Archaic Laws 1: Where Don't Meets Duh

Some outdated Massachusetts laws are amusing, some quaint, and some both spiteful and harmful. In the latter category, we think particularly of marriage laws:

• Residual statutes that the state Senate did not or would not align with the Goodridge decision. That has left us with the vicious anti-marriage-equality petitions and the current amendment.
• The twin 1913 race-based laws dusted off by then Gov. Willard Mitt Romney with the help of then AG Tom Reilly. these keep out-of-state homosexual couples from marrying here and spreading our loving poison of same-sex marriage like lavender Johnny Appleseeds.

The trivial and significant versions are on display again. Last year, it was Senator Cynthia S. Creem with her bill 938, an omnibus to sweep these legislative dust kitties from under the furniture of government. This time around, Rep. Byron Rushing has filed a bill with even more arcane and risible examples of legislators gone wild. (His bill doesn't seem to be on the state site yet.)

Creem's bill ended up languishing in limbo after being referred to the Judiciary Committee. We suspect that Rushing has the profile and personality to move his version to the floor. Because it will apparently include the 1913 disgraces, it may be controversial even in this century.

Rushing seems too savvy to touch the same-sex marriage clarifications while the anti-marriage-equality amendment is in the works, but he picked up a lot of Creem's work and added to it.

Let us pause first to reflect what great fun this must be. Among the beadle work and slogging that legislation so often involves, what a joy to sit at a conference table giggling about finds in our laws.

The original post-Revolution constitution carried over its colonial era laws into our new Constitution ain 1780. While some of those laws are a bit odd now, those that the legislature wants to clean up are almost entirely the detritus of our various state legislators in the past two centuries.

Unitarian Universalist Note: The 1788 constitutional convention that debated and approved the federal document occurred in the largest meeting space in Boston, the Long Lane Church. After that, the byway became Federal Street because of the event and the church changed its name. The congregation outgrew that building and built the first public building in the new land fill that became the Back Bay. That was and is the Arlington Street Church. The original location became Bank of Boston HQ, then that of Bank Boston, and subsequently the local HQ of Fleet and now BankAmerica.

The lawmakers, or in this case unmakers, have that fun of identifying and targeting laws outdated by changing cultures, conflicts with other laws, and even realities of technology. While we tend to ignore our own odd habits and offices and homes filled with the unnecessary, we nevertheless ask how could these legal jokes remain?

Part of that is simply inertia. For an alleged freedom-loving nation, we have too many damned laws. At both federal and state levels, legislators don't simply replace one law with a new version. They amplify, amend, and create constantly. The glory of claiming to have solved voter problems with new laws far outshines any clerical improvements.

The new Bulletin Newspapers seem to have the best coverage of Rushing's version. It notes that as with other omnibus legislation, this bill will gang 20 old laws instead of having a separate bill for each. They range from a whole series on such matters as being able to arrest a vagrant without cause or warrant, permitting arrest and up to a year in jail or $300 fine for blasphemy, and fines of $20 for anyone who spits in such public places as on steamboats. Oh, and selling or even advertising condoms seems to be illegal (Chapter 272, Sections 21 and 21A).

Some are dated by politics -- Chapter 264, Section 16A reads in its entirety: The Communist Party is hereby declared to be a subversive organization. Others conflict with later laws, such as Chapter 265, Section 34, forbidding tattooing by anyone other than a physician, when the state now licenses and regulates tattoo parlors.

Some are not trivial. Even though it is not enforced, Chapter 272, Section 14: reads:

A married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.

Rushing said that may be one that gets some debate. "There are people who would argue that even though no one should be prosecuted for adultery that it sends a sign. "To take the law off would almost in some way say we are in favor of adultery. You get those kinds of arguments."

Yet, he sees this and the law against unmarried folks having sex as a package. Chapter 272, Section 18, reads: Whoever commits fornication shall be punished by imprisonment for not more than three months or by a fine of not more than thirty dollars.

With the U.S. Supreme Court making it plain in several cases, notably pertaining to sodomy as defined as homosexual sex, that sex between consenting adults cannot be prohibited per se. In addition, as he told the Cambridge Chronicle about the 1913 marriage laws, "If we had found that law earlier, we probably would have been able to (repeal) it without any controversy at all."

Wording Note: The newspaper posting reads appeal it instead of repeal it, which we take to be a typo rather than Rushing misspeaking.

Last year, Senate 938 languished after being sent to the hell of study by the Joint Judiciary Committee. We're betting Rushing gets a better hearing and a fair likelihood of success.

He's also not working alone. Helpers include Prepresentative Ruth Balser, Gloria Fox, Louis Kafka, John Keenan, David Linsky, Willie Mae Allen, Liz Malia, Doug Petersen, Denise Provost, Carl Sciortino, Ellen Story, Benjamin Swan and Marty Walz, and Senators Edward Augustus and Patricia Jehlen.

He has called for attentional such finds by other legislators to add to the bill. He may have to compromise and drop a few, but we should end up with fewer entries in the next article about archaic laws still on the books.

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Tags: massmarrier, Massachusetts, laws, Byron Rushing