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Old Blue Laws Are Hitting Red Lights

Statutes Rolled Back As Anachronisms

By Jonathan Finer
Washington Post Staff Writer
Saturday, December 4, 2004; Page A03

BOSTON -- In the 17th century, this city's high-minded settlers labeled anyone a criminal who "willfully blasphemes the holy name of God," a crime perhaps punishable by an afternoon in the stocks being pelted with rotten fruit.

Today, while the penalty for such an egregious breach of the social order has changed, that law remains on the books in Massachusetts -- along with a host of other long-ignored vestiges of the puritanical past. But maybe not for long.

Boston is one of the jurisdictions cleaning old statutes off the books. With tribe representatives present last month, Mayor Thomas M. Menino prepared a home-rule petition asking the City Council to repeal the Indian Imprisonment Act of 1675. (Chitose Suzuki -- AP)

Last month, Mayor Thomas M. Menino said he would lift a 329-year-old requirement that Native Americans be escorted in the city by "musketeers." And this week, state Sen. Cynthia Stone Creem (D) introduced legislation to repeal bans on blasphemy and adultery.

Commonly referred to as "blue laws," the collection of restrictive statutes implemented or inspired by New England's devout earliest residents included bans on such things as lacy shirt sleeves, birth control, and hunting or buying alcohol on Sundays. They have come under increased attack in recent times; in the past two years Massachusetts and 10 other states have scaled back restrictions on liquor sales.

"The Puritans wanted almost a theocratic state, with no clear separation between the church and government, but the world began to change a long time ago," said Peter Drummey, a librarian at the Massachusetts Historical Society. "Now you see what's left of the traditional blue laws slowly fading away."

The Puritans began arriving in the Boston area from England in the early 1600s and left a legacy of statutes designed to protect their community from sacrilege. In a famous 1656 example, a Captain Kemble was convicted of "lewd and unseemly behavior" when he kissed his wife in public after returning from three years at sea.

According to Drummey, the phrase "blue laws" was coined by Samuel Andrew Peters of neighboring Connecticut, who mocked the rigidity of such rules in a history of that state written in 1781. (Other accounts say the name refers to the blue wrapping that accompanied printed documents during that period.)

Critics of the remaining regulations say they are not just anachronistic but also potentially harmful -- and, in some cases, unconstitutional. While several, such as the criminalization of sodomy, have been found unconstitutional in recent years, they officially remain the law of the land.

Creem's "archaic crimes" bill would repeal bans on blasphemy, adultery (which, on paper, carries a sentence of up to three years), fornication (defined as sexual intercourse out of wedlock), and some acts listed as "crimes against nature," including sodomy.

"It's not just that they are no longer relevant, but some of these could be used for the purpose of targeting or embarrassing someone for political or other reasons," said Sean Kealy, Creem's legal counsel. "The only time these things rear their head is when somebody has it out for somebody else."

Several religious organizations oppose Creem's bill. Earlier versions have failed in the legislature at least twice since 2000.

"In spite of the fact that they are no longer enforced, we think there's something vital lost in this position that morality should have no role to play in public policy," said Daniel Avila, associate director for policy and research at the Massachusetts Catholic Conference.

There was little opposition when, just before Thanksgiving, Menino filed a home-rule petition to lift the requirement that American Indians be escorted into the city, lest residents be "exposed to mischief."

"As long as it remains on the books, this law will tarnish our image," he said of the statute, passed during the height of a bloody conflict between settlers and natives known as King Philip's War.

But other attempts to remove blue laws here and in other states have proved controversial. Among the most widespread blue laws still in effect are those governing commercial and recreational activity on Sundays. (Because of this, blue laws are sometimes defined narrowly as Sunday closing laws.)

The result is a remaining patchwork of blue laws that vary widely among, and even within, states. Car sales on Sunday, for example, are banned in all Maryland counties except Montgomery, Prince George's and Howard. Pennsylvanians cannot buy beer in stores on Sunday, but bars remain open. Hunting on Sunday is banned or restricted in 15 states, and 32 restrict alcohol sales.

Until the mid-1990s, no Massachusetts businesses were permitted to open until noon on the Christian Sabbath, ostensibly to give employees time to attend church. Employers are still prohibited from requiring anyone to work on Sunday, and businesses that employ more than seven people must pay overtime.

But economic pressures on states have encouraged lawmakers to reconsider such provisions. The Bay State repealed its long-standing ban on Sunday liquor sales last winter over widespread opposition from religious organizations, part of a $100 million economic stimulus package, though several liquor store managers reported in interviews that there has been no upswing in business.

"This is one step in the process of making the Sabbath into just another day, and it is happening in many other states as well. We think that is wrong," Avila said.

But some observers point to recent bans on smoking in the workplace implemented in dozens of cities, including Boston, as legislation that would have made the Puritans proud.

"It isn't religious in nature, but the principle is the same," Drummey said of the anti-smoking laws. "It's a desire to preserve a certain standard for the community."

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