Military Appeals Court
Reverses Heterosexual Sodomy Conviction
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
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
“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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