Last edited: August 28, 2004

Military Court Skirts Gay Sex Law, August 23, 2004

By Newscenter Staff

Washington—In a decision released Monday, 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 sidestepped the issue of whether Article 125 is unconstitutional,” said C. Dixon Osburn the Executive Director of the Servicemembers Legal Defense Network.

“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 statute.”

Counsel for 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.

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 service members.

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