If state Rep. Byron Rushing, a Democrat from Boston's South End, has his way, laws that criminalize adultery, vagrancy, fornication, sodomy, blasphemy, Communism, and more will soon be repealed.
Massachusetts, today the bluer-than-blue embodiment of all things progressive, hasn't always been so permissive. The Bay State's puritan founders—and their puritanical descendants—have traditionally had a low threshold for outrage.
Laws, now considered unenforceable, that criminalize adultery, vagrancy, fornication, sodomy, blasphemy and more, are still on the books.
"What seemed reasonable 30 and 40 and 50 years ago is not reasonable now, and every once in a while it could be used in a way you wouldn't want it to be used," Rushing told WGBH News Tuesday.
Many of the old laws stick around for decades or centuries, even after the judicial branch rules the prohibitions unconstitutional. The legislative branch never seems to get around to removing the legal detritus.
Though the Legislature is slow to reverse course even on the most audacious sections of outdated law, a collection of Rushing's proposals has been given initial approval by the House, the furthest the South End lawmaker's bills have gotten in the 10 years he's been trying to pass them.
Some of the laws Rushing wants to repeal include the official labeling of Communism as a "subversive organization," and another that says only physicians can give tattoos.
"I haven't found anybody lately that's opposed to having someone belong to the Communist Party if a Communist Party decided to get resurrected in Massachusetts," Rushing said.
Getting rid of the outdated laws is low on the list of priorities currently being juggled by the Legislature, Harvard Law School professor Laurence Tribe told WGBH News.
"The danger that such laws will be pulled out of the drawer and enforced against unwitting members of disadvantaged groups is often overlooked," Tribe said.
"The effort to clean up and update outmoded and partly or wholly unconstitutional laws as Byron Rushing is doing remains an important one, not least because the presence of dead wood in our lawbooks contributes to a corrosive cynicism and a scofflaw attitude," Tribe said.
Another section of law Rushing wants to expunge deals with the legal definitions and punishments for "tramps," "vagrants" and "vagabonds."
What's an official tramp, you ask? Well, according to currently active but never-enforced Massachusetts law, you'll be deemed a tramp if "a person asking charity within his own town, roves about from place to place begging, or living without labor or visible means of support." If you beg for money, food or, yes, alms, in a town where you don't live, or openly live the hobo life by "riding upon a freight train of a railroad... without a permit from the proper officers or employees of such railroad or train."
Getting caught doing any of that, in the eyes of the law, "shall be prima facie evidence that such person is a tramp."
A proposal to decriminalize "resorting to restaurants or taverns for immoral solicitation," didn't make it through negotiations, however, and will have to wait at least until next year for repeal.
Massachusetts's antisodomy law is too modest to call it what it is. The law calls for a state prison sentence of no more than 20 years for very vague crimes that, at the time, instructed a judge everything he needed to know.
"Of course, the word 'sodomy' never appears in our laws. So we have this sort of weird-—how do we put it? 'Whoever commits the abominable and detestable crime against nature, either with mankind or a beast shall be punished with imprisonment in the state prison,'" Rushing said, quoting from the statute.
The law generally considered to prohibit oral sex is similarly labeled as "any unnatural and lascivious act with another person," but that one will only land you in jail for two-and-a-half to five years.
For the record, the 2003 Supreme Court case Lawrence v. Texas, and other cases, both federal- and state-level, found that sexual acts between consenting adults are not subject to these types of prohibitions.
Rushing described the decade-long struggle against colleagues and advocacy groups that oppose removing one or more of the old laws for reasons he didn't anticipate—for instance, on the prohibition against public spitting:
"We'll be going along, looking like that's going to pass and a group of people will say, 'Oh no, that's really, really unsanitary, and I don't like it,'" he said.
"You file things and sometimes you have to file it over and over again until you get a certain consensus in the Legislature," Rushing said, adding that he hopes to get the bill at least through the House before lawmakers break until next year at the end of July.
Rep. Chris Walsh (D-Framingham) a cosponsor of some of the bill's language to remove old laws, said lawmakers can be slow to act out of concern for their action being taken out of context. To an opposing campaign or disagreeable media outlet, a vote to do away with the law against blasphemy could be spun as a vote in favor of speaking sacrilegiously against the almighty.
"I think people are concerned that the language will be taken in sort of bizarre way and headlines will come out of it," Walsh said of his fellow lawmakers. "And so I think people are oftentimes very justifiably nervous about even mentioning some of these things."
It takes a certain confidence that a lawmaker can take whatever political or media heat that's generated from this kind of vote, Walsh said.
"People get very nervous about doing anything that could be used in a way that paints them into a corner, that could be intentionally misinterpreted when, in fact, this is a very, very healthy thing to do," Walsh said. "Expunge the stuff that has been deemed unconstitutional, no longer valid."
Rushing is also pushing legislation that's been advanced by the House to set up a commission to frequently review outdated laws and suggest their removal, so it won't take another 10-year crusade to freshen up the law books.
