Last edited: November 02, 2003

Military Needs to Update Its Conduct Code

Detroit News, September 15, 2003
615 W. Lafayette, Detroit, MI 48226
Fax: 313-222-6417

By Deb Price, The Detroit News

The blockbuster U.S. Supreme Court ruling that in late June swept away all remaining state anti-sodomy laws is refueling the drive to allow gay men and lesbians to serve openly in the military and strike down the military’s anti-sodomy statute.

The reinvigorated push to have a court abolish the outrageous, un-American “Don’t Ask, Don’t Tell” law, which prohibits gay soldiers from being honest about who they are, couldn’t come at a better time:

The 2004 presidential race will bring the issue back into the spotlight. President George W. Bush supports the 1993 law that allows gay soldiers to serve only if they are celibate, closeted and their superiors don’t discover their orientation. All leading Democratic challengers want to scrap the ban.

The Supreme Court’s Lawrence v. Texas ruling left unanswered whether the military’s own sodomy statute, known as Article 125, unconstitutionally violates the right to privacy.

In addition to criminalizing forcible sodomy, Article 125 outlaws private, consensual sodomy for any couple—straight or gay—and can lead to a five-year sentence.

In the past, the military’s top court upheld Article 125 by citing the Supreme Court’s 1986 Bowers v. Hardwick ruling, which upheld state anti-sodomy laws. But that decision was explicitly overturned by June’s Lawrence decision.

Lawrence definitely strengthens our hand,” says C. Dixon Osburn, director of the Servicemembers Legal Defense Network, a group dedicated to winning fair treatment for gay members of the armed forces. (See

“My original vision back in 1993 was that it would take 25 years to get rid of ‘Don’t Ask, Don’t Tell.’ Now I think we’ve shaved five years off that,” Osburn said.

Already, three men—two of them convicted for private, consensual sex with women—are citing Lawrence in their appeals. A decision by the military’s top court on the future of Article 125 could come by the end of this year. And that court’s ruling—whichever way it goes—could be appealed to the Supreme Court for a final verdict.

Meanwhile, a civil lawsuit citing Lawrence is trying to get a $1.1 million pension reinstated for a former Army lieutenant colonel who was booted out of the military when an arson attack on his home exposed that he is gay.

The recent Lawrence decision, coupled with the 1996 Romer v. Evans ruling in which the Supreme Court said gay Americans are entitled to equal protection, can also be expected to be used to try to overturn “Don’t Ask, Don’t Tell.” In the past decade, that misguided law has resulted in 8,895 discharges, costing taxpayers $258.4 million just to train replacements.

Getting rid of Article 125’s consensual section would certainly weaken the already flimsy argument for “Don’t Ask, Don’t Tell.”

The Pentagon is reviewing whether that section can withstand scrutiny in the post-Lawrence legal world.

Congressman Barney Frank, D-Mass., has introduced the “Anti-Hypocrisy Act” to decriminalize private, consensual sex in the military.

Powerful, new voices are joining the chorus urging the Pentagon and Congress to abandon “Don’t Ask, Don’t Tell.” Writing in the esteemed National Law Journal, retired Navy admiral John Hutson says back in 1993 “opening the ranks (to openly gay people) was a bit like Chuck Yeager’s first breaking the sound barrier—no one was quite sure what would happen.” Hutson opposed finding out.

But today Hutson blasts “Don’t Ask, Don’t Tell” as a “charade” that “fosters divisiveness” and “demeans the military.” He wisely declares, “It would be a great tragedy if we didn’t take advantage of this second chance (offered by Lawrence) to correct a flawed policy.”

The military, following the lead of civilian society, is gradually modernizing its attitudes. Now the courts and Congress need to tell the Pentagon it’s time to also update its code of conduct.

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