It’s time for some spring cleaning

Lots of state laws are outdated, should go

I DON’T KNOW WHEN IT HAPPENED, but I have become a real neatness freak in my old age and I have a clean garage to prove it.  Gone are old hoses, half-empty bottles of brake fluid, and spray cans of 1980s-era carburetor cleaner.  But my recent case of “neatomania” does not stop with my garage.

Do you know how many obsolete, unenforceable, arcane, and unconstitutional laws are contained in the Massachusetts General Laws?  I cannot even begin to guess.  But I think the time has come for the Legislature to do some spring cleaning.  Cataloging and possibly repealing some of the statutes may be a great place to start.

One of my favorites is G.L. c. 71, sec. 31.  It requires that:

[a] portion of the Bible shall be read daily in the public schools, without written note or oral comment; but a pupil whose parent or guardian informs the teacher in writing that he has conscientious scruples against it, shall not be required to read from any particular version, or to take any personal part in the reading. The school committee shall not purchase or use in the public schools school books favoring the tenets of any particular religious sect.

The statute was first passed in 1826, and was last amended in 1902.  Clearly this requirement was struck down by the US Supreme Court in the case of Engel v. Vitale in 1962.  But it is still on the books in Massachusetts. It’s unenforceable and unconstitutional.  Repeal it!

G.L. c. 136, sec. 2 prohibits dancing on a Sunday. Whoever on Sunday is present at or engages in dancing, except folk or square dancing, or any game, sport, fair, exposition, play, entertainment or public diversion for which a charge in the form of the payment or collection of money or other valuable consideration is made for the privilege of being present thereat or engaging therein, and for which a license has not been granted under the provisions of section two of chapter one hundred and twenty-eight A or as provided in section four, shall be punished by a fine of not more than fifty dollars.

Does this preclude dancing at a wedding reception?  Is the wedding gift considered “the payment or collection of money?”  Are the guests subject to a fine for merely attending or are they prohibited from dancing if they do?  Square dancing at a wedding reception – when your partner is halfway across the room – is allowable, but a tango is not, unless the dancing takes place at a Saturday wedding, then everything is fine. Repeal it!

G.L. c. 140, sec. 185I, passed by the Legislature in 1963, regulates the licensing of fortune tellers.  Imagine what the “road test” for this license might look like.  I did call a local town clerk’s office and asked about the reason for the statute and their reply was “we want to protect the public by making sure that only well-qualified individuals tell fortunes.”  I suggested that the clerk have someone read that statement aloud to them and see how much sense it makes.  But perhaps given certain public safety concerns, we should let that one stand.

Massachusetts General Laws, c. 264, sec. 9, enacted in 1917, makes the playing of the Star Spangled Banner as part of a patriotic medley illegal.

Whoever plays, sings, or renders the “Star Spangled Banner” in any public place, theatre, motion picture hall, restaurant or café, or at any public entertainment, other than as a whole and separate composition or number, without embellishment or addition in the way of national or other melodies, or whoever plays, sings, or renders the “Star Spangled Banner,” or any part thereof, as dance music, as an exit march or as a part of a medley of any kind, shall be punished by a fine of not more than one hundred dollars.

Imagine asking a state trooper, at the annual Fourth of July concert on the Esplanade to arrest and fine Keith Lockhart for adulterating the national anthem?  I suspect a visit to Bridgewater State Hospital for a period of observation might be in the future for any complainant on this statute.

G.L. c. 264, sec. 17, enacted in 1951, makes membership in “a subversive organization…  unlawful.”  Section 16A of that same act declares “[t]he Communist Party… to be a subversive organization.”  Looks like a freedom of association issue here.

Another one of my favorites is G.L. c. 265, sec. 3, passed in 1836, establishes criminal liability for the death of an individual participating in a duel, where the duel took place outside Massachusetts but the participant died inside of Massachusetts. So you can be criinally prosecuted in the state in which the duel occurred and in Massachusetts if the other participant had the misfortune to die here?  Can you say “double jeopardy?”

G.L. c. 270, sec. 14, provides that

Whoever expectorates or spits upon any public sidewalk, or upon any place used exclusively or principally by pedestrians, or, except in receptacles provided for the purpose, in or upon any part of any city or town hall, any court house or court room, any public library or museum, any church or theatre, any lecture or music hall, any mill or factory, any hall of any tenement building occupied by five or more families, any school building, any ferry boat or steamboat, any railroad car or elevated railroad car, except a smoking car, any street railway car, any railroad or railway station or waiting room, or on any track, platform or sidewalk connected therewith, and included within the limits thereof, shall be punished by a fine of not more than twenty dollars.

This law was enacted in 1906, was amended in 1907, and further amended in 1908.  In addition, c. 270, sec. 15 allows for the arrest of an “expectorator” without a warrant. Indeed.  I would suggest that the Commonwealth and local governments have been negligent by not placing spittoons in the locations specified in the statute.

An 1853 statute, c. 271, sec. 6, states that: Whoever, during or within twelve hours of the time of holding a cattle show, military muster or public gathering, within one mile of the place thereof, practices or engages in any gambling or unlawful game, shall forfeit not more than twenty dollars. If discovered in the act, he may be arrested without a warrant by any sheriff, deputy sheriff, constable or any officer qualified to serve criminal process, and held in custody, in jail or otherwise, for not more than twenty-four hours, Sunday and legal holidays excepted, until a complaint may be made against him for such offence.

Does this mean that any National Guard armories or other military reservations within a mile of Plainridge Park or the Wynn Resort in Everett or MGM Springfield must be relocated?  Just out of curiosity, how far is it, as the crow flies, from Wynn Boston Harbor to the USS Constitution in the Charlestown Navy Yard?

G.L. c. 271, sec. 50, passed in 1973, makes plagiarism illegal and punishable by a fine and or imprisonment for up to six months!  I usually include the text of this statute in the syllabus to all of the courses that I teach.  Ignorance of the law is no excuse!

And I’ve saved the best for last….  In 1697, the colonial Legislature passed c. 272, sec. 36 (actually St. 1697, c. 20), which makes blasphemy a crime.

Whoever wilfully (sic.) blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.

In some cases, these laws were quite forward thinking, but should be added to some more contemporary omnibus regulatory statutes.  One such example is M.G.L. c. 64K, sec. 4 which requires that “[n]o dealer shall possess any marihuana (sic.) or controlled substance upon which a tax is imposed by section eight unless the tax has been paid on the marihuana or controlled substance as evidenced by a stamp or other official indicia.”  Who knew?  The statute was passed in 1993, but apparently the Massachusetts Department of Revenue was unaware of this provision.  Every time I would call them to get a copy of the Marihuana (sic.) tax form, they would always hang up on me.

Meet the Author

Paul DeBole

Assistant professor of political science, Lasell College
These laws are still on the books.  So doesn’t it make sense to – at the very least – start cataloging and reviewing these arcane statutes, and at least have a conversation about whether or not to repeal them?  At least the legislative hearings would be good theater.

Paul L. DeBole is an assistant professor of political science at Lasell College in Newton.