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The Guardian - US
The Guardian - US
Ava Sasani

‘Archaic’: the Tennessee town that made homosexuality illegal

A brown hand holds a rainbow flag in the foreground, with the white pillars of a DC building.
The ordinance in Murfreesboro was essentially a covert ban on LGBTQ+ existence. Photograph: Saul Loeb/AFP/Getty Images

For five months this year, homosexuality was prohibited in a Tennessee college town.

In June, the city council of Murfreesboro enacted an ordinance outlawing “indecent exposure, public indecency, lewd behavior, nudity or sexual conduct”. The rule did not explicitly mention homosexuality, but LGBTQ+ people in the town quickly realized that the ordinance references 21-72 of the city code, which categorizes homosexuality as an act of indecent sexual conduct.

The ordinance was essentially a covert ban on LGBTQ+ existence.

Erin Reed, one of the first and only national journalists to cover the ordinance earlier this year, noted that Murfreesboro was not “the only community that has these old archaic bits of code that target homosexuality”.

Earlier this month, following a legal challenge from the ACLU of Tennessee, the government of Murfreesboro removed “homosexuality” from the list of acts defined as “public indecency” by the city code. The small victory came after officials repeatedly refused to issue permits for the BoroPride Festival, citing the new ordinance.

Despite the ACLU’s recent win, advocates warn that the story of Murfreesboro represents a new frontier in anti-LGBTQ+ lawmaking. Republican state and local leaders across the US south are reviving vague, sometimes decades-old rules on “indecency” and “obscenity” as a bludgeon against queer life.

Kasey Meehan, the program director of the Freedom to Read program at PEN America, said the organization has seen “several threats to free expression all under the guise of obscenity prevention” in “Tennessee and Florida especially”.

Tennessee is one of three states that passed laws in 2023 that would specifically ban drag artists from performing in certain public spaces.

Last year, Florida’s administration threatened to revoke the liquor license of R House, a Miami-based restaurant that hosts drag performances. In the legal complaint against the venue, the governor, Ron DeSantis, cited a 1947 Florida supreme court ruling that said “men impersonating women” could constitute a public nuisance.

On a stage in front of a white curtain, a handful of drag performers appear to move and speak or sing, one holding a sign that says ‘Nashville, 50 years behind’.
Members of theater group Friends of George’s perform after a federal judge temporarily blocked a bill aiming to restrict drag performances, in Memphis, Tennessee, on 21 April 2023. Photograph: Karen Pulfer Focht/Reuters

Judges in both Florida and Tennessee, including one appointed by former president Donald Trump, have blocked the statutes following lawsuits from drag queens and civil rights groups.

In his ruling declaring the Tennessee drag ban unconstitutional, the US district judge Thomas Parker wrote that the first amendment does not protect against obscenity: “But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law. Simply put, no majority of the [US] supreme court has held that sexually explicit – but not obscene – speech receives less protection than political, artistic or scientific speech.”

Though drag bans have broadly failed to withstand legal challenges this year, Republicans have refocused on a second enemy in their war against “obscenity”: public school libraries.

In April, the Tennessee governor, Bill Lee, a Republican, signed a bill imposing criminal penalties on booksellers or distributors who provide “obscene” books to public schools in the state. The state does not offer clear guidelines on what kind of books and written materials are considered “obscene”.

“Schools continue to reiterate that the books being pulled out of these libraries meet no legal or colloquial definition of obscenity,” Meehan said.

Fearing prosecution for violating the notoriously vague and confusing state law, Tennessee schools have removed a range of “books with LGBTQ characters, books that include characters of color, books that talk about race and racism”, Meehan said.

While the Republican pursuit of book bans typically focuses on public school students, Murfreesboro’s indecency ordinance led to the censorship of books available to adult patrons of the public library.

“We’re not talking about a kid’s library, this is a public library, these are books that adults can no longer check out,” said Reed.

Three white woman talk and stand before a table holding piles of books.
Kris Smith, Kat Daniels and Deb Svec talk before a read-in against book bans, at Common Ground Bookstore in Tallahassee, Florida, on 21 March 2023. Photograph: Colin Hackley/Reuters

In August, Reed watched Rutherford county officials vote to remove four books from the public library system, citing the Murfreesboro ordinance. Earlier this month, those same county officials – undaunted by the ACLU’s lawsuit – considered removing all books that might violate Murfreesboro’s rules on indecency.

“It’s important to understand that, from the perspective of the far right, the guardrails are off,” Jasmine Beach-Ferrara, the executive director of the Campaign for Southern Equality, said.

She and other LGBTQ+ advocates in the south worry that Murfreesboro is the canary in the coalmine. A ban on homosexuality and censorship of library books available to adults, Beach-Ferrara said, signals that the GOP is increasingly willing to erode rights that “we as advocates previously thought, oh, there’s no way they come after that”.

Fueling this increasingly bold attack on LGBTQ+ rights, Beach-Ferrara said, is a rightwing Christian hate group called the Alliance Defending Freedom (ADF).

The ADF, which was founded in 1994 by a group of “leaders in the Christian community”, according to its website, has funded efforts both to restrict abortion and ban books that address LGBTQ+ topics, two of the group’s marquee causes.

A Guardian investigation revealed that the ADF saw a huge increase in its funding between 2020 and 2021. The group funneled some of that money into a slew of smaller anti-LGBTQ+ and anti-abortion groups across the US.

ADF attorneys proved the might of anti-obscenity laws earlier this year when the group sued to block the use of mifepristone, a common and safe abortion drug. The ADF cited an 1873 obscenity law called the Comstock Act, which prohibited sending abortifacients in the mail.

A Trump-appointed federal judge in Texas, Matthew Kacsmaryk, sided with the plaintiffs, issuing a preliminary injunction on 7 April suspending the FDA’s 23-year-old approval of mifepristone.

In late April, the US supreme court blocked the court-ordered restrictions on mifepristone, but a lawsuit brought by anti-abortion groups targeting the pill continues. Despite the temporary nature of the injunction, the ADF’s reliance on a 150-year-old, previously dormant law showed how “obscenity” could be used to advance the modern far-right movement.

Beach-Ferrara said extremist groups like the ADF “are willing to use every mechanism and every lever available to them” to argue against protections for LGBTQ+ people and women alike.

Despite the ADF’s influence on rightwing state legislatures and courts, strict anti-obscenity laws, especially those targeting the fundamental rights of women and LGBTQ+ people, have incited widespread backlash on the local level. While reporting on Murfreesboro, Reed met a local man who created after the county removed four “obscene” books from the public library system. Murfreesboro residents can select any of those banned books and have them delivered for free.

“There’s a lot of queer people in Murfreesboro. There are people who fought hard to have their Pride parade,” said Reed. “No matter where you look, people are fighting back against these laws, because it’s not something that people are clamoring for.”

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