Last edited: April 21, 2007

 

Tennessee

  • Statute: Ruled Unconstitutional 1996
  • Case Law: Campbell v. Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262.

Jan. 26, 1996, Tennessee Appeals Court: Campbell v. Sundquist struck down the state's Homosexual Practices Act, ruling the state's same-sex-only sodomy law violated their right to privacy under Tennessee's Constitution, a right recognized in the 1992 case of Davis v. Davis. In the earlier case, the Tennessee Supreme Court had established a state constitutional right to privacy, which gave Mr. Davis the right to prevent his ex-wife's donation to a childless couple of frozen embryos created using his sperm. It held that the Tennessee right to privacy included a right not to procreate.

The decision was appealed by the state. The state Supreme Court denied the appeal without an opinion, thus leaving the court of appeals decision standing as the definitive ruling under the state constitution that the sodomy law is unconstitutional.

History

            1829     Tennessee adopts a new code that refers to the “crimes” against nature. It also refers to sodomy and buggery, but the latter term is included within the former. It is possible to interpret this law to outlaw oral sex, but no court decides the issue.

            1975     The Tennessee Supreme Court all but begs the Tennessee legislature to repeal the state’s sodomy law.

            1996     The Tennessee Supreme Court lets stand an appellate court’s decision striking down the state’s sodomy law on privacy grounds. This is the first time in U.S. history that a state’s highest court has declined to review a lower court decision striking down a sodomy law.

News

 

Courtesy of Bill Stosine, BCS41@aol.com

The Memphis Commercial Appeal of Jan. 27 [1996] reports that the Tennessee Court of Appeals ruled unanimously on Friday that the Tennessee law against homosexual sex violates the right of privacy in the state constitution. One judge partially dissented on standing grounds of the plaintiffs, but indicated his agreement with the other judges on the merits.

This was a test case brought on behalf of a group of lesbians and gay men by lead attorney Abby Rubenfeld, a Nashville trial lawyer who is currently serving as Chair of the ABA's Section of Individual Rights and Responsibilities and was formerly Legal Director of Lambda Legal Defense & Education Fund. (For you trivia fans, she is also the sister of Pee Wee Herman, a/k/a Paul Rubens.) Now it's up to the state to decide whether to take the case to the state Supreme Court. This is very important, because the appeals court refused to issue an injunction banning enforcement of the law. According to the article, the opinion by Judge W. Frank Crawford states: "We conclude that our citizens' fundamental right to privacy ("the right to be let alone") encompasses the right of the plaintiffs to engage in consensual, private, non-commercial, sexual conduct, because that activity 'involv(es) intimate questions of personal and family concern.'"

Opinions

Advocates

Brief of Amici Curiae

Campbell v. Sundquist - American Psychological Association Brief of Amici Curiae

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