Other outdated laws stay on the books long after they are actually enforced.

The U.S. Supreme Court can determine that a particular state law is unconstitutional, but it doesn’t actually repeal or erase the law in question. The court also cannot remove identical laws passed in other states.

Although the Supreme Court’s Obergefell v. Hodges ruling in 2015 gave same-sex couples the constitutional right to get married, for example, 32 states still have old laws prohibiting same-sex marriage. These laws would come back to life if the Supreme Court overturned Obergefell.

It has also been unconstitutional for states to criminalize same-sex sexual activity since the Supreme Court ruled in Lawrence v. Texas in 2003. Still, 12 states have laws that prohibit same-sex sexual relations. Those states could start prosecuting people for this activity if the Supreme Court reversed Lawrence.

This might seem unlikely, but sheriff’s deputies in Louisiana arrested men for “violating” the state’s unenforceable ban in 2015.

Alabama is another state that has been particularly slow to delete zombie laws. In 2000, it became the last state in the country to remove a statute banning interracial marriage, 33 years after the Supreme Court held in the Loving v. Virginia case that such laws were unconstitutional.

The Alabama state constitution also had provisions from 1901 prohibiting interracial marriage and requiring racial segregation in schools until the language was finally removed in 2022.

These zombie laws are repealed the same way that any other law is passed. The state legislature can pass a law deleting or replacing an older law with new language. Depending on the state, a popular referendum can also change state law and state constitutions.

As a result of the Arizona court’s ruling, both law and politics in the state have been thrown into disarray.

Due to an earlier order about how and when the 1864 law could go into effect, the law cannot be enforced for at least 45 days, and that delay may lengthen if different groups keep fighting about the case in court.

Arizona Governor Katie Hobbs has said that her office will not enforce the ban, and an executive order bars local prosecutors from charging people for violating it.

Both Republican and Democratic politicians in Arizona have said that they want to pass a new law restricting abortion in less severe ways than the 1864 law, but attempts to do so have resulted in angry disagreements on the floor of the Legislature.

The confusion and controversy in Arizona shows the broader problems of zombie laws. Most people in Arizona were surprised that the law exists. Many people on either side of the political spectrum do not like it, but the zombie has come alive in the aftermath of the state Supreme Court’s ruling. And each blockbuster Supreme Court decision runs the risk of setting more free in other states.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Dara E. Purvis, Penn State

Read more:
One year after the fall of Roe v. Wade, abortion care has become a patchwork of confusing state laws that deepen existing inequalities

As Ohio and other states decide on abortion, anti-abortion activists look to rebrand themselves as not religious

Abortion drug access could be limited by Supreme Court − if the court decides anti-abortion doctors can, in fact, challenge the FDA

Dara E. Purvis is affiliated with Population Connection Action Fund.