Military Sodomy Ruling Offers
Army appeals court throws out oral sex conviction,
with implications for gay soldiers
City News, December 16, 2004
By Stefen Styrsky
For those legally challenging the U.S. military’s
“Don’t Ask, Don’t Tell” policy that prevents gays and lesbians from
serving openly in the armed forces, an army court’s November 30 ruling
provided a glimmer of hope that they might prevail.
The decision by the Army Court of Criminal Appeals in
U.S. v Bullock overturned the sodomy conviction of a soldier who engaged in
oral sex with a female civilian in his barracks room, stating that
constitutional privacy rights allow service personnel to engage in certain
consensual sex acts without interference, even if such acts are criminal under
Article 125 of the Uniform Code of Military Justice.
Article 125 prohibits service-members from engaging in
oral or anal sex, and establishes penalties of dishonorable discharge and up
to five years imprisonment.
As a basis for its decision the Army court cited the U.S.
Supreme Court’s 2003 ruling in Lawrence v Texas, writing that Lawrence had
demonstrated, “an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their private lives in
matters pertaining to sex.”
Lawrence v Texas overturned the nations anti-sodomy laws.
The Supreme Court ruled that the due process clause of the U.S.
Constitution’s 14th Amendment guaranteed gays and lesbians the right to
privacy when engaged in intimate relationships, and that consenting adults
were allowed to engage in sodomy without threat or fear of government
The two major cases now before the courts suing for an
end to DADT both rely on Lawrence, claiming that the military’s policy,
established when Pres. Bill Clinton failed in his effort to open up military
service to openly gay and lesbian soldiers, is unconstitutional.
Sharra Greer, the legal director for the Service Members
Legal Defense Network (SLDN), represents 12 former military personnel all
discharged for being gay, who are now suing to be reinstated. She called the
Bullock ruling “good news with qualifications.”
“While 125 is a rhetorical pillar that upholds
‘Don’t Ask, Don’t Tell’ it is not the only argument for its
presence,” she said.
This view was seconded by Aaron Belkin, director at the
University of California at Santa Barbara’s Center for the Study of Sexual
Minorities in the Military. The military has always argued that because sodomy
is a criminal act under 125, allowing gays to serve would amount to harboring
criminals, according to Belkin.
Two other major arguments that are cornerstones of the
DADT policy are that given widespread social disapproval of homosexuality,
openly gay soldiers would undermine unit cohesion, and that the presence of
gay men and lesbians in the military violates the privacy rights of
heterosexual soldiers in areas like common showers.
“However, the Bullock ruling is an important first
step, and if eventually expanded to eliminate 125, it will knock out one
pillar of Don’t Ask, Don’t Tell,” Belkin said.
Marty Meekins, a lawyer at White and Case, represents the
Log Cabin Republicans in that organization’s lawsuit to overturn DADT on
behalf of members currently serving in the military.
“I am very heartened by the Bullock decision,” he
said. “It is very consistent with our view of Lawrence v Texas. The
government will have a hard time arguing that the right to privacy doesn’t
exist for gays and lesbians in the military.”
According to Tobias Barrington Wolff, professor of
constitutional law at the University of California at Davis, the military
rules on sodomy have always been at the core of DADT.
“Sodomy is a conduct violation in the military. The
military has always used the statement ‘I am gay’ as evidence that a
soldier has a propensity to commit these conduct violations,” he said.
Wolff termed the Bullock ruling, “significant,”
saying that it puts several rationales that uphold DADT into question.
“The court without comment applied privacy rights to a
barracks room, where before it has usually ruled that such rights do not
necessarily apply in the military,” he said.
The Bullock ruling followed in the wake of an earlier
case, U.S. v. Marcum, heard before the Court of Appeals for the Armed Forces (CAAF),
in which a gay soldier was convicted and discharged under Article 125. In its
decision, the CAAF found that Marcum’s discharge was allowable because he
engaged in sexual acts with a subordinate, which took him beyond any
constitutional protections. However, the CAAF also said that all courts must
now “engage in a searching constitutional inquiry” when considering the
limits to a soldier’s private sexual interaction. In ruling in Marcum, the
court made no mention of the fact that the sexual conduct was between two men.
“While not closely linked legally, it is good to see a
court not differentiating the gender of the involved individuals,” Greer
said of the positive elements found even in U.S. v. Marcum. “The rights of
privacy should be the same for gay and heterosexual people.”
Wolff said both cases signaled it was time that DADT be
“The evidence is overwhelming that it is unnecessary,
counterproductive and unjust,” he said.
Wolff said he would like to see Congress overturn the
“Not only would it make it more palatable to mainstream
America, but it is important that lawmakers repeal unconstitutional laws and
pass constitutional ones,” he said.
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