Attack of the Zombie Laws: What to Know

Did you know that it’s illegal to kiss your spouse in public on a Sunday in Connecticut? 

California has made it illegal to drive while wearing a housecoat. 

In Alabama, you can’t wear a fake mustache if it causes laughter in church. 

Arizona, which has been in the news lately for several reasons, still makes it illegal to allow a donkey to sleep in a bathtub. 

Not to be outdone, the state of Alaska has outlawed pushing a live moose out of an airplane.

These often humorous examples of off-the-wall legislation can leave one wondering about the circumstances that required legal oversight in the first place. However, the bigger question is why so many of these laws remain on the books in 2024. 

Is it merely benign neglect, or are these pieces of legislation waiting to be resurrected like zombies lurking in the dark corners of America’s legal archives? 

Let’s unpack the reasons for the existence of zombie laws in the first place and discuss the real danger such laws pose to our current civil liberties. We’ll also offer some possible solutions that protect individual rights in a nation of laws. 

What Are Zombie Laws?

Within the often convoluted history of American jurisprudence, there exists a curious phenomenon known as zombie laws, also known as "dead letters.” These are the decaying remnants of bygone eras that still exist in legal codes despite being obsolete, unenforceable, or outright nonsensical. 

Such undead statutes, which are often buried in long-forgotten legal archives, have the potential to exert a subtle but significant influence on contemporary society when resurrected. 

The Origins and Evolution of Zombie Laws

The genesis of zombie laws can be traced to a variety of factors that span historical, political, and societal dimensions. Some laws, which were enacted in response to specific historical events or moral panics, have outlived their relevance as social norms and values evolved. Others have been deemed irrelevant due to subsequent appellate court decisions. 

For example, remnants of Prohibition-era "blue laws," which regulated activities like commerce and alcohol sales on Sundays, still linger in certain jurisdictions despite the repeal of nationwide Prohibition in 1933. The result is the continued existence of more than 80 so-called “dry counties” scattered throughout the nine states that still prohibit or restrict the sale or consumption of alcohol on Sunday. 

The 1961 Supreme Court decision in Torcaso v. Watkins made it illegal to use a religious test as a qualification for appointment or election to public office. However, seven state constitutions still make it illegal for an avowed atheist to serve in such a capacity. All it might take is one person’s objection to an opponent to send this zombie shambling back into the public sphere. 

In addition to indifference, political expediency and compromise also contribute to the proliferation of zombie laws.

Within the swirl of legislative activity, poorly drafted bills, hastily enacted statutes, and last-minute amendments can inadvertently give rise to legal anomalies that persist long after their intended purpose has faded into obscurity. The inertia of bureaucracy and the reluctance of lawmakers to undertake comprehensive legal reviews continue to perpetuate the existence of outdated laws.

How Zombie Laws Come Back to Life

Zombie laws, by their nature, defy easy categorization. They encompass a broad range of statutes, ordinances, and regulations that have long outlived their usefulness but remain formally on the books. These undead relics often go by names like "blue laws," "deadwood laws," “dead letters,” or "fossil laws," reflecting their antiquity and irrelevance in modern society.

Social shifts, technological advancements, and evolving norms can also render once-reasonable laws archaic and impractical. However, legal challenges and Supreme Court decisions are intended to set precedents that review and neutralize unconstitutional state laws, making them appear unenforceable and their repeal at that level unnecessary.

At least until they aren’t.

The 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization tossed the question of a woman’s right to privacy back to the states. This created a domino effect as state after state with old and previously unconstitutional abortion bans still on their books attempted to dig up these fossils, dust them off, and give them new life. 

The Specter of Archaic Legislation

The enduring presence of zombie laws casts a long shadow over the legal landscape, exerting a range of consequences that ripple through society. Despite being largely unenforced, these laws can sow confusion, breed contempt for the legal system, and impede efforts to promote social progress. 

They also prepare a fertile ground for arbitrary enforcement from authorities who selectively invoke antiquated statutes to justify their current legislative actions. Roe, once considered by the Supreme Court as settled, federal case law on the matter, was neutralized in the same court by the Dobbs decision, triggering an avalanche of long-dormant state bans that were lurking in the wings, waiting for a chance to influence policy at the state level.

Recent developments in Arizona's abortion legislation provide a poignant example of the perils posed by zombie laws. It’s part of a legislative history that has left the women of Arizona and their healthcare providers confused about their rights, obligations, and legal liabilities.

The confusion began in 2012, when the state passed a law criminalizing abortion after 20 weeks of pregnancy, a restriction that was struck down as unconstitutional by the Arizona Supreme Court in 2014. However, the statute remained on the books, a dormant relic waiting to be unearthed. In 2022, the Dobbs decision triggered the new, more restrictive ban based on an 1864 law that was drafted before Arizona was even a state and codified shortly after it was admitted to the union in 1912. 

In a separate, solo concurring opinion of the case that reversed Roe v. Wade, Justice Clarence Thomas signaled that other instances of what were once considered precedent-setting cases could come under judicial review some time in the future. This, in turn, could provide further opportunities to resurrect zombie laws in individual states. 

Examples of Zombie Laws in Action

While the Arizona abortion legislation serves as a stark example, there are numerous other instances where zombie laws have been resurrected. One such example is the continued existence of discriminatory housing covenants. These are relics of the Jim Crow era, but they persist in property deeds across the country despite being unenforceable under federal law. 

Such discriminatory clauses, though unenforceable, perpetuate the legacy of segregation and systemic racism, casting a shadow over efforts to promote more inclusive and equitable communities.

Similarly, antiquated "sodomy laws" that criminalize consensual sexual activity between adults of the same sex remained on the books in many states well into the 21st century. This happened in Bottoms v. Bottoms, the 1994 Virginia case that resulted in a mother losing custody of her two-year-old child when she became involved in a same-sex relationship. 

Subsequent attempts to void that decision have failed despite being invalidated by the Supreme Court's landmark 2003 ruling in Lawrence v. Texas and removed from Virginia statutes in 2014. Although sodomy is no longer illegal in Virginia, there are 12 states that still have anti-sodomy laws on the books in 2024, including Florida and Texas.

However, dead letter legislation isn’t relegated to the privacy and equal protection rights that are baked into the 14th Amendment. 

For example, certain energy laws were originally enacted to protect consumers from exorbitant energy prices and monopolistic energy producers and related entities. However, they are now being used by fossil fuel companies to undermine alternative energy projects. 

The Federal Power Act of 1920 was amended several times in an attempt to permanently bury such zombie legislation. The Energy Policy Act of 2005 also updated laws regarding energy production and conservation to prevent attacks from fossil fuel enterprises and their surrogates.

Similarly, draconian drug laws that were relaxed since the states began to decriminalize marijuana and treat substance use disorders as health issues rather than criminal matters are being resurrected in the wake of the Fentanyl crisis.

Combating the Undead: Strategies for Reform

Eliminating zombie laws isn’t as simple as losing what we don’t use. The false assumption that these archaic laws are irrelevant or unenforceable due to lack of use or legal precedent isn’t enough. In fact, there is no permanent legal remedy for being charged under such laws  — even when they have been declared unconstitutional at the state and/or federal level — except for complete repeal and removal.  

Addressing the problem of zombie laws requires a triple-tap from the concerted efforts of policymakers, legal experts, and engaged citizens alike. Legislative bodies must prioritize comprehensive reviews of existing statutes, with a focus on identifying and repealing outdated provisions. Further, the implementation of mechanisms such as sunset provisions can prevent the accumulation of dead letters in the future.

Independent voters and politicians play a crucial role in this endeavor. 

By advocating for transparency, accountability, and evidence-based policymaking, independents can shine some light into the shadowy corners of legislative bodies where zombie laws often lurk. We can also create a culture of public engagement and civic education that empowers citizens to demand meaningful reforms and hold elected officials accountable for addressing outdated laws. Private citizens and NGOs can call for referendums or create voter-led ballot initiatives. 

Exorcizing the Specter of Zombie Laws

Regardless of your stance on any specific socio-political issues, most of us can agree that 21st-century America is no place for archaic, outdated legislation that doesn’t reflect the will or realities of the American people. 

The persistence of zombie laws poses a significant challenge to the integrity and effectiveness of legal systems in contemporary America. As we navigate the complexities of governance in the 21st century, it’s important to remain vigilant in our efforts to unearth and exorcize these undead relics and ensure that our laws align with the needs and values of our society. 

Only through proactive reform and sustained civic engagement can we rid ourselves of the specter of antiquated legislation and uphold the principles of justice, equality, and the rule of law for all. 

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