Last edited: August 29, 2004

Military’s Highest Court Declines to Strike Down Sodomy Statute

The Advocate, August 25, 2004

The U.S. military’s highest court of criminal appeals on Monday 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.

However, the U.S. Court of Appeals for the Armed Forces left open whether it would declare private consensual sodomy involving service members unconstitutional in future cases.

“The court sidestepped the issue of whether Article 125 is unconstitutional,” said C. Dixon Osburn, executive director of Servicemembers Legal Defense Network, an advocacy group for gay and lesbian service members. “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.”

After the Supreme Court’s decision in Lawrence, the Court of Appeals for the Armed Forces granted the appellant the right to challenge the 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 U.S. 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 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% of military personnel violate the statute on a regular basis.

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