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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