Last edited: December 13, 2004

Military Appeals Court Reverses Heterosexual Sodomy Conviction

New York Times, December 13, 2004

By John Files

WASHINGTON, Dec. 12—A military appeals court has overturned the conviction of a soldier for heterosexual sodomy in a decision that legal scholars and advocates for gay rights say may have broader implications for gays serving in the armed forces.

The decision, issued late last month by the United States Army Court of Criminal Appeals, was based in part on the Supreme Court opinion in Lawrence v. Texas, which declared last year that the Texas sodomy statute violated the right to privacy.

The case before the Army court involved a male Army specialist who admitted that he had engaged in consensual oral sex in a barracks room with a female civilian whom he had met at a nightclub. But those seeking to abolish the military’s “don’t ask, don’t tell” policy, and some legal experts, say the ruling is also applicable to private gay sex—thus cracking the foundation of the military’s rationale for requiring gays to serve in silence.

Under Article 125 of the Uniform Code of Military Justice, armed forces personnel are prohibited from “unnatural carnal copulation with another person of the same or opposite sex or with an animal.”

The separate policy regarding the service of gays and lesbians in the armed forces, known as “don’t ask, don’t tell,” bars officials from inquiring into a soldier’s sex life unless there is evidence of homosexual conduct. But those who volunteer the information can be discharged.

“The effect on ‘don’t ask, don’t tell’ will be indirect,” said Eugene R. Fidell, who teaches military justice at Harvard Law School. “But it is a demonstration of the pertinence of the Lawrence case to the military environment.”

Mr. Fidell added, “It is a forward step.”

Others were more certain that the ruling would undermine the policy. Diane H. Mazur, a professor at the Levin College of Law at the University of Florida, said the decision signaled “the eventual demise of ‘don’t ask don’t tell.’ “

Military and civilian courts have held that the military is a distinct world with its own laws and guidelines not always subject to the constraints and constitutional guarantees of civilian life.

The military argues that allowing openly gay troops would disrupt unit cohesion and morale and undermine the services’ mission.

C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, a gay rights group that monitors military justice, said the Army court’s decision was an encouraging one in recognizing service members’ privacy rights.

“Private, consensual conduct in the bedroom has no impact on the battlefield,” Mr. Osburn said.

The legal defense network is assisting a group of armed forces personnel who were discharged for being gay or lesbian with a lawsuit filed last week that challenges the constitutionality of the military’s “don’t ask, don’t tell” policy and the military sodomy statute.

The Army court of appeals cited the Lawrence decision in its ruling. The Supreme Court 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,” the court wrote, adding, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

Bridget Wilson, a San Diego lawyer who has defended gay military personnel, said the true test of the court’s ruling would be whether it stood up to appeal, which if pursued would be heard by the United States Court of Appeals for the Armed Forces.

“The question is whether the military court can make the analysis it has made and get away with it,” Ms. Wilson said.

An Army spokeswoman said Friday that there was no plan to appeal as of now.

The armed forces court, the nation’s highest military court, ruled in August that under certain circumstances, the military’s ban on sodomy was constitutional. But the court did not directly address the larger question of whether protections offered by the Lawrence decision applied universally to the military.

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