Issue: Whether a Tennessee "Homosexual Acts" statute prohibiting private sexual activity between consenting adults of the same sex violates the Tennessee Constitution's right to privacy

Index Topics: Sexual Orientation (anti-sodomy law)

Facts: A group of men and women challenged the Tennessee "Homosexual Acts" law criminalizing sexual behavior between same sex partners. The trial court granted the plaintiffs' motion for summary judgment, finding that the statute in question was unconstitutional because it violated the right to privacy protected by the Tennessee State Constitution. In issuing its order, the trial court relied extensively on Kentucky v. Wasson, 842 S.W. 2d 487 (1992) holding that (1) private sexual activity between persons of the same sex was protected by the state constitutional right to privacy, and (2) the state failed to show a sufficient compelling interest to uphold a criminal statute proscribing consensual homosexual sex acts protected by state constitutional privacy rights. (APA had participated in Kentucky v. Wasson as an amicus.)

APA's Position: APA submitted a modification of the Kentucky v. Wasson brief, arguing that: (1) homosexuality is common, unlikely to change, is not a disorder, and does not affect one's ability to contribute to society; (2) the proscribed sexual conduct is a normal and important aspect of the private sexual expression of gay men and lesbians, most of whom, like most heterosexuals, form long-lasting relationships in which sexuality is important; (3) the statute is harmful to the health and well-being of Tennessee citizens because is not a public health measure, but rather, is counterproductive to public health goals, is psychologically damaging to gay men and lesbians and is likely to reinforce hostility, discrimination, and violence against gay people and interfere with law enforcement efforts to deter violent crimes against gay men and lesbians; and (4) gay people share many of the characteristics of other groups accorded heightened protection under equal protection doctrine, e.g., there is a history and prevalence of prejudice and discrimination against gay people.

Result: The Tennessee Court of Appeals held that, pursuant to the state constitution, citizens' fundamental right to privacy encompassed the right to engage in consensual, private, non-commercial, sexual conduct, because that activity involved intimate questions of personal and family concern and that, therefore, the "Homosexual Acts" law was unconstitutional.