Last edited: December 08, 2004

Some Believe Ruling Undercuts ‘Don’t Ask’

Military Appeals Court Overturned Conviction of Soldier on Sodomy Charge

Washington Post, December 8, 2004

By Michael Dobbs, Washington Post Staff Writer

A military appeals court has overturned the conviction of a soldier for consensual sodomy in a decision that gay rights activists are hailing as an important legal victory removing some of the barriers to homosexual activity in the armed forces.

The previously unreported decision, handed down last week by the U.S. Army Court of Criminal Appeals, builds on a landmark Supreme Court ruling last year that struck down a Texas sodomy statute. It is believed to be the first time that a military court has upheld the right of consenting adults to engage in oral sex in private.

“It undercuts the premise of ‘don’t ask, don’t tell,’ “ said Washington lawyer David Sheldon, who represents several soldiers fighting their dismissal from the armed forces because of homosexual activity. He was referring to a Pentagon policy that has led to the discharge of more than 9,000 openly gay service members over the past decade.

Last week’s court decision involved a male Army specialist who was convicted of engaging in oral sex with a female civilian in a military barracks. Kenneth Bullock was charged under Article 125 of the Uniform Code of Military Justice, which prohibits “unnatural carnal copulation with another person of the same or opposite sex or with an animal.”

Although the case involved a man and a woman, legal experts said the principles invoked by the three military judges were equally applicable to homosexual activity. The constitutionality of Article 125 has come under assault as a result of last year’s Supreme Court decision in Lawrence v. Texas, which upheld the notion of a “zone of privacy” for sexual relationships involving consenting adults.

This decision means that “even in the military, you have a zone of privacy and can engage in sexual acts in private that used to be considered criminal,” said Patricia M. Logue, senior counsel for Lambda Legal, which is seeking to overturn anti-gay military statutes.

Legal experts said the Pentagon could appeal the decision to the Court of Appeals for the Armed Forces or to the Supreme Court, on the grounds that the military is a special institution with its own disciplinary procedures. Military lawyers who argued the government’s case at the hearing at Fort Polk, La., did not return calls seeking comment.

The Pentagon policy on “don’t ask, don’t tell” was codified by Congress in a 1993 law that described the military as a distinct social organization that frequently required “forced intimacy with little or no privacy.” The law endorsed the right of the armed forces to exclude “persons who demonstrate a propensity or intent to engage in homosexual acts” that could undermine “morale, good order and discipline.”

Gay activists have challenged the Pentagon ban and have won some preliminary skirmishes. This week, a dozen former armed forces members discharged for being gay or lesbian filed suit in federal court in Boston, challenging the constitutionality of “don’t ask, don’t tell.” They argued that the military sodomy statute conflicted with the Lawrence v. Texas decision.

Last week, the U.S. Court of Appeals for the 3rd Circuit in Philadelphia ruled that law schools have a right to bar military recruiters from their campuses as a way of protesting the Pentagon policy on gays. The three-judge panel struck down a congressional amendment that permitted the government to withhold federal money from educational institutions that refuse to cooperate with military recruiters.

[Home] [News] [US Military]