Antiquated state laws stir modern-day worry
If you are performing “The Star-Spangled Banner’’ at a public event, think twice before using it as dance music or as part of a medley. Deviation from the script can mean a $100 fine.
Think twice, too, about cursing at sporting events. A prohibition took effect in 1963, when both Red Sox and Patriots fans had little reason to cheer. And steer clear of more serious offenses, such as joining a subversive organization, committing blasphemy, or having consensual sex with another adult outside marriage. All could land you in prison.
Such obscure Massachusetts laws and the fact that they are still on the books, often provoke humor. But to some, outmoded statutes are no laughing matter.
A case in point: If the US Supreme Court were to overturn Roe v. Wade, its 1973 decision that legalized abortion, then state laws would apply. And in Massachusetts, laws dating to the mid-19th century outlaw abortions, although in 1981 the Massachusetts Supreme Judicial Court ruled that the state constitution protects the right to abortion.
For several years, groups such as the American Civil Liberties Union of Massachusetts and Planned Parenthood have sought to have some of these statutes, especially those that criminalize abortion, repealed. But to no avail. They will try again in the new legislative session, which began this week.
“It seems as though there hasn’t been any appetite to do anything about this,” Senator Cynthia Stone Creem, a Newton Democrat, said. “Some of my colleagues fear they’ll offend people by going after these laws because many of them deal with morality.”
Representative Byron Rushing, a Boston Democrat who along with Creem has cosponsored the repeal legislation, said the notion that antiquated laws are not enforced was proved wrong by Governor Mitt Romney after the 2003 Massachusetts Supreme Judicial Court decision that legalized same-sex marriage.
In 2004, Romney ordered local officials not to officiate at same-sex weddings for out-of-state couples unless they pledged to relocate to Massachusetts. He cited a 1913 law declaring that nonresidents could not marry in Massachusetts if the marriage would not be legal in their home states. The law was passed when many states were intent on preventing interracial marriages.
Attorney General Thomas Reilly sided with Romney. In 2008, the Legislature repealed the 1913 law with the backing of Governor Deval Patrick.
The principal target for the repeal-minded legislators are 19th-century laws that criminalize abortion. Under the heading, “Procuring miscarriage,’’ three statutes that became law in 1845 and 1847 make it illegal for anyone to perform an abortion, provide information about the procedure, or provide the tools or drugs needed to facilitate it. The laws provide for prison terms of up to seven years.
Eric Scheidler, executive director of the Washington-based Pro-Life Action League, said President Obama’s reelection makes it unlikely that the 1973 decision will be overturned anytime soon. But even without the addition to the court of another conservative justice, the present court remains narrowly divided on the issue.
Massachusetts is not alone in retaining laws that the 1973 high court decision overturned. Restrictive abortion laws remain on the books in the District of Columbia and 15 other states, according to a Michigan State University survey.
In Massachusetts, there would be some legal bulwark if Roe v. Wade were to be reversed. In 1981, the Supreme Judicial Court ruled unconstitutional a state law that placed restrictions on the use of state funds to pay for abortions. It ruled that the right to abortion was protected by the state constitution, although some legal scholars do not consider the decision to be ironclad.
As recently as 2007, however, the Essex district attorney’s office used the 1845 law to criminally charge a Lawrence woman who took an antiulcer drug to induce a third-trimester abortion. The aborted girl died four days later. But the use of the statute was never challenged because the charge was dropped when the woman agreed to pretrial probation.
The repeal legislation also includes an 1879 statute that criminalizes the provision of contraceptives to anyone but married couples who see a physician. Jettisoning that law would appear to be largely symbolic, since state laws banning contraceptives were swept away by US Supreme Court decisions in 1965 and 1972.
No one would expect that using profanity at a sporting event could subject them to a $50 fine, but under Massachusetts law, that is precisely what could happen, though jurists would probably find the statute and another that penalizes blasphemy unconstitutional on First Amendment grounds.
Even so, there is nothing to prevent police from using such laws to make life difficult — and expensive — for people they consider to be disruptive, according to Harvey A. Silverglate, a civil rights lawyer who is a board member of the American Civil Liberties Union of Massachusetts.
“If a cop wants to get somebody, they can charge them for blasphemy, for instance, and it’ll be thrown out later, but to get to that point is very expensive,’’ Silverglate said in an interview. ‘’The statutes you see on the books are used more for abuse than use.”
To many, spitting on a sidewalk, which carries a $20 fine, or tweaking “The Star-Spangled Banner” in public, would also hardly raise an eyebrow, let alone seem criminal. The law on spitting in public hit the books in 1906. The statute on “The Star-Spangled Banner,” which calls for a fine of up to $100, was written in 1917. Neither has been repealed.
“There are dangers to having old and moldy and sometimes laughable laws on the books,’’ said Ann Lambert, an ACLU lawyer. “Those laws send messages that people can still be charged. It seems irresponsible not to do the housekeeping and have them repealed.’’
Silverglate said there is a tendency among legislatures, both state and federal, to leave statutes like these on the books.
“This isn’t just a Massachusetts phenomenon, but since it’s such an old state, some of the statutes go back to archaic times,” Silverglate said. “I think we have a worse problem than elsewhere, not because we’re worse people or have harassing police, but because we have so many of these . . . laws, some of them going back to the 17th century.”
Many other states have antiquated laws. In Delaware, for instance, it is illegal to show an R-rated movie at a drive-in theater. In Georgia, it is illegal to live on a boat for more than 30 days in a calendar year. And in Tennessee, it is illegal to carry a skunk into the state.
Massachusetts is not the only state that still outlaws fornication (1692), oral and anal sex (1887), and belonging to subversive organizations (1951). In 1951, the state passed a series of anti-Communism laws. Among them was a statute declaring the Communist Party a subversive organization and a law calling for up to one year imprisonment of people who allowed the Communist Party to hold functions in their auditorium, hall, or building.
“We have not made any real effort to repeal these laws, though it’s certainly something that ought to be done,” said Roberta Wood, secretary-
treasurer of the Communist Party USA. “We don’t know of any cases where these laws have actually been enforced. I don’t think there’s been much judicial action against the free speech of Communists since the McCarthy era.”
According to Wood, there are similar anti-Communist laws that have been left undisturbed in more than a dozen other states.
Among the other targets of repeal by the two lawmakers is a 1762 law on adultery that calls for up to three years of imprisonment for married people who have sexual intercourse with someone who is not their spouse. The 1692 law against fornication, sexual intercourse between an unmarried man and woman, calls for a prison term of up to three months.
Left on the books, some of the laws may place people unwittingly in criminal jeopardy.
Boston lawyer Michael J. McCormack said he once advised a client who was the third party in a civil divorce action not to admit to adultery.
“I said to him, if you get up there, testify, and admit to having an affair, you can be in trouble because adultery is still a crime in Massachusetts,” said McCormack, a former prosecutor. “He was dumbfounded.”
Ultimately, McCormack’s client invoked his constitutional right against self-incrimination and did not testify.
In addition to Carden and Lee, this article was reported by Meg Heckman, the graduate assistant in a seminar in investigative reporting at Northeastern University. Their work was overseen by journalism professor Walter V. Robinson, a former editor of the Globe Spotlight Team. He can be reached at firstname.lastname@example.org. Confidential messages can be left at 617-929-3334.