Military Appeals Court
Overturns Sodomy Conviction
Advocate, December 9, 2004
In a decision that gay
rights activists are hailing as an important legal victory, a military appeals
court on Tuesday overturned the conviction of a soldier for having consensual
sodomy with a woman while in the Army. Some are arguing that the ruling could
undercut the military’s antigay “don’t ask, don’t tell” policy.
According to a report in The
Washington Post, 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 gay sex.
According to the Post, 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 gay sex.
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,” Patricia M. Logue,
senior counsel for Lambda Legal, which is seeking to overturn antigay military
statutes, told the Post.
Some legal experts have said the Pentagon could appeal
the decision to the U.S. 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.
Gay rights activists have challenged the Pentagon’s gay
ban and have enjoyed some preliminary successes. On Monday 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 third
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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