Military’s Highest Court
Declines to Strike Down Sodomy Statute
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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