Last edited: December 11, 2004

Legal Scholars Assess Impact of Reversal of Military Sodomy Conviction

Center for the Study of Sexual Minorities in the Military, December 10, 2004
University of California, Santa Barbara
Contact: Nathaniel Frank, Senior Research Fellow

SANTA BARBARA, CA—The legal community today offered several interpretations of the recent ruling by a military court invalidating a sodomy conviction of a male Army Specialist with a female civilian. The decision, handed down by the Army Court of Criminal Appeals, said that Article 125 of the Uniform Code of Military Justice, which prohibits “unnatural carnal copulation,” was not “constitutionally applied in this case.”

What’s most remarkable about the case,” said James Garland, Visiting Associate Professor at Hofstra Law School, “is that the Court of Appeals concluded that sex in the barracks itself has an insufficient military connection to overcome the essentially private and personal character of that activity.” He said that this case appears to establish a liberty interest in private sexual activity that “should give gay and lesbian soldiers a stronger basis for challenging discharges that target their sexual identity.” A fair reading of this case, he said, could shift the burden of justifying a gay discharge to the military itself, which would have to demonstrate the detriment to military readiness of permitting private homosexual conduct.

The case, U.S. v. Bullock, is one of the first to be tried after Lawrence v. Texas, the landmark Supreme Court ruling that struck down state laws banning sodomy in June 2003, and it is said to be the first instance of a military court upholding the right to oral sex by consenting adults. The court cited the Lawrence case in its decision, saying the Supreme Court had recognized “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Generally, legal scholars applauded the recent ruling. “This is a positive decision,” said Beth Hillman, Assoc Professor of Law at Rutgers University, Camden. Although this decision does not change the Uniform Code of Military Justice, she said it is “a step toward narrowing its application to the point where we will see it fall out of use.” Prof. Hillman explained that the first case to assess the impact of Lawrence on the military’s sodomy regulations was the Marcum case, in which military judges said courts must “engage in a searching constitutional inquiry” in order to justify limiting the right to sexual liberty. “This is the lower court trying to follow that rule and trying to find out if the liberty recognized by Lawrence has real meaning in the military. And it is now saying it does. That is a step in the right direction toward protecting the rights of service members to engage in private sexual behavior. This keeps Article 125 from reaching the sort of private consensual behavior that the military has no business criminalizing.”

Both military and civilian courts have frequently held that the military is a distinct world with its own laws and customs, not always subject to the constraints and constitutional guarantees of civilian life. In this case, however, drawing on the Marcum decision, the military court asked if the conduct in question was “of a nature to bring it within the liberty interest identified by the Supreme Court” in the Lawrence decision. In order to uphold a sodomy conviction post-Lawrence, said the court, it must be established that the behavior was “outside the liberty interest” identified in Lawrence. It found in this case that the sexual encounter was private and consensual and lay “squarely within the liberty interest” identified by Lawrence.

“The court’s analysis is quite promising, said Tobias Wolff, Assistant Professor of Law at the University of California, Davis, Law School. “It holds that soldiers enjoy the same liberty rights to private, consensual sex that civilians do, subject to certain restrictions involving relations between military personnel.” He said it was remarkable that the court recognized that this liberty extends to the barracks as well as to off-base activity.

Aaron Belkin, Associate Professor of Political Science and Director of the Center for the Study of Sexual Minorities in the Military at the University of California, Santa Barbara, agreed about the importance of seeing a military court recognize that adult consensual sex in private has no bearing on the military mission when subject to proper limits involving military relationships. “The court ruled that the appellant’s case showed no military necessity to limit his freedom to engage in sexual behavior that harmed no one,” he said. “It’s an important step forward that such a court is now recognizing that guaranteeing these rights has no impact on military effectiveness.

The impact of the court ruling on “don’t ask, don’t tell,” which is a separate statute from the Article 125 sodomy ban, remains unclear.

According to Belkin, the military’s sodomy ban is only one part of the justification for the ban on openly gay service members. “Another part of the public rationale is that the presence of gay soldiers makes straight soldiers uncomfortable, and thus threatens unit cohesion.” Garland cautioned that military courts have made clear that they would continue to entertain arguments by the military that there is a military interest in regulating private homosexual sex. This is because courts have frequently accepted the military’s reasoning that simple awareness that a member of a unit has engaged in such sex could polarize a unit.

Others were more confident that the recent ruling spells the beginning of the end of the gay ban. “This decision signals the eventual demise of ‘don’t ask, don’t tell,’ said Diane H. Mazur, Professor of Law at the University of Florida Levin College of Law. She said that since the Lawrence decision, it has become “much more difficult for the military to justify either the sodomy restriction of Article 125 or the ‘don’t ask, don’t tell’ policy. Lawrence rests on the fundamental premise that all people have a constitutional liberty interest in personal intimacy. Military people deserve no less.”

Bridget Wilson, an attorney who serves in the California State Military Reserve and who is an expert on the legal status of U.S. military personnel, said the larger impact of this decision would depend on whether a higher court upholds this court’s reasoning. “The question is whether the military court can make the analysis it’s made and get away with it,” she said. “Or is a higher court going to say that the court system cannot add its own element of military detriment?” She was referring to the court’s reasoning that the sodomy conviction should be reversed because, despite the existing ban on sodomy, the facts of the case had not demonstrated a “military necessity to circumscribe” the appellant’s liberty interest in the conduct in question. “I think there’s a question of whether the court’s analysis works because it’s not the job of the court to redefine the crime,” she said.


The Center for the Study of Sexual Minorities in the Military is an official research unit of the University of California, Santa Barbara. The Center is governed by a distinguished board of advisors including the Honorable Lawrence J. Korb of the Center for American Progress, Honorable Coit Blacker of Stanford University and Professor Janet Halley of Harvard Law School. Its mission is to promote the study of gays, lesbians, and other sexual minorities in the armed forces. More information is available at

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