Campbell v. Sundquist

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

FILED

_______________________________________________ Jan. 26, 1996

PENNY CAMPBELL, ET AL, Cecil Crowson, Jr.

Appellate Court Clerk

Plaintiffs-Appellees,

Davidson Circuit No. 93C-1547

Vs. C.A. No. 01A01-9507-CV-00321

DON SUNDQUIST, Governor of

the State of Tennessee, et al,

Defendants-Appellants.

_________________________________________________________________________

FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

THE HONORABLE WALTER C. KURTZ, JUDGE

Charles W. Burson, Attorney General and Reporter

Jerry L. Smith, Deputy Attorney General

For Defendants-Appellants

Abby R. Rubenfeld of Nashville

For Plaintiffs-Appellees

Rebecca L. Brown, Robert K. Rasmussen, Susan L. Kay of Nashville

For Amicus Curiae, American Civil Liberties Union of Tennessee

James L. McHugh, Jr., Carolyn I. Polowy and Paul M. Smith

of Washington, D.C.; Irwin Venick of Nashville, For Amicus Curiae,

American Psychological Association, The National Association of

Social Workers, and The Tennessee Chapter of the National

Association of Social Workers

Glen G. Dukes, Jr., of Nashville

Suzanne Goldberg, Staff Attorney, LAMBDA Legal Defense

& Education of New York

For LAMBDA Legal Defense and Education and

The Tennesseans for Equality

Peggy June Griffin of Dayton, Amicus Curiae, Pro Se

AFFIRMED

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCURS:

DAVID R. FARMER, JUDGE

DISSENTS IN PART, CONCURS IN PART:

BEN H. CANTRELL, JUDGE

This appeal involves a constitutional challenge under the Tennessee

Constitution to Tennessee's Homosexual Practices Act, T.C.A. § 39-13-510 (1991).

On May 26, 1993, plaintiffs Penny Campbell, John Doe, Jane Doe, James Tallent,

and Christopher Simien,1 filed a "Verified Petition for Declaratory and Injunctive

Relief" in the Circuit Court for Davidson County, Tennessee, against defendants

Don Sundquist, Governor of the State of Tennessee,2 Charles W. Burson, Attorney

General of the State of Tennessee, and Victor S. Johnson, III, District Attorney

General for Davidson County, each in his official capacity. The complaint, as

amended, seeks a declaratory judgment pursuant to T.C.A. § 29-14-101, et seq.,

(1980) that the Homosexual Practices Act (HPA), a criminal law, violates plaintiffs'

right to privacy under Article I, Sections 1, 2, 3, 7, 8, 19, and 27 of the Tennessee

Constitution and their right to equal protection of the laws under Article I,

Section 8 of the Tennessee Constitution. Plaintiffs also seek to enjoin the

enforcement of the HPA.

Each of the plaintiffs admitted that they have violated the HPA in the past,

1

In the original Verified Petition for Declaratory and Injunctive Relief there

were six named plaintiffs. One plaintiff, Chadwick Freeman Presswood of Knox

County voluntary dismissed his claims against the defendants. In addition,

original plaintiff Jane Roe was replaced by plaintiff Jane Doe. The identity of

Plaintiff Jane Doe was placed under seal by the trial court due to Doe's

concerns that she would be evicted under her rental housing lease if her

violations of the Homosexual Practices Act were revealed publicly. Similarly, the

identity of plaintiff John Doe was placed under seal due to Doe's concern that

he would be fired from his job if his violations of the HPA became known to his

employer.

2

The original named defendant as Governor of the State of Tennessee was

Ned R. McWherter, who at the time of the filing of this suit was serving as

Governor. In January of 1995, Pursuant to T.R.A.P. 19(c) and Tenn.R.Civ.P. 24.04

Governor Don Sundquist was substituted as a party in place of former Governor

McWherter.

2

and that they intend to continue violating the HPA in the future. Plaintiffs allege

that they are each harmed by the HPA because it criminalizes their private,

intimate conduct, and that each of them believe they are threatened with

prosecution for violations of the statute, which could result in plaintiffs losing their

jobs, professional licenses, and/or housing should they be convicted.

Defendants answer filed September 24, 1993, denies that the HPA violates

any provision of the Tennessee Constitution.

On July 16, 1993, the defendants filed a Motion to Dismiss on the grounds,

inter alia, that the plaintiffs' petition sought an advisory opinion which the court

was not authorized to render, that none of the plaintiffs had been prosecuted

under the Act and therefore their allegations were speculative and

hypothetical, that the plaintiffs lacked standing, and that the issue presented

was not ripe or justiciable. On October 4, 1993, the trial court denied the

defendants' motion to dismiss, finding that the Declaratory Judgment Act, T.C.A.

§ 29-14-101, et seq., could properly be used to challenge the constitutionality

of statutes imposing criminal sanctions on individuals, and that the plaintiffs had

standing to bring this action. On October 4, 1994, the defendants moved for

summary judgment on the grounds, inter alia, that this case presented only a

question of law, that the applicable statute of limitations had elapsed, that this

action could not properly be maintained under the Declaratory Judgment Act,

and that the Tennessee Constitution was not violated by the HPA. On

December 7, 1994, the trial court entered an order denying the defendants'

motion for summary judgment.

On December 7, 1994, the plaintiffs filed a motion for summary judgment,

supported by affidavits of ten expert witnesses as well as discovery materials

previously filed with the court. On February 2, 1995, the trial court entered an

3

order granting summary judgment to the plaintiffs. In its order the trial court

found that private sexual activity between consenting adults of the same sex is

protected by the state constitutional right to privacy, that the State had failed

to show a compelling state interest sufficient to prohibit private sexual activity

between consenting adults of the same sex, and that the HPA is overbroad in

that it prohibits behavior which is constitutionally protected. The court

pretermitted the equal protection issue and declined to enjoin the enforcement

of the HPA.

The appellants timely filed a notice of appeal on February 24, 1995, and

present four issues for our review. As stated in the appellants' brief those issues

are:

Whether the trial court erred in ruling that the

plaintiffs could bring this action against state officials

under the Tennessee Declaratory Judgment Act?

Whether the trial court erred in ruling that there

was sufficient state action to allow the plaintiffs to

maintain their claims when plaintiffs admitted none of

them is or ever has been directly threatened with or

subjected to prosecution under T.C.A. § 39-13-510?

Whether the trial court erred in holding that the

plaintiffs filed this case within the applicable statute of

limitations when the record shows § 39-13-510

became effective on November 1, 1989, and no state

action other than passage of the act is alleged, and

this action was filed on May 26, 1993.

Whether the trial court erred in holding that the

right to privacy first announced in Davis v. Davis, 842

S.W.2d 588 (Tenn. 1992); encompasses the right to

engage in homosexual sodomy and that the state

must demonstrate a compelling state interest to

prohibit such activity?

The appellees also present two additional issues for our review. As stated

in the appellees' brief, those issues are:

Whether the "Homosexual Acts" Statute which

criminalizes certain private sexual acts between

4

consenting adults while leaving the very same acts

legal when engaged in by different adults, creates a

constitutionally-impermissible classification that

violates the right to equal protection of the laws

guaranteed by the Tennessee Constitution?

Whether an injunction should be issued against

enforcement of T.C.A. § 39-13-510 because it is an

unconstitutional criminal statute that imposes an

unwarranted restriction on the fundamental right to

privacy as protected by the Tennessee Constitution?

This case is before us pursuant to the trial court's grant of summary

judgment to the plaintiffs. A trial court should grant a motion for summary

judgment only if the movant demonstrates that there are no genuine issues of

material fact and that the moving party is entitled to judgment as a matter of

law. Tenn.R.Civ.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v.

Hackett, 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary

judgment bears the burden of demonstrating that no genuine issue of material

fact exists. Byrd, 847 S.W.2d at 210. When a motion for summary judgment is

made, the court must consider the motion in the same manner as a motion for

directed verdict made at the close of the plaintiff's proof; that is, "the court must

take the strongest legitimate view of the evidence in favor of the nonmoving

party, allow all reasonable inferences in favor of that party, and discard all

countervailing evidence." Id. at 210-11. In Byrd, the Tennessee Supreme Court

stated:

Once it is shown by the moving party that there is no

genuine issue of material fact, the nonmoving party

must then demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute

to warrant a trial. [citations omitted]. In this regard,

Rule 56.05 provides that the nonmoving party cannot

simply rely upon his pleadings but must set forth

specific facts showing that there is a genuine issue of

material fact for trial.

Id. at 211. (emphasis in original). Disputed facts "must bear directly and

5

materially upon the legal elements of the claim or defense being tested by the

summary judgment motion." Phan v. Sanders, 818 S.W.2d 18, 19 (Tenn. App.

1991) (quoting Macon County Livestock Market, Inc. v. Kentucky State Bank,

Inc., 724 S.W.2d 343, 348 (Tenn. App. 1986)).

T.C.A. § 39-13-510 (1991) provides:

Homosexual acts- It is a Class C misdemeanor

for any person to engage in consensual sexual

penetration, as defined in § 39-13-501(7), with a

person of the same gender.

T.C.A. § 39-13-501(7) (1991) provides:

"Sexual penetration" means sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other

intrusion, however slight, of any part of a person's body

or of any object into the genital or anal openings of

the victim's, the defendant's, or any other person's

body, but emission of semen is not required. . . .

I. Standing to Maintain This Action Under the Declaratory Judgment Act

We will first address the appellants' arguments regarding the plaintiffs'

standing to bring this action under the Declaratory Judgment Act. In doing so

we consider plaintiffs' first two issues together. The appellants argue that the

plaintiffs do not have standing to maintain this action, because none of the

plaintiffs have been prosecuted under the HPA; therefore, none of them have

suffered an injury as a result of the statute. The appellants further argue that of

the twenty-five arrests reported for violations of T.C.A. § 39-13-510, twelve

resulted from public activity, and one resulted from activity involving a juvenile.

The appellants contend that while the disposition of the remaining twelve arrests

is unknown, the appellees have failed to show that there have been any arrests

for purely private, consensual, adult, sexual activity; therefore, the appellees are

asking this Court to render an advisory opinion regarding a hypothetical future

6

occurrence.

The appellees, on the other hand, adamantly assert that they have

standing based on the fact that they face possible criminal penalties for

engaging in constitutionally protected conduct. The appellees argue that

because they are homosexuals, the statute imposes an actual threat of

prosecution upon them, and this threat is an injury which is "not common to the

body of citizenry." Therefore, they have standing under Tennessee's Declaratory

Judgment Act to maintain this suit.

The trial court found that the plaintiffs have standing to bring this action.

The court relied on Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565

(1927), and found that each of the plaintiffs has a distinct interest in the HPA, not

shared by the general public, such that they are entitled to maintain an action

to determine the constitutionality of the HPA under the Declaratory Judgment

Act. We agree.

In Morristown Emergency & Rescue Squad, Inc., v. Volunteer Dev. Co.,

Inc., 793 S.W.2d 262 (Tenn.App. 1990), this Court stated, "the essential element

of standing is an allegation that the ordinance will inflict some injury on the

complainant not common to the body of citizenry." Id. at 263 (citing Patten v.

Mayor of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901)); accord, Parks v.

Alexander, 608 S.W.2d 881, 891 (Tenn.App. 1980)(To have standing plaintiffs must

allege "special interest or injury peculiar to themselves as opposed to the public

in general."). In Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 300 S.W. 565 (1927),

the plaintiff brought a declaratory judgment action seeking to challenge the

constitutionality of Chapter 104 of the Private Acts of 1925 which criminalized the

operation of pool and billiard halls for profit in counties with a population of less

than 10,015 or more than 10,025 people. Id. at 279-80. The plaintiffs, who owned

7

a billiard hall3 and had been threatened with prosecution by the sheriff, brought

a declaratory judgment action arguing that the Act violated their rights under

the Tennessee Constitution. The Court allowed the maintenance of the action,

even though the plaintiffs had not been prosecuted under the Act, and found

that the Act violated the plaintiffs' constitutional rights under the Tennessee

Constitution. The Court, addressing the plaintiffs' standing to bring the action,

stated:

The complainants show by the averments of their bill

that they have a special interest in the question of the

constitutionality of the penal statute described in the

bill, distinct from the interest of the public generally, in

that their investment and property rights will be directly

affected and injured by its enforcement.

We are of the opinion that a person so situated

is entitled to bring and maintain an action for the

determination of the proper construction or

constitutionality of such a statute, under the provisions

of the Declaratory Judgments Law.

Erwin, 156 Tenn. at 281-82.

In Erwin, unlike the case at bar, plaintiffs had been threatened with

prosecution by the sheriff. However, as noted above, the Court's decision

concerning standing was premised on plaintiffs' special interest. The sheriff's

threat of prosecution was significant only as to the sheriff being named as a

party defendant. We think the plaintiffs' status as homosexuals confers upon

them an interest distinct from that of the general public with respect to the HPA,

and that they are therefore entitled to maintain an action under the Declaratory

Judgment Act even though none of them have been prosecuted under the

HPA. This conclusion is also supported by Leech v. American Booksellers Ass'n,

582 S.W.2d 738 (Tenn. 1979), discussed below. In addition to raising

3

The billiard hall was located in Unicoi County which at the time had a

population which subjected the county to the provisions of the Act.

8

issues of standing, the appellants also argue that this constitutional suit cannot

be brought against the State, because there is no enabling statute which

authorizes the suit. The appellants first argue that this Court does not have

jurisdiction to entertain this action, because Article I, Section 17 of the Tennessee

Constitution prohibits a suit against the State unless such suit is brought in strict

compliance with an enabling statute. Article I, Section 17 of the Tennessee

Constitution provides, "Suits may be brought against the State in such manner

and in such courts as the legislature may by law direct." The appellants argue

that because there is no enabling statute which authorizes a suit against the

State on state constitutional grounds, Article I, Section 17 serves to bar the

plaintiffs from maintaining this action. The appellants, relying on Northern

Telecom, Inc. v. Taylor, 781 S.W.2d 837 (Tenn. 1989), further argue that the

Tennessee Declaratory Judgment Act, 29-14-101, et seq., cannot constitute an

enabling statute allowing the plaintiffs to bring this suit, because the State is not

specifically mentioned in the Act.

We disagree. T.C.A. § 29-14-103 provides:

Construction of statutes and written instruments.-- Any

person interested under a deed, will, written contract,

or other writings constituting a contract, or whose

rights, status, or other legal relations are affected by a

statute, municipal ordinance, contract, or franchise,

may have determined any question of construction or

validity arising under the instrument, statute,

ordinance, contract, or franchise and obtain a

declaration of rights, status or other legal relations

thereunder. (Emphasis supplied).

The Declaratory Judgment Act "should be liberally construed in favor of

the person seeking relief in a proper case to the end that rights and interests be

expeditiously determined." Tennessee Farmers Mut. Ins. Co. v. Hammond, 290

S.W.2d 860, 862 (Tenn. 1956). Although the Tennessee Declaratory Judgment

Act is to be liberally construed, certain limitations have been placed upon the

9

power of courts to entertain suits brought under the Act. T.C.A. § 20-13-102

(1992) prohibits courts from entertaining suits against the state "or against any

officer of the state acting by authority of the state, with a view to reach the

state, its treasury, funds or property." In addition, a court should not entertain a

suit under the Declaratory Judgment Act if the resolution of the dispute would

require a "judicial investigation of disputed facts." Standard Accident Ins. Co. v.

Carvin, 400 S.W.2d 235, 236 (quoting Newsum v. Interstate Realty Co., 152 Tenn.

302, 305, 278 S.W. 56 (1925)). The existence of a justiciable controversy is also a

jurisdictional prerequisite to the maintenance of an action under the Act. Parks

v. Alexander, 608 S.W.2d 881, 891-92 (Tenn.App. 1980)(citing Jared v. Fitzgerald,

183 Tenn. 682, 689, 195 S.W.2d 1, 4 (1946)). In view of the remedial purpose of

the Tennessee Declaratory Judgment Act, we view the Act as an enabling

statute to allow a proper plaintiff to maintain a suit against the State challenging

the constitutionality of a state statute. The appellants' reliance upon Northern

Telecom, Inc. v. Taylor, 781 S.W.2d 837 (Tenn. 1989), and Carter v. McWherter,

859 S.W.2d 343 (Tenn.App. 1993), for the proposition that an action under the

Declaratory Judgment Act may not be maintained against the State, is

misplaced. In Northern Telecom the plaintiff brought a declaratory judgment

action against the State Commissioner of Revenue seeking a refund of taxes

which the plaintiff had paid under protest. Id. at 838. The Supreme Court held

that the plaintiff could not maintain the action against the State, because the

action was designed "to reach the state, its treasury, funds, or property." Id. at

839-40. In ruling on the Declaratory Judgment issue the Supreme Court, quoting

Hill v. Beeler, 199 Tenn. 325, 332-33, 286 S.W.2d 868, 871 (1956), stated,

The Declaratory Judgment Act [ § 29-14-101], et seq.,

does not permit the filing of a suit against the State to

construe statutes so it seems to us that there is no

10

authority for the suit but that Code Section [20-13-102]

expressly forbids such an action.

Northern Telecom, 781 S.W.2d at 840.

The appellants rely on the above quoted statement in Northern Telecom

in forwarding their argument that the instant action is barred, because it is an

action against the State which seeks to construe a statute. We disagree,

because this argument takes Northern Telecom out of the context in which it

was decided. The Declaratory Judgment Act expressly provides that courts are

empowered to declare rights under, and construe, statutes. Hill, Northern

Telecom, and Carter are inapplicable to the declaratory judgment question

presented by the case before us. In all three of these cases in which the Courts

held that the respective plaintiffs' actions could not be maintained under the

Declaratory Judgment Act, the plaintiffs' actions were designed, in some fashion

or other, to reach the state treasury, state funds, or state property, and thus the

actions were clearly barred by T.C.A. § 20-13-102. In the instant case, the

plaintiffs do not seek to reach the state treasury, funds, or property, and

therefore, this case is distinguishable from the line of cases cited by the

appellants.

In any event, we think our Supreme Court has clearly established that a

plaintiff may maintain a declaratory judgment action challenging the

constitutionality of a state statute. In Leech v. American Booksellers

Association, 582 S.W.2d 738 (Tenn. 1979), the plaintiffs brought declaratory

judgment actions challenging the constitutionality of the Tennessee Obscenity

Act of 1978. Our Supreme Court, affirming the trial courts, held that the Act was

unconstitutional. Although jurisdiction to entertain the cases was not raised, it

is implicit from the Court's ruling that the Court has jurisdiction to consider a

constitutional challenge to a state statute. Thus, under Leech, the plaintiffs in this

11

case may properly maintain a declaratory judgment action challenging the

constitutionality of Tennessee's Homosexual Practices Act.

II. The Statute of Limitations as a Bar to This Suit

We next address the appellants' assertion that this cause of action is

barred by the statute of limitations. The appellants assert that the plaintiffs'

cause of action is barred by T.C.A. § 28-3-104(a), the one year statute of

limitations for personal torts and malpractice actions. The appellants argue that

there must be a statute of limitations on the plaintiffs' cause of action, and since

the action is closely analogous to the actions limited by § 28-3-104(a), the

plaintiffs' suit is barred since it was commenced more than one year after the

cause of action accrued.

The plaintiffs contend that this argument fails not only because the

defendants have failed to cite a single case in support of this argument, but also

because there is no statute of limitations on challenging an unconstitutional

penal statute. We agree.

III. Right to Privacy Under the Tennessee Constitution

The appellants argue that even if this Court does have jurisdiction to hear

this case, the cause of action must fail, because the right to privacy under the

Tennessee Constitution does not encompass the right to engage in homosexual

conduct. In their brief and argument, the appellants rely heavily on the United

States Supreme Court case of Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841,

92 L.Ed.2d 140 (1986). In Bowers, respondent Michael Hardwick was charged

with violating Georgia's sodomy statute4 for committing that act with another

4

The statute provided in pertinent part:

"(a) A person commits the offense of sodomy when he performs or

submits to any sexual act involving the sex organs of one person and the mouth

or anus of another . . . .

(b) A person convicted of the offense of sodomy shall be punished by

12

male in Hardwick's bedroom. Id. at 2842. Hardwick was not prosecuted for

violating the statute, but he felt that the statute placed him in "imminent danger

of arrest." Id. Hardwick brought suit in federal district court to challenge the

constitutionality of the statute asserting that the statute violated his fundamental

right to privacy under the United States Constitution. The district court

granted the defendant's motion to dismiss for failure to state a claim upon which

relief can be granted. Id. The Court of Appeals for the Eleventh Circuit

reversed, holding that the Georgia statute violated Hardwick's fundamental

rights, because his sexual activity constituted private and intimate association

that is beyond the reach of state regulation under the Ninth Amendment and

the Due Process Clause of the Fourteenth Amendment. Id. at 2843. The United

States Supreme Court granted certiorari and reversed the Eleventh Circuit,

holding that Georgia's sodomy law did not violate Hardwick's federal

constitutional rights. The Court held that the right to engage in homosexual

conduct would not be afforded heightened judicial protection, because it

does not fall into the category of a right which is "implicit in the concept of

ordered liberty," Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct.

149, 151, 152, 82 L.Ed. 288 (1937)), or "deeply rooted in this Nation's history and

tradition," 106 S.Ct. at 2844 (quoting Moore v. East Cleveland, 431 U.S. 494, 503,

97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977)). The court reasoned that

homosexuality was criminalized in this Nation as early as the adoption of the Bill

of Rights, thus to argue that the right to engage in such conduct is "deeply

rooted in this Nation's history" or "implicit in the concept of ordered liberty" is

"facetious." 106 S.Ct at 2846.

imprisonment for not less than one nor more than 20 years . . . . " Ga. Code Ann.

§ 16-6-2 (1984).

13

The appellants argue that the parameters of protection of the right to

privacy under the Tennessee Constitution are identical to those of the Federal

Constitution, and since the federal right to privacy does not encompass the right

to engage in homosexual conduct, neither does the right to privacy under the

Tennessee Constitution. The appellants argue that the "precise source of the

state right to privacy" is found in Article I, Section 8 of the Tennessee

Constitution,5 and that Tennessee courts have consistently interpreted the

protections afforded Tennessee citizens under Article I, Section 8 to be

"substantially identical" or "synonymous" with the Due Process Clauses of the Fifth

and Fourteenth Amendments to the United States Constitution.6 The appellants

assert that to date, our Supreme Court has interpreted the right to privacy under

the Tennessee Constitution to guarantee Tennessee citizens only the same

rights as the federal right to privacy (that is, rights in the areas of heterosexual

marriage, procreation, and child rearing). Therefore, the right to privacy in

Tennessee should continue to protect only those areas of conduct which are

protected by the federal right to privacy. The appellants contend that since

Bowers established that the federal right to privacy only protects those matters

which are "deeply rooted in this Nation's history and tradition" or "implicit in the

concept of ordered liberty," the Tennessee right to privacy similarly only protects

those same matters. The appellants, tracking the language of the Bowers Court,

5

Article I, Section 8 of the Tennessee Constitution provides:

Sec. 8. No man to be disturbed but by law.--That no man shall be taken or

imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or

exiled, or in any manner destroyed or deprived of his life, liberty or property, but

by the judgment of his peers or the law of the land.

6

In support of this proposition, the appellants cite Railroad v. Crider, 91

Tenn 489, 501-02, 19 S.W. 618 (1892); State v. Hale, 840 S.W.2d 307, 312 (Tenn.

1992); Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978); Daugherty v. State,

216 Tenn. 666, 674, 393 S.W.2d 739, 743 (1965).

14

further argue that it is "facetious" to "claim that the right to engage in

homosexual sodomy" is either implicit in this State's concept of ordered liberty

or deeply rooted in this State's history and tradition.

The appellees, on the other hand, argue that since Bowers is analytically

unsound, and the Tennessee Supreme Court has stated that "there is no reason

to assume that there is a complete congruency" between the federal and

Tennessee rights to privacy, Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), the

Tennessee right to privacy does encompass the right of the plaintiffs to engage

in private, consensual, non-commercial, sexual conduct. The appellees also

argue that Tennessee constitutional jurisprudence and Tennesseans' historical

hostility to excessive governmental interference in their personal lives, clearly

provide a basis for concluding that the Tennessee right to privacy confers

greater rights upon its citizens than does the corresponding federal right to

privacy.

We note at the outset that in determining the parameters of the right to

privacy under the Tennessee Constitution, neither this Court nor the Tennessee

Supreme Court is bound by the United States Supreme Court's decision in Bowers

v. Hardwick. It is settled constitutional law that where the Tennessee Constitution

and the federal constitution contain similar or identical provisions, the Tennessee

Supreme Court may "impose higher standards and stronger protection than

those set by the federal constitution." Miller v. State, 584 S.W.2d 758, 760 (Tenn.

1979); Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738, 745 (Tenn.

1979). In Miller, our Supreme Court stated:

[A]s to Tennessee's Constitution, we sit as a court of last

resort, subject solely to the qualification that we may

not impinge upon the minimum level of protection

established by [United States] Supreme Court

interpretations of the federal constitutional

guarantees. But state supreme courts, interpreting

15

state constitutional provisions, may impose higher

standards and stronger protections than those set by

the federal constitution. It is settled law that the

Supreme Court of a state has full and final power to

determine the constitutionality of a state statute,

procedure, or course of conduct with regard to the

state constitution, and this is true even where the state

and federal constitutions contain similar or identical

provisions.

Miller, 584 S.W.2d at 760 (citations omitted).

The right to privacy in Tennessee was first expressly recognized in

Tennessee in 1992 in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).7 In Davis our

Supreme Court was presented with the question of whether Junior Davis had

a right to prevent his ex-wife, Mary Sue Davis, from donating "frozen embryos" to

a childless couple. The "frozen embryos" were created from the sperm of Mr.

Davis and the ova of Mrs. Davis and were originally intended to be implanted

into the uterus of Mrs. Davis who was incapable of conceiving children

otherwise. At some point the marital relations of the parties went awry, and

following the parties divorce, they could not agree on the disposition of the

frozen embryos. Mr. Davis argued that to allow Mrs. Davis to donate the

embryos would in effect force him to become a father against his will. Our

Supreme Court ruled that the Tennessee Constitution afforded Mr. Davis a right

to privacy which included the right not to procreate. Id. at 601. The court

stated,

The right to privacy, or personal autonomy ("the right

to be let alone"), while not mentioned explicitly in our

state constitution, is nevertheless reflected in several

sections of the Tennessee Declaration of Rights,

including provisions in Section 3 guaranteeing

7

Since Davis, the Supreme Court has dealt with the right to privacy in four

cases all of which construed the right in the context of parental rights. See Hawk

v. Hawk, 855 S.W.2d 573 (Tenn. 1993); Broadwell by Broadwell v. Holmes, 871

S.W.2d 471 (Tenn. 1994); Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994); Simmons

v. Simmons, 900 S.W.2d 682 (Tenn. 1995).

16

freedom of worship ("no human authority can, in any

case whatever, control or interfere with the rights of

conscience"); those in Section 7 prohibiting

unreasonable searches and seizures ("the people shall

be secure in their persons, houses, papers, and

possessions, from unreasonable searches and

seizures"); those in Section 19 guaranteeing freedom of

speech and press ("free communication of thoughts

and opinions, is one of the invaluable rights of man,

and every citizen may freely speak, write, and print on

any subject, being responsible for the abuse of that

liberty"); and the provisions in Section 27 regulating the

quartering of soldiers ("no soldier shall, in time of

peace, be quartered in any house without the

consent of the owner").

Obviously, the drafters of the Tennessee Constitution

of 1796 could not have anticipated the need to

construe the liberty clauses of that document in terms

of the choices flowing from in vitro fertilization

procedures. But there can be little doubt that they

foresaw the need to protect individuals from

unwarranted governmental intrusion into matters such

as the one now before us, involving intimate questions

of personal and family concern. Based on both the

language and the development of our state

constitution, we have no hesitation in drawing the

conclusion that there is a right of individual privacy

guaranteed under and protected by the liberty

clauses of the Tennessee Declaration of Rights.

Undoubtedly, that right to privacy incorporates

some of the attributes of the federal constitutional right

to privacy and, in any given fact situation, may also

share some of its contours. As with other state

constitutional rights having counterparts in the federal

bill of rights, however, there is no reason to assume

that there is a complete congruency. Compare and

contrast, e.g., State v. Jacumin, 778 S.W.2d 430 (Tenn.

1989), with Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,

76 L.Ed.2d 527 (1983).

Davis, 842 S.W.2d at 600.

As stated above, the appellants argue that the "precise source" of the

right to privacy is Article I, Section 8 of the Tennessee Constitution, and that since

Tennessee courts have interpreted Article I, Section 8 "synonymously" with the

Federal Due Process Clauses, the right to privacy in Tennessee does not

17

encompass the right to engage in homosexual conduct. We disagree. Our

Supreme Court has not stated that Article I, Section 8 is the precise source of the

right to privacy, it has stated that the right to privacy is "ground[ed]" in the

"concept of liberty" in our Constitution. Davis, 842 S.W.2d at 598; Hawk v. Hawk,

855 S.W.2d 573, 579 (Tenn. 1993). Article I, Section 8's "liberty" provision is

certainly part of that "concept of liberty," and it protects and guarantees the

right to privacy, but it is not the sole and precise source of the right to privacy.

The Davis Court clearly stated that the textual sources of the right to privacy

include Sections 3, 7, 19, and 27 of the Declaration of Rights contained in Article

I. 842 S.W.2d at 600. Thus, the construction which the Supreme Court has

placed on Article I, Section 8 does not restrict the right to privacy, because the

right to privacy does not stem solely from Article I, Section 8. Moreover, the

cases which the appellants have cited for the proposition that Article I, Section

8 is "synonymous" with the Due Process Clauses of the Federal Constitution

overstates the holdings of these cases. These cases stated that the "law of the

land" provision of Article I, Section 8 is "synonymous" with the Federal Due

Process Clauses; the Courts did not purport to discuss the "liberty" component

of the Section in the context of the right to privacy. See Railroad v. Crider, 91

Tenn 489, 501-02, 19 S.W. 618 (1892) (stating "law of the land" clause is

"substantially identical" to Federal Due Process Clauses); State v. Hale, 840

S.W.2d 307, 312 (Tenn. 1992)("law of the land" clause and "due process of law"

clause used in the Fifth and Fourteenth Amendments "are synonymous phrases

meaning one and the same thing"); Dearborne v. State, 575 S.W.2d 259, 262

(Tenn. 1978)(same); Daugherty v. State, 216 Tenn. 666, 674, 393 S.W.2d 739, 743

(1965)(same). In any event, Davis v. Davis clearly established that "there is no

reason to assume that there is a complete congruency" between the Tennessee

18

and the federal right to privacy. 842 S.W. 2d at 600.

Both the Tennessee Constitution and this State's constitutional

jurisprudence establish that the right to privacy provided to Tennesseans under

our Constitution is in fact more extensive than the corresponding right to privacy

provided by the Federal Constitution. We agree with the plaintiffs that the

Tennessee Constitution and especially the Declaration of Rights in Article I,

indicate a strong historic commitment by the citizens of this State to individual

liberty and freedom from governmental interference in their personal lives. Our

Supreme Court noted this commitment in Davis. The Court, commenting on

Sections 1 and 2 of the Declaration of Rights,8 stated,

Indeed, the notion of individual liberty is so deeply

imbedded in the Tennessee Constitution that it, alone

among American constitutions, gives the people, in

the face of governmental oppression and interference

with liberty, the right to resist that oppression even to

the extent of overthrowing the government.

842 S.W.2d at 599.

The Homosexual Practices Act prohibits sexual contact between

individuals of the same gender regardless of the location of the contact. That

is, as written, the statute is sufficiently broad to prohibit private sexual activity

8

Section 1 and 2 of Article I provide as follows:

Section 1. All power inherent in the people--Government under their control. -

-That all power is inherent in the people, and all free governments are founded

on their authority, and instituted for their peace, safety, and happiness; for the

advancement of those ends they have at all times, an inalienable and

indefeasible right to alter, reform, or abolish the government in such manner as

they may think proper.

Section 2. Doctrine of nonresistance condemned. - -That government being

instituted for the common benefit, the doctrine of non-resistance against

arbitrary power and oppression is absurd, slavish, and destructive of the good

and happiness of mankind.

Tenn. Const. art I, §§ 1, 2.

19

which takes place behind closed doors in an individual's home. The sanctity of

the home has long been recognized by both federal law and Tennessee law,9

and both bodies of law have drawn distinctions between actions which are

9

Over seventy years ago, our Supreme Court stated,

At the very foundation of our State is the right of

people to be secure in their persons, houses, papers,

and possessions. Infringement of such individual rights

cannot be tolerated until we tire of democracy and

are ready for communism or a despotism. The

enforcement of no statute is of sufficient importance

to justify indifference to the basic principles of our

government. The better class of our ancestors at one

time thought there could be no more heinous sin than

questioning the divine right and will of the king. Later

the majority of them regarded all dealings with the

exiled house of Stuart as calling for the most severe

methods of repression, and many of a later generation

believed that the libels of Wilkes and his associates

upon the ministry were so dangerous to good order

that they should be suppressed by any means.

Likewise there was little general sympathy with the

earlier violations of the imposts laws in the colonies.

On these occasions the government proceeded

with a heavy hand, and indiscriminate searches and

seizures were made in the hunt for evidence upon

which to try offenders. There is little doubt but that at

the beginning of each of these crises predominant

moral sentiment supported the crown. But violent

methods outraged and antagonized the people, and

either made impossible or postponed the end sought

to be reached. Much turmoil arose, much blood

flowed, but little progress was made in law

enforcement. The observance of no law has been

promoted by tyranny, nor do we suppose ever will be,

in an English speaking community.

These lessons from the past, as well as the

Constitution which rules us all, admonish that this court

should set itself unfalteringly against any disturbance

of the security of the people in "their persons, houses,

papers and possessions" by unreasonable searches

and seizures.

Craven v. State, 148 Tenn. 517, 519-20, 256 S.W. 431 (1923).

20

committed in the privacy of the home and those committed in public.10 We

think it is consistent with this State's Constitution and constitutional jurisprudence

to hold that an adult's right to engage in consensual and noncommercial sexual

activities in the privacy of that adult's home is a matter of intimate personal

concern which is at the heart of Tennessee's protection of the right to privacy,

and that this right should not be diminished or afforded less constitutional

protection when the adults engaging in that private activity are of the same

10

In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),

the United States Supreme Court held that while the State of Georgia could

criminalize the public dissemination of obscene material, it could not criminalize

the private possession of obscene material. The court stated that the

justifications for statutes regulating obscenity "do not . . . reach into the privacy

of one's own home." Id. at 1248; See also, Bowers v. Hardwick, 106 S.Ct. at 2853

(Blackmun, J., dissenting) ("Indeed, the right of an individual to conduct intimate

relationships in the intimacy of his or her own home seems to me to be the heart

of the Constitution's protection of privacy.")

In State v. Graham, 35 Tenn. 133 (1855) our Supreme Court considered the

propriety of a conviction for uttering profanity in public. The Court held that the

public nature of the offense made it an indictable offense. The Court did not

specifically address swearing in the context of the privacy of the home, but it

did draw a distinction between acts which are committed in private and those

which are committed in public and thereby become harmful and criminally

punishable. The court stated:

Sobriety in public, as laid down by Blackstone in his

Commentary, is a duty every man owes to the

community, and the violation of which is indictable.

Not so as to private acts of drunkenness-- that is only

hurtful to himself and not his neighbors.

The principle pervading all our laws, in relation

to the description of offences under consideration, is,

that, with the private views of citizens, the community,

as such, will not concern itself, but leave them to the

lash of conscience and the frowns of neighbors; but

when their vicious acts are public, they will be dealt

with as crimes, because of their tendency to disturb

and annoy others, and exert a baneful influence upon

the morals and habits of the community.

Id. at 138-39 (emphasis in original).

21

gender.11

Since we have determined that the Homosexual Practices Act constitutes

a governmental intrusion into the plaintiffs' right to privacy, we must next address

the question of whether this intrusion is unwarranted and therefore,

unconstitutional. Since the right to privacy is protected by the Tennessee

Constitution, it is therefore a fundamental right. State v. Tester, 879 S.W.2d 823,

828 (Tenn. 1994). Legislation which regulates the exercise of a fundamental right

will be reviewed under a strict scrutiny analysis. Hawk v. Hawk, 855 S.W.2d 573,

579, 579 nn. 8, 9 (Tenn. 1993). To withstand strict scrutiny, the legislation must be

justified by a "compelling state interest" and must be narrowly drawn to

advance that interest. Id.

The appellants offer essentially five state interests that are allegedly

advanced by the Homosexual Practices Act.12 First, the Act discourages

activities which cannot lead to procreation. Second, the Act discourages

citizens from choosing a lifestyle which is socially stigmatized and leads to

higher rates of suicide, depression, and drug and alcohol abuse. Third, the Act

discourages homosexual relationships which are "short lived," shallow, and

initiated for the purpose of sexual gratification. Fourth, the Act prevents the

spread of infectious disease, and fifth, the Act promotes the moral values of

Tennesseans.

None of the foregoing asserted State interests are sufficient to save the

11

We express no opinion as to the constitutionality of the criminalization of

the conduct at issue in this case when that conduct is engaged in publicly or

commercially, nonconsensually, or by minors, as those questions are not before

us and implicate State interests not presented by the instant case.

12

The appellants make no argument as to whether these interests

constitute "compelling interests" which justify the infringement of a fundamental

right. The appellants simply offered these interests as justifications for the statute

in their answers to plaintiffs' interrogatories.

22

Homosexual Practices Act under strict scrutiny analysis, because either the

asserted interest is not a compelling one, or the Act is not narrowly drawn to

advance that interest. The first asserted interest, that the statute discourages

activity which cannot lead to procreation, is neither a compelling nor even a

constitutionally valid justification for the Act. The United States Supreme Court's

decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 35 L.Ed.2d 510

(1965), establishes that the State cannot outlaw certain intimate sexual activities

of its citizens simply because those activities do not or cannot lead to

procreation. Moreover, in Davis v. Davis, our Supreme Court unequivocally

stated that the right to privacy includes the right to procreational autonomy

which provides citizens of this state "the right to procreate and the right to avoid

procreation." 842 S.W.2d at 601.

The second justification for the statute, that it discourages a socially

stigmatized lifestyle which leads to higher rates of suicide, depression, and

substance abuse, also fails to save the statute under strict scrutiny analysis. We

think there is little doubt that the State's attempt to rescue homosexuals from a

socially unpopular lifestyle does not provide a compelling reason or even a

valid reason for infringement of the fundamental right of adults to engage in

private, noncommercial, consensual sex. See Palmore v. Sidoti, 104 S.Ct. 1879,

1882 (1984) (Denying an individual a protected right simply because exercise of

that right will result in subjecting individual to private prejudice and bias,

operates to give the effect of the law to the prejudice and bias and is

impermissible); O' Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2494, 45

L.Ed.2d 396 (1975)("Mere public intolerance or animosity cannot justify the

deprivation of a person's physical liberty."). While we agree that the State has

a compelling interest in preventing substance abuse and suicide among its

23

citizens, there is insufficient evidence in the record before us to demonstrate that

the Homosexual Practices Act advances this interest. Moreover, even if we

assume that the State can punish a "lifestyle," the record before us indicates that

there is no one "homosexual lifestyle" in which all or even a majority of

homosexuals engage; thus, with respect to this justification, the statute is overly

broad by infringing upon the privacy rights of homosexuals who do not engage

in a lifestyle encompassing alcoholism, drug abuse, and suicide.

The State's third justification for the statute is that it prevents homosexuals

from entering into short lived, shallow, and promiscuous relationships which

weaken the "fabric" of the community at large. The appellants argue that

homosexual relationships are instable and that this instability has consequences

for others in society. We think this justification also fails to rescue the Homosexual

Practices Act under strict scrutiny analysis, because there is insufficient evidence

in the record to prove that homosexual relationships are short lived and shallow

and thereby weaken the "fabric" of the community.13

The State's fourth asserted justification for the statute is that it prevents the

spread of infectious disease. We agree that the State certainly has a

compelling interest in preventing the spread of infectious disease among its

citizens, however, the Homosexual Practices Act is not narrowly tailored to

13

Justice Blackmun reached a similar conclusion in his dissent in Bowers

in which he stated:

Nor can . . . [Georgia's sodomy statute] be justified as a[n] . . . exercise of

Georgia's power to "protect the public environment," Paris Adult Theatre I, 413

U.S., at 68-69, 93 S.Ct., at 2641. Certainly, some private behavior can affect the

fabric of society . . . but we have ample evidence for believing that people will

not abandon morality, will not think any better of murder, cruelty and

dishonesty, merely because some private sexual practice which they

abominate is not punished by the law."

Bowers, 106 S.Ct. at 2855 (Blackmun, J., dissenting) (citations omitted).

24

advance this interest. The statute prohibits all sexual contact between people

of the same gender even if the people involved are disease free, practicing

"safe sex," or engaging in sexual contact which does not contribute to the

spread of disease.14 Moreover, the appellees and the American Public Health

Association, as amicus curiae, forward a compelling argument that the statute

is actually counterproductive to public health goals. The appellees introduced

evidence that due to fear of prosecution, some homosexual individuals infected

with sexually transmitted diseases do not seek medical treatment for the

infection or report the infection, and that others are reluctant to be tested to

determine if they are infected.

The final asserted justification for the Homosexual Practices Act is that the

Act advances the morals of Tennessee citizens. The appellants assert that by

criminalizing homosexual acts, the citizens of this State, through their elected

representatives, have indicated that they "find the practice of homosexuality

offensive and violative of their own moral standards, whether those standards

are founded in religious conviction or are derived from a system of secular moral

philosophy." The appellants argue that it is axiomatic that our State's laws may

constitutionally reflect the moral values and standards of its citizens and may

prohibit conduct which is violative of those moral values and standards.15 In

14

We also note that T.C.A. § 68-10-107 (1992) serves to prevent the spread

of infectious diseases by criminalizing the transmission of a sexually transmitted

disease.

15

In the Defendants' Responses to Plaintiffs' First Set of Interrogatories, the

defendants assert as a justification for the Homosexual Practices Act, the

following:

Government often takes steps to protect its citizens from participating in

activities that will injure them or their families and loved ones. Many current

Tennessee statutes are designed to do just this. For example, the blue laws,

pornography laws, gambling laws and prostitution laws are all designed to

25

support of this proposition, the appellants cite to the majority opinion in Bowers,

in which the Court stated, "[t]he law . . . is constantly based on notions of

morality, and if all laws representing essentially moral choices are to be

invalidated under the Due Process Clause, the courts will be very busy indeed."

Bowers, 478 U.S. at 196, 106 S.Ct. at 2846.

The appellees, on the other hand, argue that the moral values of

Tennessee citizens are unsubstantiated by the record in this case, and in any

event, majoritarian morality is not a valid basis for curtailing the actions of an

unpopular minority in the absence of any evidence that the actions of the

minority harm other members of society. In support of this proposition the

appellees cite to Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15

(1972), in which the United States Supreme Court stated, "A way of life that is

odd or even erratic, but interferes with no rights or interests of others, is not to be

condemned because it is different." Yoder, 406 U.S. at 223-24, 92 S.Ct at 1537.

The appellees also quote the majority opinion in Roe v. Wade, 410 U.S. 113, 93

S.Ct. 705, 35 L.Ed.2d 147 (1973), in which the Court stated that the Constitution

"is made for people of fundamentally differing views, and the accident of our

finding certain opinions natural and familiar, or novel, and even shocking ought

not to conclude our judgment upon the question of whether statutes

embodying them conflict with the Constitution of the United States." Roe, 410

U.S. at 113, 93 S.Ct. at 709 (quoting Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct.

penalize certain activities solely because the citizens of this State have a moral

conviction that engaging in these activities will be injurious in some manner and

will produce one or more undesirable social conditions. The statutory grounds

set out for obtaining a divorce in Tennessee also demonstrate moral choices

that the citizens of this State have translated into legislation. The Homosexual

Acts statute is just one example in a long litany of statutes the purpose of which

is to reinforce certain moral values and to minimize harmful social conditions.

26

539, 547, 49 L.Ed. 937 (1905) (Holmes, J., dissenting)).

In reviewing these arguments we note that the propriety of the infusion of

majoritarian morality into our laws has been debated since the inception of this

Nation, and this debate has resulted in judicial conclusions that are as vastly

different as the contexts in which these debates have arisen. In this case, both

the appellants and the appellees present compelling arguments regarding the

extent to which our laws may reflect majoritarian morality. We recognize that

many of the laws of this State reflect "moral choices" regarding the standard of

conduct by which the citizens of this State must conduct themselves. However,

we also recognize that when these "moral choices" are transformed into law,

they have constitutional limits. In this case, since the law in question infringes

upon the plaintiffs' right to privacy, a fundamental right, the law must be justified

by a compelling state interest and must be narrowly drawn to advance that

interest. Even if we assume that the Homosexual Practices Act represents a

moral choice of the people of this State, we are unconvinced that the

advancement of this moral choice is so compelling as to justify the regulation

of private, noncommercial, sexual choices between consenting adults simply

because those adults happen to be of the same gender.

Our neighboring state, Kentucky, among other states, has reached a

similar conclusion. In Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992), the

Supreme Court of Kentucky considered the propriety of upholding a statute

similar to T.C.A. § 39-13-510, on the basis of advancing the morals of

Kentuckians. The court concluded that the will of the majority could not be

imposed upon the minority absent some showing of harmful consequences

created by the actions of the minority. Wasson, 842 S.W.2d 496-97. The court

stated,

27

It may be asked whether a majority, believing its own

happiness will be enhanced by another's conformity,

may not enforce its moral code upon all. The answer

is that, first, morality is an individual, personal - one

might say, private - matter of conscience, and dwells

inviolate within the fortress of Section 5: "No human

authority shall in any case whatever, control or

interfere with rights of conscience." Second, the

Constitution promotes no particular morality, however

popular. Indeed, the New World having been sought

out by those fleeing state and/or majoritarian

persecution, our systems of government are

predicated upon such imperatives as that recognized

in Kentucky Constitution Section 2: "Absolute and

arbitrary power over the lives, liberty and property of

freemen exist nowhere in a republic, not even in the

largest majority." Third, morality is a matter of values.

Insofar as it comprises a moral code, the Constitution

embraces - yea, embodies - immutable values of

individual freedom, liberty, and equality.

Wasson, 842 S.W.2d at 502-03 (Combs, J., concurring). The Wasson court found

the Pennsylvania Supreme Court's holding in Commonwealth v. Bonadio, 415

A.2d 47 (Penn. 1980), persuasive. In Bonadio, the Pennsylvania Supreme Court

also considered the issue of upholding its sodomy statute on the basis of morals

and the state's police powers; the court stated:

The threshold question in determining whether the

statute in question is a valid exercise of the police

power is to decide whether it benefits the public

generally. The state clearly has a proper role to

perform in protecting the public from inadvertent

offensive displays of sexual behavior, in preventing

people from being forced against their will to submit

to sexual contact, in protecting minors from being

sexually used by adults, and in eliminating cruelty to

animals. To assure these protections, a broad range

of criminal statutes constitute valid police power

exercises, including proscriptions of indecent

exposure, open lewdness, rape, involuntary deviate

sexual intercourse, indecent assault, statutory rape,

corruption of minors, and cruelty to animals. The

statute in question serves none of the foregoing

purposes and it is nugatory to suggest that it promotes

a state interest in the institution of marriage. The

Voluntary Deviate Sexual Intercourse Statute has only

one possible purpose: to regulate the private conduct

of consenting adults. . . .

28

With respect to regulation of morals, the police

power should properly be exercised to protect each

individual's right to be free from interference in

defining and pursuing his own morality but not to

enforce a majority morality on persons whose conduct

does not harm others. "No harm to the secular

interests of the community is involved in atypical sex

practice in private between consenting adult

partners." MODEL PENAL CODE § 207.5 - Sodomy &

Related Offenses. Comment (Tent. Draft No. 4, 1955).

Many issues that are considered to be matters of

morals are subject to debate, and no sufficient state

interest justifies legislation of norms simply because a

particular belief is followed by a number of people, or

even a majority. Indeed, what is considered to be

"moral" changes with the times and is dependent

upon societal background. Spiritual leadership, not

the government, has the responsibility for striving to

improve the morality of individuals. Enactment of the

Voluntary Deviate Sexual Intercourse Statute, despite

the fact that it provides punishment for what many

believe to be abhorrent crimes against nature and

perceived sins against God, is not properly in the

realm of the temporal police power.

Bonadio, 415 A.2d at 49-50.

This Court has previously observed: "This Court does not sit as moral

arbiters making judgments on what is acceptable social behavior." In re

Parsons, C.A. No. 02A01-9403-JV-00037, 1995 WL 442587, at *5 (Tenn. Ct. App.

W.S. July 27, 1995). The Court must scrupulously avoid imposing the moral beliefs

of its members on anyone. The Court's opinion should not in any way be

deemed to condone or condemn any particular lifestyle or the moral behavior

associated therewith. The Court's role is to see that the liberty of our citizens is

fully protected to the extent authorized by our Constitution and laws.

Pursuant to this state's constitution and constitutional jurisprudence, 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

29

questions of personal and family concern." Therefore, we hold that the

Homosexual Practices Act, T.C.A. § 39-13-510, which criminalizes such conduct,

is unconstitutional.

Finally, we reach the appellees argument that because the HPA is

unconstitutional, an injunction should be issued against its enforcement. It is

clear that this Court may not enjoin pending or threatened prosecutions for the

violation of the criminal laws of this State. Erwin Billiard Parlor v. Buckner, 156

Tenn. 278, 300 S.W. 565 (1927); Lindsey v. Drane, 154 Tenn. 458, 285 S.W. 705

(1926); Brackner v. Estes, 698 S.W.2d 637 (Tenn. App. 1985). This argument is

without merit.

Accordingly, the judgment of the trial court is affirmed. Costs of appeal

are assessed against appellants.

____________________________________

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

________________________________

DAVID R. FARMER, JUDGE

BEN H. CANTRELL, JUDGE,

PARTIAL DISSENT IN SEPARATE

OPINION

30