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Desuetude-Based Severability: a New Approach to Old Morals Legislation

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Desuetude-Based Severability: a New Approach to Old Morals Legislation File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM Desuetude-Based Severability: A New Approach to Old Morals Legislation ERIK ENCARNACIÓN* Sometimes officials fail to enforce a statute despite its widespread viola- tion over a long period of time. Under the doctrine of desuetude, such statutes are considered void and therefore may be abrogated by judges. This Note articulates and defends a version of the doctrine that would pre- vent arbitrary and capricious enforcement of obsolete morals legislation, while simultaneously preserving the residual symbolic value that other- wise obsolete morals legislation may retain for citizens. Judges would ac- complish this by invalidating the punishment-enabling provisions of mor- als legislation as desuetudinal, while preserving the offense-defining pro- visions that may still have symbolic value. I. INTRODUCTION What should a court do when deciding whether to enforce ob- 1 solete morals legislation, such as a statute banning fornication? * The author would like to thank Ankush Khardori, Patty Li, Peter Romer- Friedman, Matthew Vogele, and Professor Kendall Thomas for their valuable input. Above all, the author would like to thank his parents Claudia and Jose Luis Encarnación for their constant love and support. 1. This Note uses “morals legislation” broadly to refer to regulations of so-called “victimless crimes,” including, but not limited to, criminal regulations on consensual sex- ual activity. For a similar usage, see Sara Sun Beale, The Many Faces of Overcriminiliza- tion: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 750 (2005) (suggesting that morals legislation often criminalizes “common and innocuous” behavior). For a narrower understanding of “morals legislation,” see Lawrence v. Texas, 539 U.S. 558, 599 (2003) (Scalia, J., dissenting) (emphasizing the role that morals legisla- tion plays in regulating sexual conduct consistent with notions of traditional sexual moral- ity). File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM 150 Columbia Journal of Law and Social Problems [39:149 Such statutes are landmines.2 They lie dormant, often for dec- ades, while law enforcement officials make no effort to enforce them despite widespread violation by the public.3 Normally these statutes are harmless because nobody comes into contact with them. But as one commentator notes, they are capable of causing “grave injustice.”4 This is because, as Cass Sunstein has ex- plained, obsolete statutes are enforced against private citizens in “an unpredictable and essentially arbitrary way.”5 What should be done about such legislative landmines? Should they be deacti- vated or left alone? If they should be deactivated, by whom and by what means? This Note considers judicial approaches to deactivating obso- lete morals legislation. Specifically, this Note proposes a way to disarm such legislation while simultaneously accommodating the values they may reflect. It argues that in a limited class of cases it is appropriate for judges to sever parts of old morals legislation while leaving the rest intact. That is, this Note argues that it is sometimes appropriate to sever provisions defining the punish- ment, while leaving untouched provisions defining the proscribed conduct. Thus, as the title suggests, this Note argues for a type of severability doctrine. The title also suggests something about desuetude, the doc- trine providing that anachronistic statutes become void when 2. A sampling of morals legislation that is still “on the books”: ALA. CODE § 13A-12- 1 (LexisNexis 1975) (prohibiting, inter alia, shooting, hunting, gaming, card playing, or racing on Sunday); D.C. CODE ANN. § 22-1307 (LexisNexis 2001) (making it unlawful, inter alia, for anyone to curse, swear, or make use of any profane language or indecent or ob- scene words, or engage in any disorderly conduct in a wide variety of public places); MASS. ANN. LAWS ch. 272, § 14 (LexisNexis 1992) (criminalizing adultery); id. § 18 (banning fornication); VA. CODE ANN. § 18.2-388 (1950) (banning profane cursing or swearing in public); and W. VA. CODE ANN. § 61-8-15 (LexisNexis 2005) (restricting cursing or swear- ing in public). 3. See Corey R. Chivers, Desuetude, Due Process, and the Scarlet Letter Revisited, 1992 UTAH L. REV. 449, 453-56; Linda Rodgers & William Rodgers, Desuetude as a De- fense, 52 IOWA L. REV. 1, 1-3 (1966); Arthur E. Bonfield, The Abrogation of Penal Statutes by Nonenforcement, 49 IOWA L. REV. 389, 389-91 (1964). 4. Bonfield, supra note 3, at 391. 5. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CT. REV. 27, 50. Making essentially the same point, the legal counsel for one Massachusetts State Senator remarked, “It’s not just that [obsolete morals statutes] are no longer relevant, but some of these could be used for the purpose of target- ing or embarrassing someone for political or other reasons . The only time these things rear their head [sic] is when somebody has it out for somebody else.” Jonathan Finer, Old Blue Laws Are Hitting Red Lights, WASH. POST, Dec. 4, 2004, at A3. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM 2005] Desuetude-Based Severability 151 they go unenforced for long periods of time. While the doctrine has not been widely accepted in the United States, various ver- sions of the doctrine have been proposed in the case law and aca- demic literature. Part II describes three judicial approaches to the problem of desuetudinal legislation, two of which explicitly invoke the doctrine of desuetude. While these approaches all have advantages and disadvantages, existing desuetude-based proposals fail to account for a curious problem that arises when public officials attempt to repeal obsolete morals legislation. While typically no one cares whether desuetudinal statutes are vigorously enforced, vocal opposition often develops when public officials attempt to remove them,6 which undermines the view that the legislation in question is actually desuetudinal. Part III explains this phenomenon in greater detail. In an attempt to de- velop a viable, desuetude-based solution to the problem of obso- lete morals legislation, Part IV observes that previous versions of the doctrine of desuetude have failed to recognize that morals legislation often serves a unique expressive or symbolic purpose that may survive even long-term non-enforcement. This Part also develops a desuetude-based severability doctrine, which would sever as void the punishment-enabling provisions of morals legis- lation, but would leave untouched the remaining symbolic as- pects. Part V demonstrates how the doctrine would be applied. There are several likely objections to this proposal addressed in Part VI, including the objection that the proposed doctrine invites judicial activism. Finally, Part VII concludes by noting that de- spite the concerns inevitably raised when judges abrogate legisla- tion, desuetude-based severability nonetheless provides an ad- ministrable standard that enables courts to remedy the problems associated with obsolete morals legislation, while achieving po- litical compromise with those who value morals legislation. At a minimum, judicial intervention invites a legislative response to address the problems of desuetudinal morals legislation, where legislators might otherwise lack the incentive to remedy the prob- lem. 6. See, e.g., Ted Olsen & Todd Hertz, Does Lawrence v. Texas Signal the End of the American Family?, CHRISTIANITY TODAY, June 30, 2003, http://www.christianitytoday.com /ct/2003/126/11.0.html; Neil A. Lewis, Conservatives Furious Over Court’s Direction, N.Y. TIMES, June 27, 2003, at A19. File: Encarnacion14 Created on: 1/26/2006 6:47 PM Last Printed: 2/8/2006 11:01 AM 152 Columbia Journal of Law and Social Problems [39:149 II. EXPLAINING LEGAL DESUETUDE This Part explains the rationale underlying the various ver- sions of the doctrine of desuetude, which roughly states that it is procedurally unfair to enforce obsolete statutes against unsus- pecting individuals. While most jurisdictions do not give any ju- dicial notice to the fact that a particular law has fallen into dis- use from nonenforcement,7 there are several commentators,8 and at least two American jurisdictions,9 that have expressed interest in some applicable doctrine of desuetude. For these courts and commentators, the question is not whether an applicable doctrine of desuetude should be adopted, but rather what form it should take. Several versions of the doctrine of desuetude have emerged from the literature and, more rarely, from the case law. The clas- sical form of the doctrine of desuetude, for example, permits com- plete judicial abrogation of desuetudinal statutes.10 Before discussing the doctrine’s rationale, the concept of des- uetude should be distinguished from the doctrine of desuetude. The concept of desuetude simply means that some law has fallen into disuse.11 It functions descriptively, suggesting that law en- 7. Chivers, supra note 3, at 449 (observing that American courts have generally adopted the “American Rule” whereby non-enforcement of statutes under no circum- stances justifies their judicial abrogation). There is, however, a very important exception. The Supreme Court of West Virginia expressly adopted a doctrine of desuetude, coinciden- tally in the same year that the Chivers article was published. Committee on Legal Ethics v. Printz, 416 S.E.2d 720, 726 (W. Va. 1992). The test set forth in Printz was later applied in State ex rel. Canterbury v. Blake, 584 S.E.2d 512, 516 (W. Va. 2003), and again in State v. Donley, 607 S.E.2d 474, 479 (W. Va. 2004). Printz is discussed in more detail infra Part II.B. 8. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 148-56 (2nd ed. 1986); GUIDO CALABRESI, A COMMON LAW FOR AN AGE OF STATUTES 17-25 (1982); Bonfield, supra note 3, at 389; Chivers, supra note 3, at 449.
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