Did a city in Tennessee ban being gay in public? It’s complicated

The town in the movie "Footloose" banned dancing. Did a city in Tennessee just ban being openly gay?

That’s what some social media users are saying, but the reality is more complicated.

Murfreesboro, Tennessee, made recent headlines over a city ordinance it passed in mid-June. "A city in Tennessee has banned being gay in public," California Gov. Gavin Newsom posted Nov. 16 on X. Meanwhile, anti-LGBTQ+ groups such as Gays Against Groomers argued that that Newsom’s comments amounted to "woke homophobia."

Statements from gay rights advocates and anti-LGBTQ+ voices have oversimplified what unfolded in this 162,000 population city in central Tennessee. The city’s original ordinance cited a 46-year-old statutory definition — that has since been amended — and it's unclear how broadly a court would have interpreted it, or whether it would be considered constitutional. 

Let’s break down what we know. 

On June 15, the Murfreesboro City Council, by a 5-1 vote, passed an ordinance to "promote public decency and maintain a family-friendly environment in public places." 

The ordinance said that, "No person shall knowingly while in a public space engage in indecent behavior, display, distribute, or broadcast indecent material, conduct indecent events, or facilitate any of the foregoing prohibited acts."

In August, the ordinance was used to remove several books from the county’s public library, meeting minutes show.

On its face, the law does not refer to or "ban" homosexuality in public, but how "indecent behavior" was defined worried LGBTQ+ rights advocates. 

"Indecent behavior means indecent exposure, public indecency, lewd behavior, nudity or sexual conduct as defined in Section 21-71 of the Murfreesboro City Code," read the ordinance’s definition. 

Section 21-71 is the ‘Definitions’ section of a chapter outlining inappropriate material for minors, and it has been a part of the city code since at least 1977. The section defined sexual conduct as "acts of masturbation, homosexuality, sexual intercourse," or physical contact with breasts, bottoms and genitals. A near-identical definition of sexual conduct also appeared in the city code’s section on public indecency.

"When read together with the 1977 Definition (of sexual conduct), the Ordinance defines any public ‘acts of … homosexuality’ as ‘indecent behavior,’' argued the Tennessee Equality Project, a statewide LGBTQ+ advocacy group, in their lawsuit against the city of Murfreesboro. 

But what is an "act of homosexuality"? 

The debate centers on that phrase’s scope.

Would banning "acts of … homosexuality" just have prohibited public sexual intercourse, which was already deemed public indecency for everyone? Or, as the Tennessee Equality Project feared, prohibit "anything from drag performances to advocacy materials … to an advertisement for Will & Grace reruns," or a same-sex couple holding hands. 

The meaning of "acts of … homsexuality" would ultimately be up to a court, said Jennifer Shinall, a Vanderbilt University law professor. When a statutory definition is ambiguous, courts consult dictionary definitions and legislative history from the time a bill was passed. 

That the definition seems to distinguish homosexuality from sexual intercourse and masturbation may mean it bans something beyond those sexual acts. 

"But what acts?" Shinall said. "Without an additional statutory definition, a court would be puzzled as well." 

It is also not clear that the inclusion of "acts of … homosexuality" was intentional.

It is common for state legislatures or local city councils to pass bills that refer to previous statutory definitions, Shinall said. "It is plausible…that somebody just didn't do their homework and didn't realize what was still in the code."

We reviewed the recorded city council meetings that included votes on the ordinance and heard no discussion of the specific definition of sexual conduct. No members of the city council responded to requests for comment. 

Murfreesboro’s city attorney did not respond to a request for comment. But Larry Flowers, Murfreesboro’s public safety public information officer, provided a statement on the city’s behalf about the measure.

"The city code provision you’re referencing originated in the 1940’s and was amended in the 1970’s," it read. "There is no record or recollection of it having even been enforced for purposes of homosexuality. Earlier this month, City Council enacted an ordinance updating the city’s code and removed the term ‘homosexuality’ from this provision." 

But even if the inclusion was intentional, Shinall said, someone could argue that Supreme Court precedent shows it to be unconstitutional. Recent Supreme Court cases "suggest that sexual orientation is a protected class" under the 14th Amendment’s equal protection clause, Shinall said. This means that laws cannot apply differently to homosexual and heterosexual people unless the government can prove it serves "an important governmental objective." 

"Public laws and public restrictions that target LGBTQ populations and do not similarly target people who identify as heterosexual, almost certainly run afoul of the equal protection clause," Shinall said.

And the city ultimately faced a legal challenge over the ordinance. On Oct. 6, the Tennessee Equality Project, represented by the American Civil Liberties Union, sued the city in federal district court arguing that this section of the ordinance violated the 14th Amendment. 

On Nov. 2, the council voted to remove the term "homosexuality" from two places in the city code. The meeting agenda explains that "the term homosexuality is an anachronism unenforceable under current law. Therefore, it should be excised from the definitions used in these ordinances." The change took effect Nov. 17, days after it made national news.

But the lawsuit continues. Gillian Branstetter, communications strategist for the ACLU, said the amended ordinance still "prohibits broad swaths of protected public speech, writing, and expressive behavior," which the organization argues is unconstitutional under the First Amendment.   

The lawsuit also addresses the city’s refusal to grant event permits or allow the Tennessee Equality Project to rent parks and recreation facilities for the group’s annual Pride parade.