Moldy justice

Archaic laws are often funny, but they’re no laughing matter
By HARVEY SILVERGLATE AND JAN WOLFE  |  October 12, 2007

071012_freedom_main

Rope, not dope
According to the Birmingham Post-Herald, then-pregnant small-business owner Angela Guilford and her husband were arrested in 1997 on drug-trafficking charges because they sold hemp clothing and hemp industrial products, which are still considered marijuana according to an archaic Alabama law dating back more than a century. Only after a national outpouring of opposition did state prosecutors drop the drug-trafficking charges, which could have resulted in three years in prison and $125,000 in fines.
A California law prohibits a woman from driving while wearing a house coat. In Kansas, it’s illegal to shoot at rabbits from a motorboat. We’ve all had a laugh over some bizarre, outdated statutes that, through neglect, remain on the books. But a recent bill making its way through the Massachusetts State House demonstrates that these vestiges of a more paternalistic legal era are not always a laughing matter.

By failing to decommission un-needed laws — even ones that are clearly unconstitutional — legislators inadvertently create an environment that threatens everyone’s liberty. True, it’s unlikely that anyone would actually be prosecuted for, say, spitting on the sidewalk, but, if that law’s technically in force, an overzealous police officer not properly versed in citizens’ rights could arrest the slobbering scofflaw — especially if the officer sought to punish the expectorator for other unsavory behavior.

In light of this precarious state of affairs, State Representative Byron Rushing (D-South End), a tireless civil-liberties advocate, has proposed a bill that would repeal 20 such antiquated criminal statutes from the Massachusetts criminal code. The laws in question criminalize common behavior such as adultery, blasphemy, fornication (defined as sex between non-married persons), spitting in public, tattooing without a medical license, advertising abortions, voting Communist, vagrancy, and visiting a place where food or drink is sold for the purpose of “immoral solicitation or bargaining.”

Rushing’s bill, which has about 30 co-sponsors and the endorsement of the American Civil Liberties Union (ACLU) of Massachusetts, will be considered by the Judiciary Committee at a currently unscheduled hearing later this year.

Many, if not all, of the archaic laws Rushing seeks to repeal are clearly unconstitutional. The various bans on providing abortion services, for instance, should have been struck in 1973, after the passage of Roe v. Wade. The law against blasphemy has been undermined by an entire century of American free-speech jurisprudence. And legislators should have repealed the Commonwealth’s fornication law after the Supreme Judicial Court found it of “doubtful constitutionality, at least as applied to the private, consensual conduct of persons over the age of consent” back in 1994 (Attorney General v. Desilets), or after the US Supreme Court found Texas’s sodomy law to be unconstitutional in the landmark case of Lawrence v. Texas (2003).

If these anachronistic laws were to be universally enforced by the courts, most of the country would be behind bars — thankfully, as it stands, prosecutions of such “crimes” are few and far between. They do, however, happen.

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