Last edited: February 14, 2005

Supreme Court Sodomy Decision Implicates Federal Sodomy Statute & "Don't Ask, Don't Tell"

Servicemembers Legal Defense Network, June 26, 2003 

“Servicemembers Legal Defense Network (SLDN) commends our friends at Lambda Legal Defense & Education Fund on their landmark victory in Lawrence v. Texas,” said SLDN Executive Director C. Dixon Osburn. “Today’s Supreme Court decision, overturning the Texas sodomy statute, may also remove a significant roadblock in repealing the federal sodomy statute and the military’s ban on lesbian, gay and bisexual service members.”

“Don’t Ask, Don’t Tell” is a statute banning gays in the military if they do not keep their sexual orientation a secret even from their family. The law is predicated on the notion that prohibition of “homosexual conduct” is essential to unit cohesion. The military’s prohibition of homosexual conduct is rooted in the federal sodomy statute codified as Article 125 of the Uniform Code of Military Justice (UCMJ). The statute applies to both heterosexual and homosexual sodomy.

Servicemembers Legal Defense Network reports that some of its clients in the past ten years have faced charges or the threat of charges for violation of the federal sodomy statute. It is not known how many service members are currently in prison at Fort Leavenworth for violating the federal sodomy statute. In 2001, a blue ribbon panel of military law experts called for repeal of the sodomy statute on the fiftieth anniversary of the UCMJ, calling its enforcement “arbitrary, even vindictive.”

The armed forces have discharged almost 9000 service members for being lesbian, gay or bisexual since “Don’t Ask, Don’t Tell” was adopted ten years ago. The reason for each discharge has been homosexual conduct.

“An open question,” according to Osburn, “is whether future courts will invoke the doctrine of military deference and avoid the underlying issue of the constitutionality of either the federal sodomy statute or ‘Don’t Ask, Don’t Tell.’”

Writing for today’s majority, Justice Kennedy ruled that the “right to liberty under the Due Process Clause gives…the full right to engage in private conduct without government intervention.” Kennedy further stated that, regarding lesbian, gay and bisexual Americans, “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

“SLDN will look closely at today’s ruling and work with other legal experts to determine what role it may have in tearing down the walls to equality in our armed forces,” said Osburn.

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