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A Murfreesboro, Tennessee, ordinance caused a stir over claims it would ban "being gay in public," but the story is not so simple. (Shutterstock) A Murfreesboro, Tennessee, ordinance caused a stir over claims it would ban "being gay in public," but the story is not so simple. (Shutterstock)

A Murfreesboro, Tennessee, ordinance caused a stir over claims it would ban "being gay in public," but the story is not so simple. (Shutterstock)

Grace Abels
By Grace Abels November 28, 2023

If Your Time is short

  • In June, Murfreesboro, Tennessee, passed an ordinance banning public “indecent behavior.” Claims that the law would “ban being gay in public” stemmed from decades-old definitions in the city code. City code said “indecent behavior” includes “sexual conduct,” under which “acts of … homosexuality,” fell.

  • The term “acts of … homosexuality” has been in the code since the 1970s. Courts would determine the term’s meaning and scope, but a legal expert said current legal precedent would likely make a law like this unconstitutional. 

  • Following a lawsuit, the Murfreesboro City Council voted to remove the term “homosexuality” from the two places in the city code. 

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. 

The law’s scope is unclear.  

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." 

Murfreesboro City Council reversed course

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.

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Our Sources

Interview with Jennifer Shinall, Law professor at Vanderbilt University, Nov. 20, 2021

Email interview Larry Flowers, Public Safety Public Information Officer for the City of Murfreesboro, Nov. 20, 2023

Email interview with Chris Sanders, Executive Director of the Tennessee Equality Project, Nov. 16, 2023

Email interview with Gillian Branstetter, Communications Strategist at the American Civil Liberties Union, Nov. 28, 2023 

The New Republic, "A City in Tennessee Banned Public Homosexuality—and We All Missed It," Nov. 14, 2023

X Post, Nov. 16, 2023

Instagram post, Nov. 17, 2023

City of Murfreesboro, "Ordinance 23-0-22," June 15, 2023

City of Murfreesboro, "Ordinance 23-0-31," Nov. 2, 2023

U.S. Census Bureau, "QuickFacts: Murfreesboro city, Tennessee," accessed Nov. 20, 2023

American Civil Liberties Union Tennessee, "Advocates File Lawsuit Challenging Murfreesboro Efforts to Prevent BoroPride," Oct. 6, 2023

City of Murfreesboro, "Section 21-71 - Definitions," Sept. 11, 2023

American Civil Liberties Union Tennessee, "Tennessee Equality Project Foundation, Inc., v. The City of Murfreesboro, Tennessee - Verified Complaint," Oct. 6, 2023

American Civil Liberties Union Tennessee, "Murfreesboro Officials Amend Anti-LGBTQ+ Ordinance in Response to Advocates’ Lawsuit," Nov. 17, 2023

X post, Nov. 15, 2023

City of Murfreesboro, "Section 21-23 - Public indecency," Dec. 22, 2016

City of Murfreesboro, "Section 21-71 - Definitions," Dec. 22, 2016

City of Murfreesboro, "Section 21-23 - Public indecency.," Sept.11, 2023

City of Murfreesboro, "Section 21-71 - Definitions." Sept. 11, 2023

The Daily Wire, "Newsom Lies About Tennessee City Law ‘Banning’ Being Gay, Gets Dragged," Nov. 17, 2023

MSNBC, "A Tennessee city abandons its ban on being gay in public," Nov, 18, 2023

City of Murfreesboro, "City Council Meeting (6/15/23)," accessed Nov. 21, 2023,

City of Murfreesboro, "City Council Meeting (5/25/23)," accessed Nov. 21, 2023

Rutherford County Library, "Board of Directors Meeting Minutes," Aug. 28, 2023

Oyez, "United States v. Windsor," June 26, 2013

National Archives, "14th Amendment to the U.S. Constitution: Civil Rights," 1868

Oyez, "Obergefell v. Hodges," June 26, 2015

City of Murfreesboro, "Murfreesboro City Council Regular Meeting Agenda," Nov. 2, 2023

Daily News Journal, "City's threat to deny future events angers, insults BoroPride organizers," Nov. 3, 2022

Anti-Defamation League, "Online Amplifiers of Anti-LGBTQ+ Extremism," Jan. 24, 2023

Daily News Journal, "Library supporters upset by board pulling 4 books say they're 'fighting against censorship'" Aug. 29, 2023

Erin in the Morning, "City Ordinance Banning Public Homosexuality Reaches Rutherford County Libraries," Nov. 7, 2023

Justia, "Tennessee Equality Project Foundation, Inc. v. The City of Murfreesboro, Tennessee et al," Oct. 6, 2023

City of Murfreesboro, "City Council Meeting (11/2/23)," accessed Nov. 21, 2023 

Scribd, "BoroPride Letter," accessed Nov. 28, 2023

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