Last edited: August 29, 2004

Military High Court Upholds Sodomy Ban, August 24, 2004

By Eric Johnston, PlanetOut Network

SUMMARY: On Monday, the nation’s highest military court declined to strike down the armed forces’ ban on consensual sodomy.

The nation’s highest military court declined to strike down the armed forces’ ban on consensual sodomy, letting stand a conviction against Air Force Sergeant Eric Marcum in Washington, D.C., on Monday.

The U.S. Court of Appeals for the Armed Forces sidestepped the broader question of the validity the military’s sodomy law—Article 125 of the Uniform Code of Military Justice—by ruling against Marcum on the grounds that his sexual partner was in his chain of command, a violation of military protocol.

Several civil rights groups had urged the military to strike down Article 125 on the basis of last year’s U.S. Supreme Court decision in Lawrence vs. Texas, which struck down all state laws prohibiting consensual sodomy.

“Private, consensual conduct in the bedroom has no impact on the battlefield,” said C. Dixon Osburn, executive director of Servicemembers Legal Defense Network “Our country right now needs to fight terrorists, not pry into people’s private lives.”

Article 125 applies both to heterosexual and homosexual sodomy, regardless of where the act takes place, meaning that even married couples could be prosecuted for committing sodomy in the privacy of their own homes.

The court left open whether it would declare Article 125 unconstitutional in future cases. Some legal experts say such a ruling is inevitable.

“The end of the military’s ability to criminalize private consensual sex is in sight,” said James Esseks, litigation director for the American Civil Liberty Union’s Lesbian and Gay Rights Project. “There are at least eight other cases pending before lower military courts that will likely chip further away at Article 125.”

Tina Rice, a transgender activist and retired U.S. Army sergeant, told the PlanetOut Network the sodomy law is outdated.

“I think it’s past its time,” she said. “I don’t think the government should be in our bedrooms in any way shape or form, whether it’s military or civilian life.”

However, Rice said she agreed with the military for punishing Marcum for having sexual relations with a subordinate.

“When you have something like that happen, you have (the potential for) favoritism being shown to that person, as far as jobs and other duties are concerned,” she said.

Marcum was a cryptologic linguist and the supervising noncommissioned officer for a group of Persian-Farsi speaking intelligence analysts stationed at Offutt Air Force Base in Omaha, Neb.

He was convicted in May of 2001 of engaging in consensual sodomy with a fellow airman in the privacy of his home. He was sentenced to 10 years in prison, and the term that was later cut to six years. Marcum is now on parole.

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