Nashville District Attorney Glenn Funk helps expunge sodomy convictions.

Some Tennesseans Have Criminal Records for Being Gay. One Attorney Is Seeking Overdue Justice.

Some Tennesseans Have Criminal Records for Being Gay. One Attorney Is Seeking Overdue Justice.

Outward
Expanding the LGBTQ Conversation
Oct. 19 2016 12:11 PM

An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

Daniel Horwitz.
Daniel Horwitz.

Photo illustration by Slate. Images by Daniel Horwitz and Davidson County, Tennessee.

Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.

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“I had no idea that Nashville was still prosecuting sex between consenting same-sex adults as a criminal offense well into the mid-’90s,” Horwitz said. He immediately began working to expunge Doe’s record—which should have been an easy task, because today, the conviction itself is illegal. In 1996, the Tennessee Court of Appeals invalidated the Homosexual Practices Act as a violation of the state constitution. Seven years later, the U.S. Supreme Court held that laws punishing same-sex intimacy also violate the federal constitution.

But stripping the unconstitutional conviction from Doe’s record proved surprisingly difficult. Various procedural barriers prevented Horwitz from challenging or expunging the conviction using traditional remedies. Doe was boxed in by legal roadblocks and restrictive state laws designed to limit post-conviction appeals. So Horwitz chose a rather unconventional tactic: He pursued the common law writ of audita querela to vacate Doe’s conviction. The writ is extraordinarily rare; to Horwitz’s knowledge, no Tennessee court has issued one in the last century. But in Doe’s case, it was necessary: Courts may issue the writ of audita querela when a conviction that was originally valid has become legally void and a defendant has no other means of expunging his record. That neatly fit Doe’s dilemma.

After Horwitz filed what he called “a crazy petition for an ancient common law writ,” he received an unexpected call from the office of Nashville District Attorney General Glenn Funk. The DA had decided not to oppose Horwitz’s petition but instead to work with him to clear his client’s conviction. Shortly thereafter, County Judge Melissa Blackburn granted Doe the writ and vacated his conviction under the Homosexual Practices Act, writing that the relief was “essential to effect the ends of justice.”

Horwitz was thrilled—but he wasn’t finished. During his research, he had discovered 41 other people who had been convicted under the law. Distressed by their unconstitutional convictions, Horwitz brought the issue to Funk’s attention. The DA promptly agreed to expunge criminal records “in any case where the only violation was conduct proscribed by the Homosexual Practices Act.” His office told me that it won’t unilaterally expunge records, but it’s “willing to sign an order if contacted by a defendant or their counsel.”

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I asked Funk why he was eager to secure justice for these wronged individuals.

“I am committed to making sure that all citizens are treated equally under the law,” he told me, “regardless of their race, religion, gender or sexual orientation. Equal means equal, and individuals prosecuted under the Tennessee Homosexuals Practices Act were not treated that way.”

Horwitz agreed, noting that for him, laboring to expunge these illegal convictions was an easy call.

“I took [Doe’s case] on pro bono,” he said, “so there was never any question about going the extra mile.” But there’s more to it than that. The issue of LGBTQ equality, Horwitz explained, “means so much to me. It is nothing short of outrageous that people were prosecuted in this country for the crime of being born gay. Being able to play even a small role in undoing the damage and pain caused by such bigotry is an honor and a privilege for me. I believe with all my heart that gay rights are human rights and that equality is a core American value.”

That’s an important point. For many gay people, the pain inflicted by sodomy laws like Tennessee’s went far beyond symbolic humiliation. The mere existence of these laws burdened sexual minorities in myriad ways—allowing courts to deny them custody of their children on the grounds that their behavior was illegal, for instance, or permitting them to be lawfully fired due to their orientation. Individuals arrested and convicted under these laws faced even harsher penalties: They could be denied housing and employment for their criminal record, which labelled them immoral deviants. Laws like Tennessee’s weren’t just unconstitutional; they were also brutally cruel. Given how far we’ve come since then, it’s easy to forget the harm these statutes inflicted while they were still enforceable. Horwitz’s deeply admirable quest provides a necessary reminder that there are still people today whose lives were marred by bigotry during this dark chapter of American history.