Outdated state laws hard to repeal

Legislature content to let them stay on books

A RECENT POST by Professor Paul DeBole of Lasell College highlighted several archaic, unenforced, and/or unconstitutional state laws that have outlived their time and should be repealed. He concluded we should “at least have a conversation about whether or not to repeal them. At least the legislative hearings would be good theater.”

In fact, there are at least six pending bills to repeal different combinations of such laws: S.784, S.805, H.949, H.950, H.977, and H.3123. These bills, taken together, would decriminalize blasphemy; fornication; adultery; being a tramp, vagrant or vagabond; the sale, gift, or manufacture of sex toys; and other crimes that linger on the books. Similar bills have been proposed before, but they get kicked from one legislative session to the next.

The Joint Committee on the Judiciary did hold a public hearing that included these bills on July 18, 2017. I submitted a written statement to support these bills, and attended much of the hearing. But the hearing covered about 60 crime-related bills, and was dominated by firearms and trafficking bills. No one spoke on archaic laws, although I would have if called in the first three hours.  It was not good theater.

When I emailed my statement to all members of the committee, a key member expressed support for repeal. However, an email I have from a legislative staffer a few years ago indicated there was not much support to do anything, because there was no upside and only downside in how repeal might be portrayed (not the exact wording, but the implication).

I submit there are good reasons to repeal, including positive symbolism in some cases, reducing the risk of selective enforcement, and a principle that unenforced or unconstitutional criminal laws laws tarnish the rule of law.

The blasphemy law (Ch. 272, Sect. 36) got me interested in this issue. It is clearly an unconstitutional viewpoint restriction, and its 17th Century language is humorous. But for Asia Bibi, a woman who has been on death row in Pakistan since 2010 for alleged blasphemy, and for others punished for blasphemy, heresy, or apostasy, such laws are deadly serious. We can send a symbolic message in support of international efforts to repeal such laws by repealing our own law and making a statement about the issue.

Laws criminalizing fornication, adultery, the “abominable and detestable crime against nature,” and “lewd and lascivious acts” (Ch. 272, Sect. 14, 18, 34, and 35) are likely unconstitutional as consensual acts between adults (see Lawrence v. Texas). Buy maybe not. A 1983 Massachusetts case upheld a conviction for adultery despite Supreme Court precedents upholding a right to privacy.

While the adultery law is not enforced, and might be unconstitutional, a prosecutor could try to enforce selectively – maybe against a prominent supporter of Sen. Elizabeth Warren or against an active Donald Trump supporter. Even if the law were ultimately found unconstitutional, a criminal trial could create embarrassment and expense for the accused. Other laws not expressly or obviously unconstitutional also carry the risk of selective enforcement.

Parts of laws against being a tramp, vagrant, and vagabond (Ch. 272, Sections 63-69) have been ruled unconstitutional. Such laws have a particularly negative history in the post-reconstruction South, where they were used to create a pool of virtual African-American slave labor. These laws have historically been enforced selectively against “undesirable” people.

Other state laws, like one outlawing contraceptives unless provided by prescription to a marriedf woman (parts of Ch. 272, Sect. 21 and 21A), have been explicitly held unconstitutional. And there are others that have outlived their time, such as laws declaring the Communist Party a subversive organization, and laws mandating the reading of Bible verses in public schools.

Meet the Author

Michael Diener

Chair, Needham Democratic Town Committee
Unless the Legislature hopes for the US Supreme Court and/or the Massachusetts Supreme Judicial Court to reverse itself so that a law can then be enforced at the state level, it should be repealed. The ability to criminalize activity and to deprive people of liberty – by incarceration or probation – or property – through fines or forfeiture – is an awesome one that should be as narrow and limited as needed.

Michael Diener is an attorney, a resident of Needham, and the chair of the Needham Democratic Town Committee.