Massachusetts and Fornication: From Bible Commonwealth to Repeal

Why was Massachusetts called a Bible Commonwealth?

Massachusetts and its New England neighbors are called the "Bible Commonwealths" because their founders looked to scripture to guide much of public life, including criminal law. The Library of Congress exhibition on religion and the founding of the American Republic uses that label and explains that criminal laws in these colonies were based mainly on the Old Testament, while many civil laws and court procedures followed English common law ^[1].

The colony's founders were Puritans, English Protestants who wanted to purge the Church of England of what they saw as Catholic residue. Beginning in 1630, as many as 20,000 of them emigrated, most of them to New England, hoping to build "a city on a hill" that would show their model of the church could succeed ^[1]. They were non-separating Congregationalists: each congregation governed itself, and full members were expected to describe a personal conversion experience ^[1].

Scripture was visible in the statute books themselves. The Library of Congress displays the 1672 printing of The General Laws and Liberties of the Massachusets Colony, in which biblical references stand alongside the statutes ^[1]. The exhibition also notes that the Puritan leader John Winthrop brought the first known King James Bible to Massachusetts in 1630 ^[1].

Timeline

1. 1630Large-scale Puritan migration to New England begins; up to 20,000 people arrive in the following years.
2. 1642A Massachusetts Bay law lets judges punish fornication by ordering marriage, a fine or corporal punishment.
3. 1648The Laws and Liberties of Massachusetts gather the colony's statutes, including capital laws that cite Leviticus and Deuteronomy.
4. 1672The General Laws and Liberties of the Massachusets Colony are printed with scripture cited in the statutes.
5. 1879A state statute bans giving away contraceptives; it becomes chapter 272, section 21 of the General Laws.
6. March 22, 1972Eisenstadt v. Baird describes fornication as a Massachusetts misdemeanor with a $30 fine or three months in jail.
7. July 25, 2018Chapter 155 of the Acts of 2018 repeals the fornication and adultery sections, along with old abortion and contraception bans.

How did Puritan Massachusetts punish fornication?

Puritan Massachusetts punished fornication with a flexible set of penalties chosen by the judges: forced marriage, a fine, corporal punishment, or a combination. The rule appears in the Laws and Liberties of Massachusetts of 1648 under the heading "Fornication," with a marginal date of 1642 ^[2]. It provided that a man who committed fornication with a single woman "shall be punished either by enjoining to marriage, or fine, or corporal punishment," at the discretion of the Court of Assistants ^[2].

The option of ordering marriage suggests that fornication between two unmarried people was seen as a wrong that marriage could partly repair. The same code treated adultery very differently. Its capital laws provided that if a person committed adultery with a married or espoused woman, "the adulterer & adulteress shall surely be put to death," citing Leviticus 18:20 and 20:10 and Deuteronomy 22:23-27 ^[3].

The contrast shows how the Bible Commonwealth graded sexual offenses. Adultery violated an existing marriage and, in the colonists' reading of the Mosaic law, merited the harshest sanction; fornication between two single people did not. The modern edition of the 1648 code used here, published in an open textbook on American legal history, modernizes the spelling and punctuation but keeps the structure of the original ^[2][3].

Court practice and the shaming punishments that accompanied these laws are covered in more depth in fornication in Puritan New England. The point for Massachusetts is that fornication entered its criminal law at the very start of English settlement and stayed there.

How did the offense survive into the 20th century?

The offense survived because Massachusetts carried it forward from one codification to the next until it sat in chapter 272, section 18 of the General Laws ^[4]. The penalties softened over time. By 1972, fornication was a minor misdemeanor, as the Supreme Court's description that year would show ^[4].

Neighboring provisions grew up around it. Section 21 of the same chapter, which made it a crime to exhibit or give away contraceptives and carried up to five years in state prison, stemmed from a statute of 1879 ^[4]. In 1966 the legislature added section 21A, which allowed registered physicians and pharmacists to supply contraceptives to married persons ^[4]. Together, the fornication section, the contraception ban and its exception drew the same line between married and unmarried people that the Supreme Court would examine in 1972.

Adultery remained the more serious offense. A 2006 note in the Suffolk Law Review described it as a felony in Massachusetts, punishable by up to three years in state prison ^[5]. The same note identified Commonwealth v. Stowell, decided a little more than twenty years earlier, as the most recent successful prosecution; the Supreme Judicial Court acknowledged that the crime had fallen into "a very comprehensive desuetude" but upheld the conviction as an enforceable expression of public policy ^[5]. No comparable modern fornication prosecution is documented in the sources reviewed for this article.

What did Eisenstadt v. Baird reveal about the law?

Eisenstadt v. Baird revealed that fornication was still a crime in Massachusetts in 1972, but one the Supreme Court refused to treat as a serious justification for other restrictions. The case, decided on March 22, 1972, arose from William Baird's conviction for handing a young woman a package of contraceptive foam at the end of a lecture at Boston University; the indictment dates the act to April 6, 1967 ^[4]. The Supreme Judicial Court of Massachusetts had upheld that conviction by four votes to three ^[4].

The state argued, among other things, that the contraception law helped deter premarital sex. The Court, in an opinion by Justice William Brennan, rejected that account ^[4]. It quoted the federal appeals court's description of the offense: fornication was a misdemeanor in Massachusetts, "entailing a thirty dollar fine, or three months in jail" ^[4]. The Court found it hard to believe that the legislature would punish the distributor of a contraceptive with up to five years in prison, twenty times the ninety-day sentence of the person supposedly being deterred ^[4].

The decision then went further. Whatever rights people have to obtain contraceptives, the Court held, must be the same for married and unmarried people, and it spoke of the right of "the individual, married or single" to be free from unwarranted government intrusion into decisions about bearing or begetting a child ^[4]. Chief Justice Warren Burger dissented, and Justices Lewis Powell and William Rehnquist took no part ^[4].

Eisenstadt did not strike down the fornication statute. It left section 18 on the books but showed how little weight the offense now carried. The full case is analyzed in Eisenstadt v. Baird and unmarried couples.

When did Massachusetts repeal it?

Massachusetts repealed its fornication law in 2018, through chapter 155 of the Acts of 2018, "An Act relative to reproductive health." The official session-law record lists the act, which began as Senate bill 2260, as approved on July 25, 2018 ^[6]. Its second section repealed sections 14 and 18 through 21 of chapter 272, a block that included both adultery (section 14) and fornication (section 18) ^[6].

The act carried an emergency preamble declaring it necessary for the immediate preservation of the public health ^[6]. WBUR reported Governor Charlie Baker's signing in a story dated Friday, July 27, 2018, describing a bill that repealed a series of antiquated laws, including the state's 1845 abortion ban, limits on contraception, and bans on adultery and fornication that had not been enforced for generations ^[7].

The repeal had a nickname. Supporters called it the NASTY Women Act, for "Negating Archaic Statutes Targeting Young Women" ^[7]. Proponents argued, WBUR reported, that removing the pre-Roe abortion ban was necessary in case a more conservative U.S. Supreme Court overturned Roe v. Wade; according to Emily's List, Massachusetts was one of ten states that still had such a ban on the books ^[7]. Baker said the state would "not compromise on a woman's right to her own decisions" ^[7].

Today the state's trial court law libraries state that it is not against the law for unmarried consenting adults to have sex, citing the 2018 repeal ^[8]. More than three and a half centuries separated the 1642 law from its final removal.

What other morals laws did the state drop?

The same act dropped the criminal ban on adultery and the old restrictions on contraception and abortion. Adultery, punished by death in the capital laws of 1648 and later a felony, ceased to be a crime with the repeal of section 14 ^[3][5][6]. The mass.gov guidance notes that adultery can still play a role in divorce proceedings, even though it is no longer prosecuted ^[8].

The contraception provisions were rewritten rather than simply deleted. Section 21, the 1879 ban under which Baird had been convicted, was repealed, and section 21A was replaced by a new text allowing authorized health care providers to prescribe contraceptives and pharmacists to dispense them, while banning sales through vending machines ^[4][6]. The act also amended the informed-consent provision of chapter 112, section 12Q, on abortion ^[6].

Other offenses in chapter 272 were not part of the 2018 repeal. The mass.gov page still lists provisions on polygamy, incest, the "crime against nature" and "unnatural and lascivious acts," and explains that courts have narrowed the use of some of them ^[8]. The 2018 act was therefore targeted, not a wholesale rewrite of the state's morals offenses.

How does Massachusetts compare with other states?

Massachusetts' repeal opened a run of state repeals in the late 2010s and early 2020s. Utah followed in 2019: Senate Bill 43 passed the House 41 to 32 on March 6, 2019, was signed on March 27 and took effect on May 14, 2019 ^[9]. Idaho repealed its fornication and adultery laws through Senate Bill 1325, signed on March 22, 2022 and effective July 1, 2022 ^[10]. The Utah story is told in Utah's 1973 fornication law and its 2019 repeal.

The patterns differ. Massachusetts removed its law as part of a reproductive-rights package, Utah through a criminal-code cleanup, and Idaho through a broader revision of its sex-crimes chapter ^[7][9][10]. In each case, lawmakers were removing a statute that was no longer being enforced.

What sets Massachusetts apart is the length of the record. Its fornication law can be traced from a 1642 colonial statute rooted in a scriptural view of sexual order, through a century of contraception laws built on the same marital line, to a Supreme Court opinion that treated the offense as a thirty-dollar misdemeanor ^[2][4]. Few American offenses have such a continuous history in a single jurisdiction.

Frequently asked questions

What did the Puritans do to people who committed fornication?

Under a 1642 Massachusetts law, judges could order the couple to marry, impose a fine, inflict corporal punishment, or combine these penalties. The law was printed in the Laws and Liberties of 1648. The choice of penalty was left to the discretion of the Court of Assistants.

Was adultery a capital crime in colonial Massachusetts?

Yes. The capital laws in the Laws and Liberties of 1648 provided that a man and a married or engaged woman who committed adultery should be put to death. The text cited Leviticus 18:20 and 20:10 and Deuteronomy 22:23-27.

What was the penalty for fornication in Massachusetts in 1972?

A thirty-dollar fine or three months in jail. The Supreme Court quoted that description, from a federal appeals court, in Eisenstadt v. Baird on March 22, 1972, and also called the offense a ninety-day misdemeanor.

When was the Massachusetts fornication law repealed?

In 2018. Chapter 155 of the Acts of 2018, approved on July 25, 2018 according to the official record, repealed chapter 272, section 18. It removed the adultery offense at the same time.

What was the NASTY Women Act?

It was the nickname of the 2018 Massachusetts act, standing for "Negating Archaic Statutes Targeting Young Women." Supporters chiefly wanted the state's 1845 abortion ban off the books in case Roe v. Wade was overturned. It also repealed old contraception limits and the adultery and fornication offenses.

Is adultery still a crime in Massachusetts?

No. The 2018 act repealed chapter 272, section 14, the criminal adultery statute. Adultery can still matter in divorce proceedings, according to the state's trial court law libraries.

Why did Massachusetts keep the law so long?

Because the law was rarely enforced and repeal required a deliberate act of the legislature. WBUR reported that the adultery and fornication bans had not been enforced for generations. They were finally removed in 2018 as part of a broader reproductive-health bill.