Military High Court Upholds
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
“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
The court left open whether it would declare Article 125
unconstitutional in future cases. Some legal experts say such a ruling is
“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sergeant, told the PlanetOut Network the sodomy law is outdated.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
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