Military Court Skirts Gay Sex
August 23, 2004
By 365Gay.com 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
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
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
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