we just come to expect it. It’s one of those things that you live with, and you joke about. As New Yorkers, it’s probably even more annoying because it’s this almost like once in a moment thing that comes up periodically stopping you from enjoying probably one of the dare I say booziest nights of the year, it’s the first night of the year. 

NP: Yeah absolutely – you can’t have a party starting at 5 a.m. if your bar has to shut down at four – it kind of throws a wrench in all the festivities.  

(Bass-heavy music) 

NP: You can count on New Year's Eve to fill up the dance floor. But the Eris court battle isn’t just about keeping the party going all night once a year. It’s taking a stand against laws that were founded in order to accommodate and even impose the practices of a particular faith.  

PB: Don’t push it on anybody. Practice whatever religion you want. You can believe in the Flying Spaghetti Monster, but just don't project this shit on me. You know what I mean? You give the people of New York this fabulous thing that they can apply for every year. ‘Hey guys, we'll be nice to you. One day a year you're allowed to party it up and have fun. But once every seven years we're gonna take it away from you because it's the Lord's Day.’ What? First of all, Lord is probably going to be on board with partying. I mean, the guy turned water into wine. Let's start with that. And then, it's not fair. Why, why, why? Who, who suffers from this? Name me one person who's like, ‘I need that day. I need once every seven years that everybody's quiet.’ Nobody needs that. It's New York. Come on. 

NP: Polina brought the federal lawsuit last year against the head of the New York State Liquor Authority – the idea was to do away with the state’s Sunday exception before New Year's Eve came around. In November, Judge Frederic Block denied a preliminary injunction. Eris now has a pending amended complaint. But here’s the thing: Judge Block actually said outright at a recent hearing that he agrees the law is silly. He told the plaintiff, quote, I’m on your side, but the Supreme Court doesn’t seem to be. The judge – who’s 88 years old and has been on the bench in Brooklyn since 1994 – said he’d overrule the Supreme Court if he had the power. He even took a straw poll of the attorneys for the state, asking if they agreed with him. They declined to play along, and when I reached out to the liquor authority for comment they said, ‘The SLA cannot comment on pending litigation. Additionally, with regard to your question about the law limiting the issuance of such permits to weekdays, the SLA in not in a position to comment on the legislative intent of the statute.’ For Judge Block the precedent is clear. He’s governed by a case called McGowan vs. Maryland. It was decided in 1961 after a department store was convicted and fined for selling – on a Sunday – a loose-leaf binder, a can of floor wax, a stapler, staples and a toy. Maryland at that time had banned the sale of everything but necessities like milk, bread, fruit, medicine, confectioneries – gotta have our sweets – plus tobacco products, gasoline, oils and greases and newspapers. The Supreme Court ruled that even though blue laws were intended to preserve the Christian faith, by now, most of them are secular in character, and it’s constitutional for states to set aside a day of rest and recreation in order to improve their citizens’, quote, health, safety, recreation and general well-being. It’s about the positive effect on society. That reasoning just doesn’t cut it for Eris Evolution. They say it doesn’t make sense when applied to stopping liquor sales for a few hours every time New Year’s Day falls on a Sunday. Here’s the civil rights attorney representing Eris, Jonathan Corbett.  

Jonathan Corbett: I've been a little disappointed at the speed at which the court has been willing to dive beneath the surface and to see that there is this that the secular purpose is really a sham, that it's just a facade. And even those original Supreme Court cases do require the government to demonstrate their purpose, not just to allege it, but to actually go through why they really need it and working to convince the court to do the same here.  

NP: Working might be the keyword. Were this case to make it to the high court, the battle would continue uphill.  

JC: They have all sorts of ways that they were willing to excuse these blue laws and, you know, with the current composition of the Supreme Court, who knows which ways they might find to justify or excuse the laws. 

NP: Precedent is there, but Jonathan wants a fight. He wants discovery and he wants the state to explain what’s going to be improved by keeping this law in place.  

JC: You know, it's kind of surprising in New York in 2023, that there are still some of these old laws on the books that don't seem to have any reason or purpose. No one seems to really want them anymore. I'm not sure that there's anyone advocating for this law. And they're just there because they've never been challenged. This one, perhaps because it only takes effect on New Year's Eve every once every seven years. That said, I think it's still important. I think that these laws that are established in religion should be taken off the record, whether they're, you know, impacting people on a daily basis or just rarely, or you know, how big or small.  

NP: As for any argument that employees are getting a day of rest, Jonathan says that doesn’t really fit here, either.  

JC: I see a New Year's Eve as being a way for people that work in that industry to make a lot of money. That's a night where typically, a bartender might walk out with $1,000. So, it's not as if the government is saving anyone from work that they don't want to do here. You know, in other contexts, maybe that could be the case. And maybe that would be a winning argument. It's just here, this is such a far-fetched argument. 

NP: Some legal scholars agree that it’s time to do away with blue laws altogether. Professor Ira Robbins from American University’s Washington College of Law published a paper last year called ‘The Obsolescence of Blue Laws in the 21st Century.’ He writes:  

Voiceover: While at one time they might have aligned with societal values or served a practical secular purpose, such as providing workers with a day of rest, modern society renders blue laws obsolete and nonsensical. Due to rapid change in societal opinion regarding religion and liquor, many states have already repealed and chipped away at liquor blue laws over the last decade. Modern developments in technology have also changed the way consumers shop. Consequently, Sunday closing laws do not effectively curb Sunday commerce, but instead assure that brick-and-mortar shops and automobile lots unfairly bear the burden of these restrictions. While blue laws have previously survived First and 14th Amendment challenges, they have become increasingly constitutionally suspect, as they are riddled with exceptions urged by special interest groups. Moreover, federal regulatory schemes more effectively accomplish the secular goals of blue laws. 

NP: There's another reason Professor Robbins says it's time for states to repeal blue laws across the board. It’s called the doctrine of desuetude. According to the doctrine, if a law falls out of practice, if it stops being enforced, it’s effectively dead. Kind of like the old ‘if a tree falls in the forest’ question. If a law is on the books but no one is there to enforce it, does it still exist? So, for example, a practice we definitely don’t enforce now, a punishment called ducking. Like blue laws, it began in Medieval England and was brought over to the American colonies. You’ve probably seen this portrayed before. The subject is strapped to a wooden chair, attached to a long arm for leverage, and then repeatedly dunked in water to publicly punish and humiliate them. It was typically used to punish people for minor transgressions, like social missteps or maybe being a swindling tradesmen. But especially in its later use, it was mainly reserved for women – those who were considered disorderly, or gossips, or ‘common scolds,’ as they were called – overly nagging or critical. And of course, ducking was also used as a way to deal with women suspected to be witches.  

Monty Python: We’ve found a witch! 

NP: If the suspect drowned, she was cleared and saved a seat in heaven. If she confessed to being a witch, she was burned at the stake. It’s a fair cop. This was an early American thing – it became law in 1662 in Virginia and the last records of ducking in the states were in the early 1800s. Then in 1825 the Pennsylvania Supreme Court decided not to enforce the punishment of ‘ducking of the common scold,’ as it’s referred to. It applied this doctrine of desuetude and found that, quote:  

Voiceover: Total disuse of any civil institution for ages past, may afford just and rational objections against disrespected and superannuated ordinances. 

NP: Translation: use it or lose it. In other cases, remnants of these special punishments for women who misbehaved stayed in the record long after they fell out of practice. In New Jersey, being a common scold was technically still a common law offense until 1972, when it was struck down by a circuit judge who found it discriminated against women and could be considered corporal punishment. Plus, disorderly conduct laws already had it covered. Obviously, we weren’t still ducking scolds into the days of the civil rights movement. And I don’t know about you, but no one’s ever stopped me from getting my hair cut on a Sunday. So, if we barely even notice these puritanical laws, does it matter if they stay in effect? For folks like Polina and Jonathan, it really does. In fact, having a good time is all about brushing off the rules.  

PB: This is an outlet where you can actually be yourself. You go to work, you're supposed to play one part. You're at home, with your neighbors and your community, this is where you let go.  

KM: There are small details about American history that just baffle me when I am reminded of them and ducking is definitely one such detail. It is also just silly to imagine someone who is trusted to administer the law being like, ‘yep, your punishment is we are gonna dunk you in water.’ Makes me think twice about those carnival dunk tanks.

NP: Yeah, I mean, hearing about something like ducking – it's sort of like, equal parts horrifying and just like, pure slapstick, which is why Monty Python played off that as a punishment. It’s interesting too, in the early days, ducking was used more frequently for both men and women. It was actually called cucking, which is not from the root word you’re thinking of. It comes from cucking stool – which is a term in Middle English for commode – because that’s what they were fashioned out of. So, it was literally like making someone sit on a toilet while they were carted around town. So however, you take that it was a little more egalitarian but later on it seems to have morphed into a punishment for mouthy women. Speaking of the origin of terms, by the way, no one really knows where the term blue law came from. One theory is that it refers to ‘blue-nosed,’ which means proper or puritanical. I think the leading theory is that the early laws in Connecticut were written on blue paper, but there haven’t been any copies of that produced to prove it. It’s less likely but there’s also an idea that there’s some relation to blue comedy – kind of like raunchy behavior being the link. It's probably not that but it’s a fun connection. 

KM: It’s just kind of amazing how these laws morphed and evolved to saying this is the state’s idea of what is a moral activity and what you morally should be doing.

NP: You know, we don’t duck witches these days, we don’t persecute witches, if you want to practice witchcraft that’s your right. And so, what has morphed, what has changed, I think is exactly the question here. In some ways the Brooklyn lawsuit is sort of a check-in. It's 2023, its sort of checking the state government on where it’s gone with these, where does it want to go – kind of asking the state to answer for this law. Are you going to fight to keep this on the books, or is it time to roll over and do something different? And the Legislature may, before this case is resolved, decide to do away with this. But I just think it’s interesting legal argument – First Amendment argument – and to take it on in the courts at this time, and obviously also challenging this decades-old Supreme Court precedent – I think it’ll be a neat one to follow and see where it winds up.

KM: Well, you took us to the club earlier, I think it’s about time you take us to work.

NP: Alright, let’s do it.  

(Mall music) 

NP: With all of their complicated history, blue laws still have supporters in the Year of Our Lord 2023. The more rigid blue laws that are still around today may have more to do with keeping traditions alive in communities that have just agreed to keep things chill on Sundays. Like Bergen County, New Jersey, with its Sunday shopping ban. It’s a rare holdout located just a quick trip across the Hudson River from the shopping epicenter that is New York City, and six days a week, Bergen itself is a major shopping destination – it’s one of the largest in the country, with giant shopping malls and big box stores. The Garden State Plaza alone, New Jersey’s biggest mall, draws 20 million shoppers each year. And it doesn't hurt that it’s in a state with no sales tax on clothes and shoes. The bustle of all that commerce, and the serious highway traffic that comes with it, disappears one day a week. I talked with Dr. Patricia Campos-Medina, who directs the Worker Institute at Cornell University’s School of Industrial Labor Relations, about what it means when a county actually embraces its blue laws.  

Patricia Campos-Medina: Blue laws are one of those things that, we have more stories of counties and states repealing them than actually keeping them on the books, because it's a legacy of some of the Puritan religious limitations to what can we do on Sundays. But there's some social, local issue that is really rooted on what the local community cares about and what they're, they're accustomed to. So, it's sort of like any, any debate on blue laws is based on what that community wants to but ultimately, I think we have moved away from making blue laws about religion it’s more about what’s a custom now for the local community to be used to.    

NP: In 2010, former New Jersey Governor Chris Christie tried and failed to do away with the ban on selling clothing, furniture, appliances or building materials. He estimated that opening up Sundays would bring in another billion dollars annually and $65 million in sales tax. The governor ended up backing down from that mission after getting pushback, including from fellow Republicans in Bergen County. I was just talking with a friend who grew up in Bergen County and said that while it can be annoying that you can’t shop on Sundays, it was really just a way of life. You get all your errands done on Saturday and Sunday you go to the park with your family. She didn’t realize that it was unusual until she got to college and was able to buy stuff all weekend. 

PCM: Don’t try to change it! There's a real backlash from local residents, even though people who come from other places are like, “Why can't I shop on a Sunday in Bergen County?” That's one of those things like pumping gas in New Jersey: you can't change because people are used to it.  

NP: Yeah, if you’ve never driven through the great state of New Jersey, you’re not allowed to pump your own gas – this is also the case the state of Oregon – and it can confuse those of us just passing through. In defense of blue laws, some also argue that they allow small business owners and employees to take a day off without worrying about being outsold by competition, like other car dealers or smaller stores that sell alcohol and compete with bigger chains. And advocates for workers’ rights may come out in favor of laws that stop commerce on Sundays. As some unions see it, repeal the law and you’re losing your right to a day off. 

PCM: It's something that some unions and some workers still prefer because that means that they get the day off. It’s guaranteed that you won’t show up to do that. And I think that that's sort of the balance, you know, because we have very few instances in any of our industries right now in society which you actually have a day that you’re not expected to work if you're a retail worker. I always remember that saying, ‘workers want bread and roses too,’ which means workers want time off to enjoy for their families, and their leisure and their welfare. That's part of having a healthy society.  

NP: When we put blue laws into that context – how they fit in with labor rights – it calls to mind a more modern discussion about limiting workdays. One you’ve probably heard about in the news and, if you’re like me, your ears perked up and your heart filled with just a little bit of hope.  

(Drumroll)  

NP: The four-day work week. A recent study out of the United Kingdom raised the perennial conversation about swapping out one day of labor with a day to ourselves. During the study, which went for six months, employees reported better sleep, stress management and mental health. Meanwhile most companies saw no loss in terms of productivity, and revenue stayed about the same. Around 3,000 employees participated from 61 companies. The vast majority of the companies kept going with the shorter week after the study was over. To be clear, the reasoning is pretty different from how blue laws got started. 

PCM: It's less of a religious argument and more of an economic and personal wellbeing argument. 

NP: Because of that, companies could pick any day to shut down. It doesn’t even have to be a three-day weekend if taking Wednesdays off makes sense for business. So even if the four-day week catches on, most likely that would be across white collar jobs or office jobs, you might find yourself with a different extra day off from your friends or your partner, which kind of eliminates one of the tenets of Sunday laws: this idea of togetherness. But there’s still this common theme. 

PCM: It's not the same as blue laws, but it's trying to achieve the same family life balance, right, that independently of what work or what industry you're in, that you still need time off to get yourself ready and to connect with your family and to get some rest. And whether you do it through blue laws, or whether you do it through a four-day week, it's acknowledging the fact that in order for workers to be productive and do their best work, they also need to have consistent scheduled time off to spend with their families. So that I think that's the connection. That's the balance.  

NP: it might do us some good to spend a little more time away from work – shaking off the stress – catching up on sleep – maybe even hitting an all-night dance party. 

KM: Can you imagine it? A four-day work week. At the start of this episode, I was feeling quite bummed about not getting my drink, but if these laws are giving barkeeps and liquor store owners a day to unwind, maybe there is a good side to blue laws. I’m still thirsty though. Thank you for listening! If you enjoyed this episode, be sure to drop us a review and check out previous episodes. Follow us on Twitter @SidebarCNS and visit us at courthousenews.com for all your legal and legal adjacent news. In our next episode, can judges take a joke? We look into parody law and when comedy and the courts are intertwined. See ya.

(Outro music)