Are laws which proscribe IMPOSSIBLE activities automatically invalid? Take (for example, the old Massachusetts statutes against sorcery (repealed by Gov. Michael Dukakis, in 1973). Since there is no such thing as “sorcery”, such laws were/are unenforceable. My question is: many states have laws against ‘blasphemy” (actions disrespectful of God). Since the US Constitution forbids any establishment of religion (and atheists deny the existence of God), should charges against people accused of these crimes be automatically thrown out of court?
I mean, fortune telling is illegal (because there is no evidence that anyone has the power to predict future events), but how can one be charged with the crime of pursuing an activity which cannot be done?
How about refusal to swear an oath? If you are an atheist, swearing on a bible has no meaning for you; is the introduction of a (Christian) bible into a court of law, constitute establishment of a religion?
A law on the books is presumptively valid. If someone is accused of violating it, the burden is on the accused to show how or why the law is invalid.
Presumably someone arrested in 1972 for sorcery would have little problem making such a showing.
State legislatures usually have committees that periodically review their laws and modify them to be in accord with new court decisions. I have no idea how the process work in Massachusetts, or why it took them that long to get rid of the sorcery rule.
Wait, what?!?
You mean I just plunked down $3,495 for a new friggin’ cauldron for zip? :smack:
I would think that as long as the law is still ‘on the books’ it’s still enforceable, even if nobody has the ability to violate it. Successful prosecutions depends on an act being made illegal, and then the action being committed. If nobody can commit the act, then there can’t be a successful prosecution.
Now, your example of fortune telling. . . as far as I know, telling a fortune is not illegal because it’s known that nobody can actually do it predictably, so it’s generally assumed to be for entertainment value only. Thus, it’s not been made “illegal” by written law. Theoretically, an accurate, predictable fortune may be able to be made, but at this point, it’s not against the law, so there’s no prosecution for it.
You need both “A” (the statute) and “B” (the action against the statute) to commit a crime. Without one or the other, there’s no crime.
Tripler
I’m not a lawyer, but I play one on TV.
There are laws against fortune telling, not because the lawmakers thought fortune telling was possible but immoral, but because lawmakers thought fortune telling was impossible, and therefore fraudulent.
And there are no laws that require you to swear any oath. Everyone has the option to simply affirm that they will tell the truth. Nobody has to swear on a Bible. I’ve served on several juries and don’t recall any Bibles, the bailiff just asked people to raise their hand and swear to tell the truth. Bricker in your practice as a defense attorney was the use of an actual Bible common?
No. The witness was simply asked to raise his hand and swear that the testimony he was about to give was true.
I don’t believe that proving the existence of God is a necessary element of a blasphemy charge. There may be plenty of other defenses to such a charge available in modern law, but impossibility presumably would not be one of them.
Is there any way to write a law against blasphemy such that it would not get struck down due to the Establishment Clause? It seems you might be confusing it with obscenity.
Me? How? All I said is that blasphemy doesn’t require proof of the existence of God, so no impossibility problem. Certainly any blasphemy statute is likely to have major First Amendment problems, though.
I suppose it’s true that proof of God is also not an element of an obscenity charge, but that’s probably not what you are getting at. 
Silly man, that’s a cauldron for mortals! You brew a potion with that and you’ll turn yourself into a toad for sure.
Tom Tildrum: OK, we’re talking across each other, apparently. It seems to me that the Establishment Clause would rule out any blasphemy law if it were worded as such (offense to a god), but the same things might be illegal under an obscenity law (offense to community standards). One thing’s for sure: It would be really funny to see a small Massachusetts town try to enforce such a law against a website in San Francisco. 
I don’t know if I’m being picayune here, but doesn’t that apply to non-impossible laws–i.e., not the laws the OP is referring to?
If I am brought to trial for writing “President X’s policies are wrong,” and the prosecution has substantial evidence of such, the burden is on me to prove that the law is invalid.
However, if I am accused of putting the mojo on the President via sorcery, then though perhaps unwise, I do not have to present any defense at all – the prosecution, by definition of the OP, cannot make their case.
Unwise, because just because I know sorcery is absurd, it doesn’t necessarily follow that the jury does. I think that would be an interesting trial.
Not necessarily. We don’t know how big the cauldron is. It could go with this picnic basket, for example.
At least I couldn’t be prosecuted for sorcery then.
A few years back some Wiccan teenager in some small town here in central Illinois tried to organize a fair of sorts for his town. He submitted a proposal to the city council, outlining his plans to have Wiccan-flavored arts & crafts booths, psychic booths, and other things.
“Wait a minute - psychics?” said the town council. They opened up their law books and found some bit of code from decades ago that forbade “fortune-tellers” from practicing in their town - so no fair (no pun intended).
I don’t think the town fathers wanted to forbid “fortune-telling” because they thought the Devil’s handiwork was being done by fortune-tellers. I think they didn’t want Gypsies and other charlatans coming through town and ripping off the townsfolk.
It was an interesting case. I wish I remembered more details, or I’d provide a cite.