Some Believe Ruling Undercuts
Military Appeals Court Overturned Conviction of
Soldier on Sodomy Charge
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
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
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.
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.
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