Did the Supreme Court's ruling striking down Connecticut's Sabbath-observance law also make Maryland's retail day-of-rest laws unconstitutional?

Plain-English summary

The Department of Legislative Reference asked the Attorney General what the Supreme Court's 1985 decision in Thornton v. Caldor, Inc. meant for Maryland's own day-of-rest laws. Thornton struck down a Connecticut statute that gave employees an absolute right not to work on whatever day they personally observed as their Sabbath, finding that the law impermissibly advanced religion in violation of the Establishment Clause. Several Maryland counties, including Prince George's, Montgomery, Baltimore, Anne Arundel, Frederick and Carroll, Harford, and Howard, had similar-sounding statutes letting retail and wholesale employees choose Sunday or their Sabbath as a day off.

The Attorney General concluded that the Maryland statutes were not clearly unconstitutional under Thornton, because they were meaningfully different from Connecticut's law. Maryland's provisions let every employee, regardless of religious belief or lack of one, designate Sunday as a day of rest, and Maryland had no administrative process for testing whether an employee's chosen "Sabbath" was religiously sincere. The Maryland laws also exempted emergencies and managerial and professional employees, unlike the "unyielding" Connecticut statute, and applied only to retail and wholesale businesses that were generally able to accommodate different employees' days off. The opinion nonetheless recommended that any future day-of-rest legislation include a severability clause given uncertainty about Thornton's full reach.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Supreme Court's Thornton v. Caldor decision strike down Maryland's day-of-rest laws for retail workers?
No, not according to this opinion. The Attorney General concluded the Maryland statutes were significantly different from the Connecticut law at issue in Thornton and were not clearly unconstitutional, though the opinion acknowledged some uncertainty given how new the Thornton decision was.

Why did the opinion think Maryland's laws were different from Connecticut's Sabbath law?
The opinion identified several distinctions: Maryland's provisions let any employee, not just religious Sabbath observers, choose Sunday as a day of rest; Maryland had no procedure for verifying an employee's religious sincerity; and the Maryland laws made exceptions for emergencies and excluded managerial and professional employees, unlike Connecticut's "unyielding" statute.

Did the opinion recommend any changes to Maryland's laws to remove the constitutional uncertainty?
Yes. The opinion suggested that one way to further insure the constitutionality of the existing provisions would be to amend them by deleting the word "Sabbath" and substituting "day of rest," and it recommended that any new day-of-rest legislation include an express severability clause given the still-developing impact of Thornton.

Background and statutory framework

A group of Maryland county-specific statutes in Article 27, including §534H (Prince George's County), §534J (Montgomery County), §534L-2 (Baltimore City and County), §534N-3 (Anne Arundel County), §534Q (Frederick and Carroll Counties), §534R-1 (Harford County), and §534W-2 (Howard County), let nonmanagerial and nonprofessional retail and wholesale employees choose Sunday or "his Sabbath" as a day of rest, and barred employers from disciplining or penalizing an employee for exercising that choice, subject to an emergency exception and enforced by criminal fines or civil treble damages depending on the county.

The opinion analyzed these statutes against Thornton v. Caldor, Inc., 472 U.S. 703 (1985), in which the Supreme Court struck down a Connecticut statute, Conn. Gen. Stat. §53-303e(b), that gave an "absolute right not to work" only to employees who actually observed a religious Sabbath, finding the law impermissibly advanced religion in violation of the Establishment Clause. The Connecticut Supreme Court's decision below, Caldor, Inc. v. Thornton, 464 A.2d 785, 794 (Conn. 1983), had also found the law fostered excessive governmental entanglement with religion. By contrast, the opinion reasoned that Maryland's laws served the secular purpose the Supreme Court had already approved for Sunday closing laws in McGowan v. Maryland, 366 U.S. 420, 456 (1961), and paralleled the accommodation approach the Court had favorably discussed in Braunfeld v. Brown, 366 U.S. 599, 608 (1961), for employees who observed a non-Sunday day of rest for religious reasons. The opinion also noted that Maryland's managerial and professional exclusion echoed the federal labor standards exemption at 29 U.S.C. §213(a)(1) and Article 100, §76 of the Maryland Code.

Citations

Statutes:

• Article 27, §534H of the Maryland Code (Prince George's County day-of-rest provision)
• Article 27, §534J of the Maryland Code (Montgomery County day-of-rest provision)
• Article 27, §534L-2 of the Maryland Code (Baltimore City and County day-of-rest provision)
• Article 27, §534N-3 of the Maryland Code (Anne Arundel County day-of-rest provision)
• Article 27, §534Q of the Maryland Code (Frederick and Carroll Counties day-of-rest provision)
• Article 27, §534R-1 of the Maryland Code (Harford County day-of-rest provision)
• Article 27, §534W-2 of the Maryland Code (Howard County day-of-rest provision)
• Article 100, §76 of the Maryland Code (managerial/professional exclusion from labor standards laws)
• 29 U.S.C. §213(a)(1) (federal managerial/professional labor standards exemption)
• Conn. Gen. Stat. §53-303e(b) (the Connecticut Sabbath statute struck down in Thornton)

Cases:

• Thornton v. Caldor, Inc., 472 U.S. 703 (1985)
• Caldor, Inc. v. Thornton, 464 A.2d 785, 794 (Conn. 1983)
• McGowan v. Maryland, 366 U.S. 420, 456 (1961)
• Braunfeld v. Brown, 366 U.S. 599, 608 (1961)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law—First Amendment—Establishment Clause—Maryland Statutes Granting Employees a Day of Rest not Clearly Unconstitutional.

August 5, 1985

Mr. Larry Chambers
Department of Legislative Reference

You have requested our views concerning the effect on Maryland statutes of the recent Supreme Court decision in Thornton v. Caldor, Inc., 472 U.S. 703 (1985), striking down a Connecticut statute granting employees the right not to work on their Sabbath. The Maryland statutes in question are found at Article 27, §534H (Prince George's County); Article 27, §534J (Montgomery County); Article 27, §534L-2 (Baltimore City and County); Article 27, §534N-3 (Anne Arundel County); Article 27, §534Q (Frederick and Carroll Counties); Article 27, §534R-1 (Harford County); and Article 27, §534W-2 (Howard County). Article 27, §534N-3(c)(1), which reads, in pertinent part, as follows, is typical of these provisions:

"Except in cases of an emergency declared by the federal, State, or county government, every nonmanagerial or nonprofessional person employed in any retail or wholesale establishment may choose Sunday or his Sabbath as a day of rest and, upon the filing of written notice by the employee with the employer that the employee chooses this day as a day of rest, no employer may discharge, discipline, discriminate against, or penalize the employee in any manner for exercising his rights under this subsection." (Emphasis added.)1

In our view, the Maryland statutes are significantly different than the law at issue in Thornton and are not clearly unconstitutional.

I
Thornton v. Caldor

The law challenged in Thornton provided that:

"No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal." Conn. Gen. Stat., §53-303e(b) (emphasis added).

The Supreme Court held that this statute, which it characterized as "unyielding", 472 U.S. at 710, had the effect of impermissibly advancing a particular religious practice, observance of a Sabbath, and, thus, violated the Establishment Clause of the First Amendment.2

In so holding, the Court relied on two significant features of the statute. First, as interpreted by Connecticut's courts, the statute granted an "absolute right not to work" on the day designated as one's Sabbath, regardless of the effect that may have on co-workers and employers. 472 U.S. at 709-10. Second, the statute was written so as to grant that right only to persons who actually observe a Sabbath. Id.3

II
Application to Maryland Statutes

In our view, a number of key distinctions between the Maryland statutes and the invalid Connecticut law might well make a constitutional difference.

First, it is much easier to characterize the Maryland laws as being concerned with the secular purpose of affording employees a day of rest rather than with the religious purpose of benefitting Sabbath observers. As we read the Maryland prohibition, all employees, regardless of motive, religious belief, the day of their Sabbath, or even whether they have a Sabbath, have the right to designate Sunday as their day of rest. Alternatively, an employee could designate "his Sabbath" as his or her day of rest.

Significantly, the Maryland laws, unlike Connecticut's, have not been construed by the courts to require that an employee observe the "Sabbath", in a religious sense, as a prerequisite to designating a day other than Sunday "as a day of rest". Indeed, unlike Connecticut, Maryland has established no administrative procedure for testing the bona fides of an employee's choice of Sabbath. Cf. Thornton, 472 U.S. at 708.

The penalty provisions of the Maryland statutes lend some support to this reading. These provisions punish employers who compel persons to work on the employee's "chosen day of rest". See e.g., Article 27, §534J-7. In light of the particular features of the Maryland scheme that would appear to promote a "day of rest" for employees, we cannot definitely characterize the "primary purpose" of the statute as advancing religion.4 See McGowan v. Maryland, 366 U.S. 420, 456 (1961).

Even if the term "Sabbath" in the Maryland laws were construed to have retained its original religious meaning, nevertheless the context and purpose of the Maryland provisions are essentially secular. In Maryland, unlike Connecticut, the employee "day of rest" provision applies only to those mercantile establishments that, in counties where the Blue Laws have been liberalized, are likely to be open both weekend days. The purpose of the provision is to extend the same "day of rest" benefit to non-Sunday Sabbath observers as to Sunday Sabbath observers. And, the Supreme Court has observed, such an extension of the plainly constitutional Sunday "day of rest" requirement "may well be the wiser solution to the problem" of accommodating "those people who, because of religious conviction, observe a day of rest other than Sunday". Braunfeld v. Brown, 366 U.S. 599, 608 (1961).

Plainly, the Maryland laws unlike Connecticut's do not grant the Sabbath observer a privilege wholly denied to other employees. The Connecticut statute "gives Sabbath observers the valuable right to designate a particular weekly day off, typically a weekend day, widely prized as a day off. Other employees who have strong and legitimate, but nonreligious reasons for wanting a weekend day off have no rights under the statute." 472 U.S. at 710 n. 9. By contrast, the Maryland provisions give everyone, Sabbath observer or not, a right to a "prized" weekend day off.

Unlike the Connecticut statute, the Maryland provisions are not "unyielding". The Maryland statutes do give some consideration to the burdens placed upon employers by exempting emergency situations and by excluding professional and managerial employees.5 In addition, as discussed above, the employee day of rest prohibition applies only to retail and wholesale establishments. Because many of these establishments are typically open on weekends, they are better able than other employers to accommodate their employees' differing choices of days off.

III
Conclusion

In summary, it is our view that Maryland statutes protecting the right of employees not to work on the day they have designated as their day of rest are not clearly unconstitutional.

In any event, because of the Thornton decision and its yet undetermined impact on laws such as ours, we suggest that any new legislation enacting employee day of rest protection to include an express severability clause to prevent any impact on other provisions of the bill or of existing law.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Kathryn M. Rowe, Staff Attorney

Avery Aisenstark, Chief, Counsel
Opinions and Advice

Editor's Note: The preceding opinion was originally written as a letter of advice. Because of the importance of the issue, it is published here in a slightly revised format.

1 Depending upon the county, this prohibition is enforceable via a criminal fine or both a fine and a civil treble damage remedy keyed to the employee's wages for the day he or she was forced to work. There is no administrative mechanism for enforcing these provisions.

2 "Congress shall make no law respecting an establishment of religion...." U.S. Const, amend. I.

3 The court below also found that the statute fostered excessive governmental entanglement with religion by placing the Connecticut Board of Mediation and Arbitration in a position where it would have to consider which religious activities constituted observance of a Sabbath. Caldor, Inc. v. Thornton, 464 A.2d 785, 794 (Conn. 1983). And the Connecticut court rejected Thornton's argument that the law merely allowed employees to designate a day of rest and thus served a secular purpose. 464 A.2d at 792-94. In the court's view, such a position was untenable in light of the commonly accepted meaning of the word "Sabbath." Moreover, the law would be unnecessary if that were its purpose, because Connecticut law already protected employees from being forced to work more than six days a week. Conn. Gen. Stat. §53-303e(a).

4 One way to insure the constitutionality of these existing provisions of Maryland law would be to amend them by deleting the word "Sabbath" and substituting "day of rest".

5 Managers and professionals are often excluded from labor standards laws. See 29 U.S.C. §213(a)(1); Article 100, §76 of the Maryland Code. Thornton was a managerial employee.