Do You Have a Constitutional Right to Your Mimosa at Sunday Brunch?

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By Lindsay Frazier; Staff Member (Vol. 16)

Picture this: You walk into your favorite brunch spot on a Sunday morning at 11:45 a.m. with a group of friends. You decide to partake in a traditional brunch activity and order a mimosa to go with your food. The waitress proceeds to inform you that the restaurant cannot serve alcohol to patrons before noon on a Sunday. Before this summer, this scenario occurred at every restaurant in North Carolina. The passage of Senate Bill 155, also known as the Brunch Bill, now allows restaurants to serve alcohol beginning at 10 a.m., subject to a decision by local government entities.

Towns and cities such as Raleigh, Carrboro, Hendersonville, and Chapel Hill quickly passed ordinances allowing the sale of alcohol starting at 10 a.m. on Sundays, but other areas of the state did not move as quickly. In New Bern, where the city ordinance failed on its first attempt at passage, a city alderman called the bill “another invasion on a Sunday, which is a religious day for a lot of people.” Others expressed concern that the bill’s passage would deter people from going to church. Such comments from elected officials raise questions of the separation of church and state concerning laws that are often decided in ways that benefit or are motivated by religion.


Blue Laws and the Constitution

Laws that prohibit or limit certain activities on Sundays, including those affecting alcohol sales, are commonly known as “blue laws.” Blue laws have long been subject to attack on constitutionality grounds, but the United States Supreme Court has ultimately upheld them in a variety of cases.

In McGowan v. Maryland, the Supreme Court did not strike down blue laws in Maryland, which prohibit the sale of drugs, tobacco, and newspapers on Sunday, based on the grounds that laws with religious origins are not unconstitutional if they have a secular purpose. The McGowan court further stated that the Constitution does not ban federal or state regulation of conduct whose reason or effect merely happens to align with the teachings and/or beliefs of some religions (such as observing Sunday as a holy day). The Court concluded that most Sunday closing laws lean toward a secular purpose, as they provide a uniform day of rest for all citizens. Other blue law cases heard by the Supreme Court have upheld a prohibition on sales of certain goods on Sundays or mandatory Sunday store closings for certain businesses; for example, in Braunfeld v. Brown the Supreme Court upheld a Pennsylvania law that only allowed certain stores to open on Sundays.


Did the Supreme Court Get It Right?

The reasoning of the Court in these blue law cases skirts past Establishment Clause issues by stating that these laws have a secular purpose. This argument seems questionable when it comes to closing stores on Sundays or only being able to sell certain items; after all, other religions may have different holy days that are not Sundays (Seventh Day Adventists and members of the Jewish faith both observe Saturdays as a holy day). Thus, laws prohibiting activities on Sunday appear to be made with those of the Christian faith in mind.

Even if the “secular purpose” reasoning advanced by the Court holds up in regard to Sunday closing laws, it is hard to apply that reasoning to laws prohibiting the sale of alcohol before noon on Sundays because there appears to be no real secular purpose that benefits the general public. Prohibiting alcohol sales before noon on Sundays is not the same as providing a uniform day of rest, as you can buy alcohol any other day at any other time. For that matter, you cannot buy alcohol at 11:59 AM on a Sunday in some North Carolina cities, but you can a minute later at 12:00 PM.

A disconnect quickly appears once the McGowan reasoning is applied to blue laws prohibiting the sale of alcohol on Sundays. With store closings, the public at least gains a benefit in the form of a day off from work. Prohibiting alcohol sales, on the other hand, takes away something that is otherwise legal for those over twenty-one years old and not driving. The public gains no benefit with prohibiting alcohol sales on Sunday, and it appears that most secular purpose arguments would fail. For instance, it is difficult to argue that the secular purpose is a concern for safer roads when people can drink any other day of the week or any time after noon on a Sunday.



Maybe it is time for the Supreme Court to change course, at least when it comes to blue laws relating to the regulation of alcohol sales, as these laws do not seem to fit the secular purpose requirement. If the federal government continues to leave decisions regarding blue laws up to state legislatures, then North Carolina has taken the right step in passing Senate Bill 155. By allowing the sale of alcohol before noon in North Carolina, the state is moving away from laws that appear to raise serious concerns about the separation of church and state, when it comes to the motivation for their passage. While it is still problematic that local lawmakers are deciding whether or not to pass these laws based on their religious convictions, at least the option to allow Sunday alcohol sales now exists in the state.

First Amendment Newsflash 12/18/17-1/7/18

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


Photo Credit: Courtesy of Josh Hallett


Federal Court News

A federal appeals court ruled that a Baltimore law, which required pregnancy clinics to post signs in their waiting rooms disclosing that they do not offer or refer women for abortions, violated the First Amendment.

A federal judge temporarily barred Washington, D.C. from enforcing part of a recently passed law requiring cautionary labels on “flushable” wet wipes, ruling the city’s approach probably violates the First Amendment.

A federal judge denied a company’s request to block the House Intelligence Committee from demanding bank records for 70 of the private investigative firm’s transactions in the Trump dossier investigation, ruling that the request did not violate the company’s First Amendment rights to political speech and association.

The first six Inauguration Day protestors to go to trial were acquitted by a jury on all charges of rioting and destruction of property.

A federal judge permanently barred Arizona from enforcing a law that banned a Mexican American studies programs in Tuscon schools, stating that the law violated the First Amendment by denying students the “right to receive information and ideas.”

A federal appeals court ruled that the federal trademark laws prohibiting immoral or scandalous language are unconstitutional.

A federal appeals court ruled Idaho’s “ag-gag”  ban, which prohibits recording secret videos and lying to enter factory farms for the purpose of exposing animal abuse, unconstitutional on free speech grounds.

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First Amendment Newsflash 12/4-12/17

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


Photo Credit: Courtesy of Jamie


Federal Court News

The Supreme Court takes partisan gerrymandering case to determine whether partisan gerrymandering retaliates against voters for their past support of a party’s candidate, violating the First Amendment.

A federal judge rejected a Catholic organization’s request to force metro to post its Christmas advertisements, affirming that the transit agency’s decision to ban posters featuring a religious-themed scene does not violate an organization’s First Amendment right.

Federal appellate judge is to consider Border Patrol’s right to keep observers and protesters at least 150 feet from a controversial checkpoint in southern Arizona.

Nebraska state senators and University of Nebraska officials are drafting separate proposals for new policies to referee free speech on campus.

A federal jury rejected a professor’s claim that Florida Atlantic University officials violated his constitutional rights when they fired him for stating the Sandy Hook Elementary School mass shooting was a hoax.

A federal judge temporarily blocked the Trump administration from enforcing new rules that could significantly reduce women’s access to free birth control after a state attorney general claimed the new rule violated the First Amendment for promoting employer’s religious beliefs over the constitutional rights of women.

Value Village is suing Washington State Attorney General claiming that the Attorney General’s office’s insistence on the company disclosing what percentage of its sales prices go to charity violates the company’s free speech rights.

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N.C. House Bill 330: Immunizing Drivers Who Accidentally Hit Protestors

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Photo Credit: Courtesy of McKenzie Wark

By Kaleigh Darty; Staff Member (Vol. 16)

Imagine that an unarmed young man in your hometown was shot and killed by police in the course of an arrest. Word spreads throughout the town, and soon after the incident, a video surfaces online. In a matter of hours, the young man’s name has gone viral, attached to the popular hash tag “#BlackLivesMatter.” Before you know it, people from all over the country are tweeting and posting about this man’s death and the circumstances surrounding it. In a matter of days, people near and far begin migrating to your hometown preparing for a protest.

Fast-forward: a rally is held. The young man’s family speaks out, a preacher offers words of encouragement, and then an activist speaks about the long battle between minorities and police in this country. The crowd’s mood is a mix between pain, sorrow, and anger, and so the march begins. The streets are filled with hundreds, maybe thousands, and they are all chanting, “No justice, no peace, no racist police!”

Now imagine you are a single parent, with three mouths at home to feed. Your minimum wage job is barely enough to keep the lights on anymore. Last week, your kid was sick, and the week before that your car wouldn’t start. Your manager gave you your final warning: one more late arrival and you will be out of a job. So here you are, on your way to work, and somehow you get stuck in the middle of a protest. You ask yourself, “Could this day get any worse?” By the time you arrive, madness surrounds you. Police can’t seem to get things under control, and there’s barely enough room for your car to make it down the street. So, you slow down, remain calm, and stay focused on the road. But then, out of nowhere, a protestor steps in front of your car. You collide.

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Sticks and Stones May Break my Bones, and Words [Can Sometimes] Hurt Me: Commonwealth v. Carter and Words that Kill

Plott_Blog ImageBy Jasmine Plott; Staff Member (Vol. 16)

“I thought you wanted to do this. The time is right and you’re ready, you just need to do it! You can’t keep living this way. You just need to do it like you did last time and not think about it and just do it babe. You can’t keep doing this every day.”

These were some of the last words that Michelle Carter texted to her then-boyfriend Conrad Roy III, in July 2014 as he contemplated suicide.

In the summer of 2012, while on a vacation in Florida, Carter and Roy met for the first time and entered into a relationship.  The relationship continued as the two discovered that they lived less than an hour away from each other in Massachusetts — Carter in Plainville and Roy in Matapoisett.  Despite the proximity, the two did not meet up in person, but instead regularly texted and Facebook messaged with each other to communicate.

Both teens were fighting private battles.  Roy had been struggling with severe depression, stemming from his parents’ divorce.  Carter was also fighting a battle with depression and feelings of loss after a close friend had suddenly cut Carter out of her life.  The two bonded over their struggles, and as their communications progressed, they gradually began to talk more about Roy’s depression in June 2014 and began to talk seriously about Roy’s plans to kill himself.

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First Amendment Newsflash 11/13-12/3

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.



Federal Court News

The Supreme Court will decide whether it violates the First Amendment for California to require “crisis pregnancy centers,” which counsel patients against abortion, and instead tell patients that the state offers contraception and abortion services.

The Supreme Court will hear a case that tests whether cops need a warrant to track individuals through cell tower location technology.

The Supreme Court agreed to revisit the issue of whether five million government workers can refuse to pay union fees arguing that mandatory fees violate the First Amendment.

The Supreme Court agreed to hear a case to determine whether a Colorado cake shop owner has a First Amendment right to refuse to make a wedding cake for a homosexual couple.

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Blaine Amendments–Friends or Foes of the Constitution? The Impact of Trinity Lutheran Church of Columbia v. Comer

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By Kayla Rowsey; Staff Member (Vol. 16)

Ah, yes—playgrounds. Definitely the forum we all had in mind for presenting such a divisive Establishment Clause issue to the Supreme Court. Let’s figure out how we got here.

Missouri has a clause in its state constitution, commonly known as a Blaine Amendment, which forbids the allocation of public funds to any church, religious organization/figure, or religious school/university. Additionally, it prohibits the donation of real estate and personal property by the state. It does not consider whether or not the funding would be used for a secular purpose.

In 1875, Representative James G. Blaine proposed an amendment to the U.S. Constitution with the goal of taking the Establishment Clause a step further. Specifically, the amendment sought to prohibit state funds from going to religious schools. Many believe the Anti-Catholicism movement and other nativist sentiments motivated this, as the Catholic Church taught many immigrant children.

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