Groups Challenge Military’s Sodomy Ban
/ PlanetOut.com Network, October 2, 2003
By Ann Rostow
SUMMARY: Three of the gay community’s most powerful
legal advocates teamed up to file a “friend of the court” brief on
Thursday in a challenge to the military’s ban on sodomy.
Three of the gay community’s most powerful legal
advocates teamed up to file a “friend of the court” brief on Thursday in a
challenge to the military’s ban on sodomy.
Lambda Legal Defense, the ACLU Lesbian and Gay Rights
Project and the Servicemembers Legal Defense Network filed the brief in the
case of Air Force Technical Sergeant Eric Marcum, who was convicted, among
other things, of having consensual sex with another man in his own home.
Marcum’s conviction on this particular charge is now
under appeal from the Air Force Court of Criminal Appeals to the military’s
highest court, the U.S. Court of Appeals for the Armed Forces. It is the first
challenge to Article 125, the sodomy ban, to reach the military’s high court
since the Supreme Court struck the nation’s sodomy laws on constitutional
grounds in Lawrence v. Texas
last June. Oral arguments are scheduled for Oct. 7, and the case could be
decided as early as the end of this year.
Established in 1950, the Uniform Code of Military Justice
governs discipline throughout the armed forces, and is adjudicated through the
military courts. Article 125 bans “unnatural carnal copulation” with
another person of either sex, as well as bestiality. Although military law
must conform to constitutional standards, courts often allow the armed
services to limit constitutional rights based on national security concerns.
This deference to the military, for example, has led several federal appellate
courts to uphold the “don’t ask, don’t tell” policy, despite the
apparent First Amendment violations triggered by that law.
In view of the Lawrence decision, however, the
military will have a more difficult time defending the application of its
sodomy ban to consensual acts, conducted off-base, in a private home, during
off-duty hours. Neither national security, troop morale, good discipline nor
unit cohesion seem to be threatened in the scenario under review. Without such
rationales, the Supreme Court’s strong defense of individual privacy in Lawrence
would appear to govern the outcome.
In a joint press release, the friends of the court note
that the former chief judge of the U.S. Court of Appeals for the Armed Forces,
Judge Walter T. Cox III, urged Congress to repeal Article 125’s sodomy ban
back in 2001. In a prior case, Cox upheld the ban based on the U.S. Supreme
Court’s ruling in Bowers v. Hardwick,
the precedent that was expressly reversed in Lawrence
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