By failing to decommission un-needed laws — even ones that are clearly unconstitutional — legislators inadvertently create an environment that threatens everyone’s liberty. True, it’s unlikely that anyone would actually be prosecuted for, say, spitting on the sidewalk, but, if that law’s technically in force, an overzealous police officer not properly versed in citizens’ rights could arrest the slobbering scofflaw — especially if the officer sought to punish the expectorator for other unsavory behavior.

In light of this precarious state of affairs, State Representative Byron Rushing (D-South End), a tireless civil-liberties advocate, has proposed a bill that would repeal 20 such antiquated criminal statutes from the Massachusetts criminal code. The laws in question criminalize common behavior such as adultery, blasphemy, fornication (defined as sex between non-married persons), spitting in public, tattooing without a medical license, advertising abortions, voting Communist, vagrancy, and visiting a place where food or drink is sold for the purpose of “immoral solicitation or bargaining.”

Rushing’s bill, which has about 30 co-sponsors and the endorsement of the American Civil Liberties Union (ACLU) of Massachusetts, will be considered by the Judiciary Committee at a currently unscheduled hearing later this year.

Many, if not all, of the archaic laws Rushing seeks to repeal are clearly unconstitutional. The various bans on providing abortion services, for instance, should have been struck in 1973, after the passage of Roe v. Wade. The law against blasphemy has been undermined by an entire century of American free-speech jurisprudence. And legislators should have repealed the Commonwealth’s fornication law after the Supreme Judicial Court found it of “doubtful constitutionality, at least as applied to the private, consensual conduct of persons over the age of consent” back in 1994 (Attorney General v. Desilets), or after the US Supreme Court found Texas’s sodomy law to be unconstitutional in the landmark case of Lawrence v. Texas (2003).

If these anachronistic laws were to be universally enforced by the courts, most of the country would be behind bars — thankfully, as it stands, prosecutions of such “crimes” are few and far between. They do, however, happen.

Consider the case of Timothy Boomer, who went on an expletive-laced rant after his canoe capsized in the Rifle River just north of Detroit in 1999. Unfortunately for Boomer, a mother and child on shore overheard his string of profanity, and the offended woman called the police. Shockingly, a judge found Boomer guilty of violating a Michigan law, dating back to the 19th century — and last reworded in 1931 — which states that anyone using “indecent, immoral, obscene, vulgar, or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.”

It took three years for an appeals court to finally overturn Boomer’s misdemeanor charge and, in the process, invalidate (but, of course, not actually repeal) the antiquated law on both First Amendment and “void for vagueness” grounds. Such a statute, needless to say, also has serious gender-equality problems.

Lawful harassment
Cases like Boomer’s can distract somewhat from the real menace posed by archaic laws — namely, that they enable police misconduct and the unequal application of the law. It’s no secret that police officers routinely confront behavior that many people consider bothersome or undesirable — a young man talking trash, for instance, or a homeless man ranting to a captive audience in a subway station. “Old laws on the books can encourage law-enforcement officials to target, hassle, and, in some cases, arrest people on the basis of invalid laws,” says Carol Rose, executive director of the ACLU of Massachusetts.

If the cop is later forced to explain an arrest, he could theoretically defend his behavior by citing the vague laws attacked in Rushing’s bill. After all, police officers often don’t care if the district attorney’s office refuses to prosecute a case, as long as the cop is protected for making the arrest. If the law is on the books, it’s hard to charge the cop with violating the citizen’s rights.

As is often the case with matters of police misconduct, the threat posed by archaic statutes is particularly grave for racial and ethnic minorities, gays and lesbians, the indigent, and the politically unpopular.