SLDN: Military’s Highest
Court Declines to Strike Down Sodomy Statute; Court Leaves Open Question of
Constitutionality Article 125
Legal Defense Network, August 23, 2004
Contact: Steve Ralls of SLDN, 202-328-3244, ext. 116 or email@example.com
WASHINGTON, U.S. Newswire—In a
decision published today, the military’s highest court of criminal appeals
declined to strike down the armed forces’ ban on private, consensual sodomy,
known as Article 125 of the Uniform Code of Military Justice. The court
reviewed the statute in wake of the U.S. Supreme Court decision in Lawrence
v. Texas in June 2003. The Court of Appeals for the Armed Forces left
open whether it would declare private consensual sodomy involving service
members unconstitutional in future cases. In United States v. Marcum, the
court found that the appellant’s involvement with a subordinate took his
conduct outside of the constitutional protection defined by the Supreme Court.
The court’s opinion is available online at http://www.sldn.org.
“The court sidestepped the issue of whether Article 125
is unconstitutional,” SLDN Executive Director C. Dixon Osburn said. “In
Lawrence, the Supreme Court took a clear and unmistakable view that government
intrusion into private intimate relationships is unconstitutional. SLDN will
now consider all options regarding further challenges to the military’s
Counsel for Servicemembers Legal Defense Network (SLDN)
argued in Marcum that the Lawrence decision, which struck down state sodomy
laws, invalidated the military’s similar statute. SLDN argued, as the court
noted, that Lawrence recognized “a constitutional liberty interest in sexual
intimacy between consenting adults in private.” SLDN was joined by Lambda
Legal Defense & Education Fund, the American Civil Liberties Union (ACLU)
and the ACLU of the National Capital Area. The law firm of Wilmer Cutler
Pickering Hale & Dorr LLP represented the organizations.
Marcum was a cryptologic linguist and the supervising
noncommissioned officer in a flight of Persian-Farsi speaking intelligence
analysts stationed at Offutt Air Force Base in Omaha, Nebraksa. He was
convicted on May 21, 2000 of consensual sodomy and other charges.
After the Supreme Court’s decision in Lawrence, the
Court of Appeals for the Armed Forces granted appellant the right to challenge
to continued validity of Article 125. The court noted that “constitutional
rights generally apply to members of the armed forces unless by their express
terms...they are inapplicable.” The court suggested that consensual sodomy,
by itself, even in the military context, may be within the constitutional
protection defined by the Supreme Court. The Court of Appeals for the Armed
Forces ruled, however, that the additional aspect of that conduct occurring
within the context of a superior / subordinate relationship, took the conduct
outside of the constitutional protection defined by the Supreme Court.
The military’s sodomy statute applies to both
heterosexual and same-sex consensual sodomy. According to the RAND Institute,
80 percent of military personnel violate the statute on a regular basis.
In 2001, a blue ribbon panel convened to review the
Uniform Code of Military Justice (UCMJ) also called for repeal of the statute.
The Cox Commission, chaired by retired Judge Walter T. Cox III, called
military sodomy prosecutions “arbitrary, even vindictive.” The Commission
recommended replacing the existing statute with one more closely resembling
civilian prohibitions against forcible sodomy, sexual conduct with a minor and
other serious criminal offenses.
“Private, consensual conduct in the bedroom has no
impact on the battlefield,” Osburn said. “Our country right now needs to
fight terrorists, not pry into people’s private lives.”
SLDN noted that the decision has no impact on the
military’s “Don’t Ask, Don’t Tell” ban on lesbian, gay and bisexual
Servicemembers Legal Defense Network is a national,
non-profit legal services, watchdog and policy organization dedicated to
ending discrimination against and harassment of military personnel affected by
‘Don’t Ask, Don’t Tell’ and related forms of intolerance. For more
information, visit http://www.sldn.org.
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