In Rose v. Locke, the U.S. Supreme Court overturned a lower appeals court opinion, finding that the sexual act of cunnilingus, whether between heterosexuals or homosexuals, could be considered a violation of Tennessee’s “crimes against nature” law. The ruling encouraged a broad interpretation of sodomy laws in Tennessee and throughout the United States.
In Tennessee, in the early 1970’s, support for sodomy laws had been waning. A proposed comprehensive criminal code revision in 1973 would have abrogated common-law crimes and repealed the sodomy law, establishing the age of consent at sixteen years old. This new code, however, was never adopted by the Tennessee legislature. Because of this near miss, the conservative courts felt the need to reassert the importance of such laws.
A Tennessee man, named by the court as “Locke,” entered the apartment of a female neighbor late at night, saying that he needed to use the woman’s telephone. Soon after entering, he threatened her with a butcher knife, demanded that she disrobe, and twice performed cunnilingus upon her against her will. Among other charges, Locke was later convicted in Knox County’s criminal court of having committed a “crime against nature,” a violation of the criminal code of Tennessee. He was subsequently sentenced to between five and seven years in prison.
Then, a series of appeals began. In Locke’s first appeal to the Tennessee State Court of Criminal Appeals, Locke’s attorneys asserted that the Tennessee statute does not specifically reference cunnilingus as a “crime against nature.” Further, they claimed that the statute was “unconstitutionally vague.” This appeal failed, and the Supreme Court of Tennessee refused to review the case. Later, the Knox County District Court reconsidered the appeal and again ruled against Locke.
In 1975, however, Locke’s luck began to change. He appealed to the Sixth Circuit Court of Appeals, which validated his constitutional challenge. Believing that the statutory phrase “crimes against nature” could not “in and of itself withstand a charge of unconstitutional vagueness,” and being unable to find any Tennessee opinion previously applying the statute to the act of cunnilingus, the Court of Appeals held that the statute failed to give Locke “fair warning.” The judges decided that the fair warning requirement embodied in the Due Process Clause prohibited the states from holding an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” (Locke’s sexual assault of his neighbor was a different charge entirely, and was not under question in this case.)
In 1975, the State of Tennessee appealed to the U.S. Supreme Court. In this final case (decided on November 17) the judgment of the Sixth Circuit Court of Appeals, which found in Locke’s favor, was reversed. After much deliberation, Locke’s conviction was upheld, and the Court’s decision was definitive. First, the Court ruled that cunnilingus is covered by Tennessee’s “crimes against nature” statute, even though it is not expressly mentioned there. According to the ruling, the Due Process Clause requires only that the law should give sufficient warning that persons may conduct themselves so as to avoid forbidden acts. With this standard in mind, the Court judged that the phrase “crimes against nature” is not “unconstitutionally vague.” Locke could have discovered easily what acts were considered “crimes against nature” and could thus have avoided those acts.
Supreme Court justices Thurgood Marshall, Potter Stewart, and William J. Brennan wrote the dissenting opinion. They asserted that U.S. courts have consistently interpreted offenses referred to as “crimes against nature” as dealing specifically with anal sex. They further asserted that the Court of Appeals accurately ruled that, “courts have differed widely in construing the reach of ’crimes against nature’ to cunnilingus.” The statute, therefore was sufficiently vague as to have confused the public and specifically Locke.
Rose v. Locke had been strengthened by Bowers v. Hardwick (1986)
Though Locke remained the only person prosecuted by this interpretation of the law, and the charges against him were considered by some to be more heinous than his “crime against nature,” the ruling increased, virtually, the number of individuals who could be prosecuted under this statute. For example, any person, regardless of their sexual orientation or their gender, could be prosecuted as a result of the Court’s ruling. Also, the practice of cunnilingus within heterosexual marriage in general was not considered by any of the courts, revealing the distinct double standard of such statutes. The question arose as to why an act was a “crime against nature” for some people and a “right of marriage” for others.
Rose v. Locke also influenced many decisions from the 1970’s through the 1990’s. Many of these cases had little to do with sexuality, but rather questioned the “vagueness” of certain laws and statutes. Among the circuit court decisions citing Rose v. Locke were Mark Mueller and James I Stopple v. Michael Sullivan, Secretary of Wisconsin Department of Corrections (1998) responding to a vague antifraud statute, and Hope Clinic v. Ryan, James E. (1999), dealing with a vague law concerning so-called partial-birth abortion. At the U.S. Supreme Court level, Whalen v. United States (1980) and Marks v. United States (1977) both cited Rose v. Locke in the same manner.
-
Ball, Howard. The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childbearing, and Death. New York: New York University Press, 2002. -
Gruen, Lori, and George E. Panichas. Sex, Morality, and the Law. New York: Routledge, 1997. -
Moran, Leslie J. The Homosexual(ity) of Law. New York: Routledge, 1996. -
Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. Supreme Court. New York: Perseus Books, 2001. -
Painter, George. “The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States.” 2001. http://www.sodomylaws.org/ sensibilities/tennessee.htm. -
Pinello, Daniel R. Gay Rights and American Law. New York: Cambridge University Press, 2003. -
Rose v. Locke, 423 U.S. 48 (1975). http://laws .findlaw.com/us/423/48.html. -
Rubenstein, William B. Cases and Materials on Sexual Orientation and the Law: Lesbians, Gay Men, and the Law. 2d ed. St. Paul, Minn.: West, 1997. -
_______. Lesbians, Gay Men, and the Law. New York: New Press, 1993.
May 6, 1868: Kertbeny Coins the Terms “Homosexual” and “Heterosexual”
1885: United Kingdom Criminalizes “Gross Indecency”
January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians
September 4, 1957: The Wolfenden Report Calls for Decriminalizing Private Consensual Sex
1961: Illinois Legalizes Consensual Homosexual Sex
January 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights
August, 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex
October 18, 1973: Lambda Legal Authorized to Practice Law
1986: Bowers v. Hardwick Upholds State Sodomy Laws
January 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults
1992-2006: Indians Struggle to Abolish Sodomy Law
June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law