Last edited: December 08, 2004

Army Ruling Deals Blow to Sodomy Law

PlanetOut Network, December 8, 2004

By Ann Rostow

SUMMARY: An unpublished ruling by the U.S. Army’s top court may herald the beginning of the end for the military’s sodomy law.

An unpublished ruling by the U.S. Army’s top court may herald the beginning of the end for the military’s sodomy law.

The military has long outlawed sodomy under Article 125 of the Uniform Code of Military Justice, a prohibition on “unnatural carnal copulation with another person of the same or opposite sex, or with an animal.” The rule, otherwise translated into a ban on oral and anal sex, even applies to private conduct off the military base, allowing the long arm of military law to stretch a little further than might be constitutional.

LGBT advocates challenged the military sodomy earlier this year in a case that went all the way to the highest military court, the Court of Appeals for the Armed Forces. In that case, Air Force Technical Sgt. Eric Marcum challenged his court martial, which was based on a number of Article 125 violations with other men. Since some of Sgt. Marcum’s activities were possibly coerced, the court was not able to absolve him in the specific incident under review, a consensual episode with a subordinate.

In its ruling however, the high court took no position on the key question of whether the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas effectively gutted the military’s sodomy ban along with that of the Lone Star State. In fact, the court suggested that Lawrence could govern a military case under different circumstances.

Now, that case may have arrived. Basing its ruling on Lawrence, the U.S. Army Court of Criminal Appeals overturned the guilty plea of an Army specialist who had oral sex with a female civilian in the barracks. According to the Washington Post, the decision is the first to uphold a right to sexual privacy that trumps Article 125.

The fact that the man involved was accused of a heterosexual violation is irrelevant to the legal principles at issue. Oral sex is oral sex, and if Article 125 no longer applies to straight sex, it no longer applies to gay sex, either.

If the Pentagon appeals the ruling to the Court of Appeals for the Armed Forces, the high court will have another chance to consider the impact of Lawrence on the armed services.

The ruling coincides with a new lawsuit challenging the 1993 “don’t ask, don’t tell” ban on gay speech in the military. The issues of sodomy and “don’t ask, don’t tell” are separate, but related, since the ban on gay speech is supported by the more fundamental ban on gay actions. Taking away that support could weaken “don’t ask” and could affect the outcome of Monday’s challenge to the policy, brought before a federal court in Boston by a group of 12 ousted gay and lesbian service members.

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