The Volokh Conspiracy

What the Boston.com story appears to overlook is that workers don't face a "choice" between staying home with their families or earning double pay. If the boss tells you to work on T'giving, then you do it, or you get fired.

To enjoy our days off in Consumerland, we have to ensure that other people aren't getting those days off. Inconvenient though the blue laws were in Mississippi (where I live), I do sometimes wonder whether it wasn't wiser to keep the stores closed on Sunday.

So I can't feel too upset that on one or two days of the year, people are guaranteed the opportunity to spend time with family and friends, even if they have to do so without going shopping. The preferences of those who'd prefer to work on Christmas should be weighed against the preferences of those who wouldn't. And it appears that, in the opinion of Massachusetts' voters, the latter set of preferences wins out.

From a Robert H. Frank column "[Nobel Laureate Thomas] Schelling observed that by skating without a helmet, a player increases his team's odds of winning, perhaps because he can see and hear a little better, or more effectively intimidate opponents. The down side is that he also increases his odds of injury. If he values the higher odds of winning more than he values the extra safety, he will discard his helmet. Yet when others inevitably follow suit, the competitive balance is restored - everyone faces more risk and no one benefits. Hence the attraction of helmet rules.

As in hockey, many of the most important outcomes in life depend on relative position."

This is so important to remember as we discuss helmet laws, it's important to remember as well that hockey players routinely voted in secret ballots to retain helmets.

Why? Because it is better to have every placed in the same position else those who want strongly to "leave their helmets on" are effectively coerced to take theirs off to once again "even the game."

If every liquor store or supermarket is required to be closed on Thanksgiving, there is no competitive pressure for any store to remain open, there are no sales to lose out to the competition on. BUT as soon as one store opens, the others will feel obligated to follow suit, to prevent the lost sales, affects on customer loyality, and on. Creating blue laws and helmet laws then allow, the majority of people who want to get one day off a year, to actually take that day off in peace. And not worry about lost business or whatnot. The same goes for the employees of the same who are "coerced" into working by now seeing other people represent to management that they're willing to work on Thanksgiving.

If through the legislature supermarket owners and employees wanted to create the helmet law of "no business on Thanksgiving," why shouldn't they be able to. It's is odd kind of freedom, that forgets that allowing someone to do something ultimately coerces a majority to do something they would rather not.

Right, Mr. Lyman, federalism is so outdated in liberal eyes that liberals are working hard to make gay marriage the subject of a constitutional amendment.

(Not that many liberals wouldn't be doing this if they had the support for it, but the point is that self-professed "conservatives" aren't real into federalism either. When you're running the federal gov't, suddenly states' rights become less compelling.)

"Right, Mr. Lyman, federalism is so outdated in liberal eyes that liberals are working hard to make gay marriage the subject of a constitutional amendment."
Anderson

But marriage, unlike blue laws, has a national impact. A partial list includes marriage exemptions, military deferments, and the status of a couple when they move from one state to another. The belief that the Federal government should regulate marriage is not inconsistent with a general commitment to federalism.

MDJD2B -- I see, your "general" committment to federalism is unaffected by an ever-lengthening and, no doubt, fluid, list of exceptions, in which power will be re-assigned from the States to the Federal government. No doubt, your committment to fiscal responsibility is unaffected by record deficits, and your committment to a strong military will not preclude grinding the Army to dust in Iraq. Intellectual consistency is no virtue for a lawyer; go with semantic flexibility every time. You will go far.

Actually, the column at Boston.com does indicate that working on Thanksgiving in this case was optional.

Joel B.'s comment demonstrates one problem with "optional" work. And even if we assume that Whole Foods is run by angels, not every store is. Miss. is an at-will-employment state. If a worker doesn't want to work on Xmas, even if a law says he has to have a "choice," the employer can trump up a reason to fire him. And the kinds of workers at risk here are just the ones who can't afford to sue.

LisaMarie's comment just illustrates that where (perceived) necessities are involved, voters are more willing to enter into trade-offs.

Health professionals are, by definition, "professionals," and understand that they have to serve as needed.

Cops and prison guards take their jobs knowing full well that prisons don't close and crime doesn't cease on holidays.

As for gas stations &convenience stores, iffier. Remember in the pre-ATM days when we were all able to adapt to not being able to get cash on weekends? You went to the bank on Friday. I think we could adapt to not being able to buy gas or Coke on a Sunday.

But why should I be restricted from being able to buy a soda on a Sunday, when it isn't my Sabbath? Why should I be forbidden from working?

Where I work, my lab is open 365. I volunteer to work holidays like Christmas so that others can have their holiday, as it isn't one for me. I rather like the double-and-a-half I get, too.

"Ah yes, the "anything with a national impact" provision of the federal government's enumerated powers. Must have missed that one. The belief that the federal government should regulate marriage is not consistent with a general committment to applying the Constitution."
Cornellian

I think I was commenting on whether to AMEND the Constitution to allow regulation of marriage. As long as the amendment were done as prescribed by Article V, wouldn't a commitment to applying the Constitution be met?

But why should I be restricted from being able to buy a soda on a Sunday, when it isn't my Sabbath? Why should I be forbidden from working?

There's no particular reason why everyone shouldn't get Saturday off instead of Sunday. I'm no Establishment Clause scholar, but I think the empirical fact that more stores are closed anyway on Sunday than on any other day of the week, is a reasonable &neutral basis on which to elect Sunday as the day off.

The argument for a day off would work if no one practiced any religion.

As for why you should be restricted from working or buying a Coke, that's been addressed above. Restraints on the liberty of A are often necessary to avoid greater restraints on the liberty of B, C, and D.

I don't pretend to have proved that Sunday blue laws are actually desirable, but they aren't simply ridiculous holdovers of our Puritan past (I use "past" with misgivings).

Thanksgiving is one of, what, 11 Holidays? Of those 11, which is the most is the most 'sacred' (oops, religion).

4th of July? labor day? Memorial day? Christmas? We all sign on to a job knowing we me need to work some (or all) holidays. This is not a legal issue by any test.

Anderson-

Miss.[sic?] is an at-will-employment state. If a worker doesn't want to work on Xmas, even if a law says he has to have a "choice," the employer can trump up a reason to fire him. And the kinds of workers at risk here are just the ones who can't afford to sue.

California is also an at-will-employment state and has laws that dictate such things as employee breaks and meal periods. Just because employers can (illegally) pressure workers to overlook these laws, we haven't decide that no one can be employed in California as a means of making sure the laws are not broken. Instead, we have fairly aggressive government enforcement of these laws - certainly something the Massachusetts's legislator could implement as well (if they have not already) to minimize abuse of a "no involuntary work on Thanksgiving and Xmas" law. Surely Massachusetts has employment laws that they enforce the other 363 days of the year without shutting down commerce? (This is not to say that even a "no involuntary work on Thanksgiving and Xmas" law would be good public policy.)

This is the same sort of jurisprudence that prohibits liquor stores in my state from opening on Sundays, because -- although the law might have a religious origin -- now it's merely an historical thing.

However, Sunday beer and mixed drink sales are widely permitted, though only after church is out, because Sunday is a popular day to eat in restaurants.

Cases on this can be rare because the liquor store lobby enjoys compressing its trade into six days out of the week without losing any Sunday business to infidels.

Blue laws have been weakened or repealed in my lifetime, and I thought one day they would be entirely gone; but with resurgence in Christian clout, I am coming to doubt it.

Federalist implications? Nah. Employment law issues? Employers usually have overtime and rotation programs to keep their work forces reasonably happy through perceived fairness.

Having grown up in Canada, I'm still slightly shocked when stores are open on Sundays.

I kind of liked things before Sunday shopping. It made the day genuinely restful, since nearly everything was closed. Now, Sunday is just like every other day, and I feel like something has been lost.

LisaMarie, like I said, I'm agreed it's a problem---it's just not a unique problem.

For example, people can vote at age 18 but can't drink (legally) until age 21. By what right does the above-21 majority deprive the 18/19/20-year-old set of the ability to buy &consume alcohol?

As for Mr. Nieporent:

If few people want to shop on Thanksgiving, then few stores will open, and those that do won't need many employees. If many people want to shop on Thanksgiving, then clearly the majority wouldn't be doing something they'd rather not.

In other words, The Free Market Solves Everything? Enough said.

Also, "many" does not equal "majority."

If every liquor store or supermarket is required to be closed on Thanksgiving, there is no competitive pressure for any store to remain open, there are no sales to lose out to the competition on. BUT as soon as one store opens, the others will feel obligated to follow suit, to prevent the lost sales, affects on customer loyality, and on.

One interesting fact about Massachusetts is that the vast majority of the state is within a realtively short drive of a state border. As a result, most of us are perfectly free to shop at stores in New Hampshire or another boardering state. As a result, Massachusetts retailers are put at competitive disadvantage. Unfortunately, I can't see any offsetting advantage similar to what I saw as an undergraduate, with bars and liquor stores predominating on the Illinois side of the street and appliance stores on the Indiana side: Sunday closings vs. higher sales taxes.

I think I was commenting on whether to AMEND the Constitution to allow regulation of marriage. As long as the amendment were done as prescribed by Article V, wouldn't a commitment to applying the Constitution be met?

OK, here's your entire post.

"Right, Mr. Lyman, federalism is so outdated in liberal eyes that liberals are working hard to make gay marriage the subject of a constitutional amendment."
Anderson

But marriage, unlike blue laws, has a national impact. A partial list includes marriage exemptions, military deferments, and the status of a couple when they move from one state to another. The belief that the Federal government should regulate marriage is not inconsistent with a general commitment to federalism.

Since you claim that "liberals are working hard to make gay marriage the subject of a constitutional amendment" (first I've heard of it unless you consider Sam Brownback a liberal) are you saying that these liberals are displaying a commitment to applying the Constitution?

The second half of your post has a "national impact" and therefore, federal government regulation of marriage is not inconsistent with a commitment to federalism. Are you claiming that the Constitution as written gives the federal government the power to regulate marriage? If you're saying that the federal government would have the power to regulate marriage if the Constitution were amended to say so, what difference would it make at that point whether marriage had a national impact or not? If the Constitution is amended to say regulation of marriage is within federal jurisdiction, then it's within federal jurisdiction, whether or not it has a national impact.

I note in passing that this "national impact" idea of federal jurisdiction is exactly what conservatives have been complaining about from FDR until the election of George Bush, at which point so-called conservatives decided this "federal government runs everything" approach to federalism (which is what "national impact" amounts to) was actually a good idea after all.

I think I missed the point where this discussion went from "Gee, this is a silly law, I think they should repeal it," to "The federal government should make them repeal it." In fact, I don't understand what the federal government is doing in this discussion at all. It's as ridiculous to ask the federal government to override this law as it is to have this law in the first place, more ridiculous if you think this law is good.

Perhaps if the people of Massachusetts passed a referendum restricting the days the legislature could pass laws...

I don't know how to put quotes in italics, so I put Anderson's comment, to which I was responding, in "quote marks" after cutting and pasting. You misconstrued them as my own product. It was he, not I, who said that liberals were trying to amend the Constitution-- I take no responsibility for that error, as I only wrote the second paragraph.

When part of the Constitution no longer serves our needs, or needs to be clarified, we amend it. We thus abolished slavery, allowed a progressive income tax, gave women the franchise on a national basis, and provided for election of the senate by direct suffrage.

I differentiated blue laws from regulation of marriage on the grounds that the latter had a national impact. I don't know if this is liberal or conservative, but it seems like common sense to assert that if what they do in Oregon has asignificant impact on the folks in Maine, then the latter should have a say in regulating it. If what they do in Oregon has a minimal impact, then the folks in Maine should butt out. This is the appropriate end result. If this can be achieved through constitutional interpretation, then let it be. If not, then the Constitution should be amended to achieve a just situation. I am not a lawyer, and make no claims as to whether the Constitution, as currently written, allows Federal regulation of marriage. What I state is that it is appropriate that the national government regulate marriage to the extent that it has a national impact.

I pasted the quotes to which I refer following this comment, rather than preceeding, to avoid confusion-- I still don't know how to put quotes in a different typeface than my own comments.

""Right, Mr. Lyman, federalism is so outdated in liberal eyes that liberals are working hard to make gay marriage the subject of a constitutional amendment." "
Anderson

"But marriage, unlike blue laws, has a national impact. A partial list includes marriage exemptions, military deferments, and the status of a couple when they move from one state to another. The belief that the Federal government should regulate marriage is not inconsistent with a general commitment to federalism."
MSJD2B

And Cornellian follows:

"Since you claim that "liberals are working hard to make gay marriage the subject of a constitutional amendment" (first I've heard of it unless you consider Sam Brownback a liberal) are you saying that these liberals are displaying a commitment to applying the Constitution?

The second half of your post has a "national impact" and therefore, federal government regulation of marriage is not inconsistent with a commitment to federalism. Are you claiming that the Constitution as written gives the federal government the power to regulate marriage? If you're saying that the federal government would have the power to regulate marriage if the Constitution were amended to say so, what difference would it make at that point whether marriage had a national impact or not? If the Constitution is amended to say regulation of marriage is within federal jurisdiction, then it's within federal jurisdiction, whether or not it has a national impact.

I note in passing that this "national impact" idea of federal jurisdiction is exactly what conservatives have been complaining about from FDR until the election of George Bush, at which point so-called conservatives decided this "federal government runs everything" approach to federalism (which is what "national impact" amounts to) was actually a good idea after all.

Just want to clarify one thing. Say I'm a single mom living paycheck to paycheck, and I take a job at a nursing home, an institution I know runs 24 hours a day, 7 days a week. If my employer tells me my job requires night and holiday shifts, can I claim it's coercion? Or should my employer separate employees into groups, such as the childless and those with children, or the living-paycheck-to-paycheck and the economically better off, and assign undesirable shifts only to the better off and the childless, who are supposedly less vulnerable to coercion?

Or maybe it should be the reverse because poor people with children need the money more than affluent people with no children?

I don't see any coercion argument, though I suppose you might be able to shoehorn a Title VII argument in there somewhere.

Technical point: When you post your comment there's an "I" button then you can press that will insert " "; just paste your quote between those two markers and it will appear in italics.

Since you indicate you're not a lawyer and unfamiliar with constitutional law, your comments are less suprising. I suspect a great number of laypeople have the sense of federalism that you do. I suppose that marks the ultimate triumph of the FDR school of thought.

Here's the problem: The Constitution enacts a federal government of limited powers, i.e. the federal government (in theory) can regulate only those things allocated to it by the Constitution, such as the military and the post office. One of those limited powers is authority over interstate commerce (not commerce in general, only interstate commerce). There is nothing explicit in the text of the Constitution that provides for federal government authority to do a vast range of things that the modern federal government in fact does do. A very large percentage of this "extra stuff" is purportedly supported by the interstate commerce clause of the constitution. Thus, one farmer growing wheat for his own use is said to be within the federal government's authority to regulate because all farmers growing wheat for their own use everywhere in the country would have a national impact (decreased demand on commercial producers and the like). See Wickard v. Filburn. More recently, growing marijuana in your own backyard for your own personal use is within federal authority because it has a national impact too - it impacts on the federal government's ability to prohibit the interstate trafficking of marijuana. See Raich v. Ashcroft.

A long line of commerce clause cases since FDR's supreme court appointments have brought us to the status quo in which virtually nothing is beyond the federal government's ability to regulate. There is, for example, absolutely no question that the federal government could pass a law tomorrow regulating when stores may open and when they must close, and such a law would be upheld as a valid exercise of the interstate commerce clause since the hours during which stores in the U.S. operate has a national impact on the economy. The only thing that stops the U.S. government from doing so is the likely negative political reaction and the fact that federal politicians likely (and correctly) see no political gain from intruding on that issue. If they thought such a law was a vote winner, they'd be holding hearings on it in D.C. tomorrow.

This line of cases has long been the subject of conservative criticism in that it effectively gives the U.S. federal government unlimited authority to regulate virtually anything, thus abandoning any commitment to federalism. There's a legal aspect to that criticism (fidelity to the Constitution) as well as a political aspect (the theory that states will do a better job at certain things, that an overly powerful federal government is not a good idea, and that there should be room for individual state by state experimentation).

Hence your comment that the federal government should have authority to regulate things that have a national impact is essentially the antithesis of what conservatives have been saying from FDR up to (but not including) George W. Bush. Amending the constitution to provide that the federal government can regulate anything with a "national impact" would effectively constitutionalize the Wickard v. Filburn line of cases and leave the federal government with explicit authority to regulate nearly everything. When you state this view of federalism and combine it with a state that this view displays a "commitment to federalism" you'll get a very surprised reaction on this blog, as it has an inordinate percentage of people who will see a general "national impact" test as the very opposite of a committment to federalism.

I made the point about George Bush above because he, unlike his Republican predecessors is apparently a enthusiastic fan of unlimited federal government authority to regulate anything. It's his administration that litigated the federal government's position in Raich v. Ashcroft, not to mention a (somewhat) similar attempt to pre-empt Oregon's assisted suicide law and, of course, gave us the high water mark of unprincipled federal grasping: the Terry Shiavo law.

When part of the Constitution no longer serves our needs, or needs to be clarified, we amend it. We thus abolished slavery, allowed a progressive income tax, gave women the franchise on a national basis, and provided for election of the senate by direct suffrage.

I differentiated blue laws from regulation of marriage on the grounds that the latter had a national impact. I don't know if this is liberal or conservative, but it seems like common sense to assert that if what they do in Oregon has asignificant impact on the folks in Maine, then the latter should have a say in regulating it. If what they do in Oregon has a minimal impact, then the folks in Maine should butt out. This is the appropriate end result. If this can be achieved through constitutional interpretation, then let it be. If not, then the Constitution should be amended to achieve a just situation. I am not a lawyer, and make no claims as to whether the Constitution, as currently written, allows Federal regulation of marriage. What I state is that it is appropriate that the national government regulate marriage to the extent that it has a national impact.

"The relationship between an employer and an employee is a voluntary one. The employee is, in a free society, not "forced" to work any more than the employer is "forced" to pay money."

It's nice to see that 19th century fantasies of economic libertarianism still have a place in our discourse. I, personally, enjoy the "freedom" not to work, to lose my health care, to go on welfare or starve (and my family with me), or be forced by my employer to do whatever they want (I see no one defended the ability of MS employers to fire their workers for seeking workman's comp). Perhaps I might suggest that employers and employees stand in places of different strength, and that those differences are not irrelevant?

"There is no basis for selectively claiming that work becomes slavery on the fourth Thursday in November, but can be required on other days."

It is the history and traditions of our nation that makes the difference. Haven't you read your Scalia? Arguing that Thanksigiving is no different than any other day might might be a good abstract logical argument, but is not one that has any grounding in how the vast majority of Americans think or live their lives. Tradition (and common sense) also limits this principle to some of the more absurd hypotheticals folks are floating in the thread above.

Should have mentioned: I'm a liberal blogger/blawgger who hates the blue laws.

This line of cases has long been the subject of conservative criticism in that it effectively gives the U.S. federal government unlimited authority to regulate virtually anything, thus abandoning any commitment to federalism. There's a legal aspect to that criticism (fidelity to the Constitution) as well as a political aspect (the theory that states will do a better job at certain things, that an overly powerful federal government is not a good idea, and that there should be room for individual state by state experimentation).

I'll now confess to having been a bit disingenuous. I am an MD who has gone back to law school, and am looking forward to taking a final exam in Constitutional Law at the end of the semester. Writing on the same site as eminent professors of law encourages me to be humble about my legal powers. But your statement of the issue was very lucid, and I tremendously enjoyed reading it.

My own philosophy is intermediate between yours and that of the people who gave us Wickard. I do not favor a constitutional amendment, though, to allow Federal regulation of almost anything. I am merely putting forth the narrow proposition that the constitution should be amended or construed (and I don't se how it could be construed-- I certainly hope not by the Commerce Clause-- to allow the Federal government to regulate marriage sufficiently to prevent anomalies like the following hypothetical one. Two gay Nebraskans are not allowed to marry, while Nebraska courts must award award alimony to gay couples married in Massachusetts, or probate wills of survivors of such marriage. The Full Faith and Credit Clause would seem to lead to this result. Or allow gay couples in MA but not NE claim income tax and draft exemptions.

This was incidental to what I think was an agreement with you that blue laws should be considered on a state-by-state basis. The limited practical impact of blue laws seems more like that of guns near schools or penalties for domestic violence that like the broad practical impact of wages and hours issues originally regulated under the Commerce Clause, where local policies had significant out-of-state economic impact. Again, my bias is very pragmatic-- national effect/national regulation; local effect/local regulation. I appreciate that this creates a slippery slope resulting in aggregation arguments that lead to extreme results, as in Raich and Wickard.

Sheesh, this just goes to show how far economic liberty has sunk in this country, and I say that although my politics are pretty far to the left and I'm all in favor of protecting workers. I'm not in favor of the unbridled freedom of contract of the Lochner era, far from it, but I do think we ought not to dismiss economic freedom at the slightest hint of a state interest in interfering with it.

Even a store staffed solely by its owner(s) may not legally open under the blue laws. The mom and pop who want to open their store to make some extra profit are out of luck. The big chain is not going to lose business to the hardy sole owner of a small corner store. There are many better ways to ensure workers get appropriate days off than requiring everyone to close on a certain day. Opening or closing should be up to the business period. (I would include bars selling liquor in this, although admittedly the state has a different interest there.)

If the state's interest is in ensuring that all workers get a particular day off--Thanksgiving or Christmas or Sunday--then that strikes me as a religious law of questionable constitutional validity. The very first law review I ever read had an article on the constitutionality of the blue laws. It was in a Harvarrd Law Review of late 1965, if memory serves. At the time I didn't even know what a law review was--I was then a 1L who went to law school pretty much because I left it too late to apply for anything else--but I think it tried to make the case that these laws violated the establishment clause. I thought the blue laws had faded out long ago.

I'll now confess to having been a bit disingenuous. I am an MD who has gone back to law school, and am looking forward to taking a final exam in Constitutional Law at the end of the semester.

We now pause for a suitable moment of shocked, "grass is always greener" silence while we ponder why someone who is already a doctor would want to become a lawyer. I seem to recall hearing somewhere that lawyers wish they had gone to medical school, while doctors wish they had gone to law school so I suppose you'll soon be able to tell us which side really has greener grass.

My own philosophy is intermediate between yours and that of the people who gave us Wickard. I do not favor a constitutional amendment, though, to allow Federal regulation of almost anything. I am merely putting forth the narrow proposition that the constitution should be amended or construed (and I don't se how it could be construed-- I certainly hope not by the Commerce Clause-- to allow the Federal government to regulate marriage sufficiently to prevent anomalies like the following hypothetical one. Two gay Nebraskans are not allowed to marry, while Nebraska courts must award award alimony to gay couples married in Massachusetts, or probate wills of survivors of such marriage. The Full Faith and Credit Clause would seem to lead to this result. Or allow gay couples in MA but not NE claim income tax and draft exemptions.

Our federal system already copes quite well with such anomalies. Different states have different minimum ages for marriage, and different consanguinity requirements (basically whether cousins can marry). Nothing in FF&C mandates uniform marriage laws. A marriage between first cousins may be unlawful in one state but perfectly legal in another. Ditto a marriage between two fifteen year olds. None of these anomalies need cause any great difficulty in a federal system. So what happens when our married fifteen year olds move to a state where they are below the legal age of marriage? What happens if they get divorced and the wife tries to enforce an alimony order against the husband, who has moved to a state where you have to be 17 to marry? I have no idea - I'm no expert in family law, but I do know that courts deal with these kinds of situations every day and that FF&C doesn't mandate nationally uniform marriage laws. A good sign that courts cope very well with these types of situations is the fact that you hardly ever hear about them.

Full faith and credit doesn't require that a marriage legal in one state be recognized in another. You may recall that Loving v. Virginia, which struck down a ban on interracial marriage was an out of state marriage. The interracial marriage between Mr. and Mrs. Loving was legal where they were married, but illegal in Virginia. If FF&C gave them an automatic win in that situation, they'd never need to get to the equal protection argument, but the issue never even came up. FF&C is much narrower than the current crop of advocates for a federal amendment banning same sex marriage would have you believe.

Suppose an amendment were passed authorizing the federal government to "regulate marriage?" Do you think that would stop with a law barring same sex couples from marrying? Wouldn't this also include the authority to regulate division of property on divorce? Child custody? Inheritance rules? Do you really want the federal government in charge of all that?

think people are missing one point. The Taxachusetts blue laws date back to the 1660's. They were religious in nature when passed by a colony ruled by a rather severe religious sect. They predate the federal constitution, the American Revolution, the constitution of the state and the establishment of the commonwealth. They were given the same status as English common law and adopted with the post-declaration constitution of the state. They're religious rules that have never been enacted legally under the state's constitution.

I don't follow exactly what you're saying here.

1) date back to the 1660's - got that
2) religious in nature - got that
3) predate federal constitution etc. - got that
4) given the same status as English common law and adopted with the post-declaration constitution of the state - I think I get this. As I understand it (and I'm not a legal historian) states would have had to have had some founding document, statute or constitutional provision incorporating English common law as it existed at the time of enactment so that the state wouldn't be a legal vacuum after independence.
5) religious rules that have never been enacted legally under the state's constitution - here's the part I don't get. Of course such rules could not have been enacted in accordance with some specific constitutional provision if they pre-date the constitution, but assuming #4 above, how does this lead to the conclusion that such rules "have never been enacted legally?" Wouldn't that appy to the whole of the common law?

Rewrite: That the behavior of others worsens your position is no violation of liberty (so long as it does not include coercion). You, a man, and one woman exist, and the other man marries the other woman. Do you have any right to prevent this marriage? What if the woman decided not to marry at all?