March 19, 2004
by Nick Morgan
March 19, 2004 04:47 PM
From Rhea county, Tennessee:
The measure, which the commission had passed unanimously Tuesday night, would have banned gays and lesbians from living in Rhea County. The proposal would have allowed the county to prosecute gays and lesbians for "crimes against nature."
The measure was unanimously rescinded two days later. This would make a great bar review hypothetical: how many federal constitutional violations can you spot?
The fact that it is the same county as the Scopes trial of course makes this doubly intriguing. Moreover, the articles circulating on the ordinance's passage also noted one county commissioner's view that gays "should not be allowed to live here." I think the constitutional issues involved in an ordinance along the lines of what is suggested by that remark are even more interesting. Gays and lesbians banned from the habitating in the county. EP, P-and-I, Liberty Clause, amazing days we live in.
I'm a little confused about just what the measure was -- did it actually prohibit people of same-sex orientation from living in the county, or did it just say that if they lived in the county and had sex, they would be prosecuted for it? If the latter, did it single out gays and lesbians for sodomy prosecution? Technically, these are worthwhile distinctions to make.
From the article, I couldn't tell exactly what it said. But it looked like they wanted to exile homosexuals, period. Though you'd have to have some way of proving homosexuality, so sodomy might figure in that way.
It made it a civil infraction (fine) for people to engage in the "abominable crime against nature" after the oldest statutory language. The "gays shouldn't be allowed to live here" language was a suggested next-step ordinance by a commissioner. I am guessing the ordinance passed banning gay sex as a sort of political statement. For even Rhea County must have an attorney that advises the corporation on clearly established Federal constitutional law. Therefore, they pass the ordinance, which raises feathers and gets in the news. Then they say, "Ut oh, we didn't know we couldn't do that," two days later after "advice of counsel to the effect that this is unconstitutional." I saw it as a political response to the extralegal county/municipality marriage license granting to same-sex couples. But who knows? I just know Bush has Tennessee locked up.
Oh, I thought the "abominable crime against nature" included sodomy by heterosexuals as well. Is that merely a misdemeanor against nature?
Mother Nature's more selective here in Tennessee. ;-)