by Jim McCarthy
The zombies, which have become popular in film and television, find an echo in the nation’s legislative sausage making. Typically, the term zombie legislation applies to laws struck down or sentenced to death, often by federal or state court rulings, that remain in effect due to legislative lethargy. Currently, the phenomenon has become more apparent and relevant following the decision of the Supreme Court of the United States (SCOTUS) in Dobbs vs. Jackson reigniting concerns about privacy precedents.
In fact, however, zombie statuses have an even older presence than 2022.
Post-Civil War amendments sought to emancipate slaves and affirm the principle that all are created equal. The thirteenth (in precatory language) declared that “Neither slavery nor involuntary servitude…shall exist in the United States,” and the fifteenth guaranteed that the franchise would not be denied. Declaring slavery will not exist because a prior declaration does not amount to prohibiting the practice. Just over three decades later, in the early 1900s, Virginia called a constitutional convention. One of its prominent leaders, Carter Glass (later U.S. Senator), when answering questions about certain provisions of the document as discriminatory, proclaimed:
Discrimination! This is exactly what we offer. Eliminate any Negro elector who can be rid of, legally, without materially harming the numerical strength of the white electorate.
The reality of this statement haunted the state for decades to come and cast its menacing shadow over a number of other public policies, as evidenced by the Jim Crow provisions of the new constitution and, later, the Law of Justice. racial integrity of 1924. Housing, real estate purchases, employment, and schooling fell victim to Glass’s outspoken dream of securing the plantation panorama.
Another example comes in the survival of a poll tax in Virginia from Glass’s discriminatory view. Although the Twenty-Fourth Amendment (March 27, 1962) banned poll taxes in federal elections, Virginia persisted in levying a poll tax until SCOTUS buried the practice in Harper vs. Virginia (March 24, 1966) enforcing the Equal Protection Clause of the Fourteenth Amendment. The state poll tax fell most heavily on poor blacks and whites much to the dismay of its creators. Some historians and apologists argue that the handwriting on the federal wall simply does not apply to states because they have the power to determine voter qualifications independently of federal law. But it is also a truism that such nuanced explanations fail to aid understanding or acceptance by the general public.
In 2006, Virginians voted 57% to 43% in favor of an amendment to its constitution banning same-sex marriages. In 2014, a federal appeals court ruled the Commonwealth ban unconstitutional. A year later, SCOTUS came to the same conclusion in a consolidation of six cases that arose in the district courts. Oberfelfell v Hodges seemed to seal the principle. In 2017, polls indicated that 60% of Virginians supported same-sex marriage. In 2021, the General Assembly approved referendum language to remove the 2006 ban. Nonetheless, in a House subcommittee hearing on February 8, 2022, a GOP-led majority voted 6 to no. 4 to block required passage of the bill’s second year in order to place it on the ballot for consideration by voters.
An opposition spokesman for the conservative Family Foundation claimed that removing the same-sex ban could “open the door to polygamy, intermarriage and legally sanctioned child marriage”, as local media reported. In sum, six legislators, relying on dubious and anecdotal ideology, determined that popular expression of American opinion and SCOTUS were not persuasive to accepting a breakthrough in social progress. Save the Zombie!!
Although many zombies deny continuing to prowl the Commonwealth, a 2019 executive order from the governor created a commission to examine racial inequality in Virginia law. Incredibly, the Commission’s initial report identified three unrepealed statutory provisions authorizing poll taxes. Similarly, provisions of undead close to 100 covered a period from 1901 to 1960. The massive resistance of the Byrd years produced a surviving provision stating that “no child shall be compelled to attend integrated schools”. Others contained racial restrictions that applied to neighborhoods, playgrounds, and trains. Jim Crow and Carter Glass successfully farmed zombies while the General Assembly slept.
While it is true that the majority in Dobbs was of the view that his decision was intended to apply only to the issue of abortion, Judge Thomas’ agreement strongly encouraged the reconsideration of other decisions relating to the private life involving the use of contraceptives in marriage (Griswold vs. Connecticut1965) and gay marriage (Oberefell, 2015). Even if one agreed with SCOTUS’ view that these confidentiality decisions were “poorly made” and do not relate to specific language in the Constitution (the theses of the originalists or textualists) , these decisions have engendered deep public confidence in them. Griswold struck down a state law banning the use of birth control by married couples. Recent polls indicate that 90% of Americans support contraception and 65% believe the Constitution contains a right to privacy.
Anti-miscegenation laws in the United States date back to colonial times, with Virginia being no exception. In 1878, the Supreme Court of Virginia ruled that a marriage legally solemnized in DC for an interracial couple was invalid in the Commonwealth. Legislation was passed that year that made interracial marriage a crime, but also made it illegal to leave the state to escape the law. These prohibitions were reinforced by the eugenics craze of the 1920s that produced the Virginia Sterilization Act of 1924. The state’s Racial Integrity Act, mentioned earlier, contained a provision repeating and reinforcing criminal liability for marrying in another jurisdiction and returning to Virginia. It was not until 1967 (Love against Virginia) that the conflict was finally resolved. Both laws were not finally and completely repealed until the late 1970s. Next Dobbssome state jurisdictions are considering making illegal trips across state lines for an abortion as well as restricting the delivery of contraceptive supplies from out of state.
Democrats have been criticized for failing to codify privacy protections such as those of Griswold and Roe and their successors. Republicans chastise Democrats for current efforts to codify same-sex marriage and access to contraception, especially between states, as unnecessary since SCOTUS was clear that Dobbs only applies to abortion. In Virginia, the governor has publicly expressed his pro-life beliefs, but it has been recorded that he is only asking for a change to the Commonwealth’s week deadline for an abortion. His budding venture into the national political arena may have some bearing on his pro-life stance.
Increasingly, constitutional scholars conclude that Dobbs and opposition to same-sex marriage have deeper roots in theology or religious doctrine than in jurisprudence. GOP Rep. Bob Good noted that he opposes federal legislation protecting same-sex marriage as contrary to his biblical beliefs. Similar sentiments have been expressed by candidates and elected officials in Ohio and Michigan against birth control laws and privacy precedents.
At the same time, zombie creationists, in the tradition of Dr. Victor Frankenstein, worked diligently in their legislative laboratories. A dozen states have incubated ‘trigger’ laws to come alive upon the death of deer, a type of cryogenic zombie. The success of this experiment will not fail to encourage other statutory creations.
Jim McCarthy is a former New York lawyer living in Virginia.