Last edited: October 25, 2003

Top Military Court Hears Case Against Sodomy Ban

Arguments First to Test Issue Since Supreme Court Reversed State Laws

Army Times, October 20, 2003
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By Deborah Funk, Times staff writer

The military’s ban on sodomy came under its first attack in the armed forces’ highest court since the Supreme Court ruled that criminalizing private acts of sodomy between consenting adults is unconstitutional.

In an Oct. 7 hearing before the U.S. Court of Appeals for the Armed Forces, attorneys for an airman, a gay rights group and civil libertarians argued that Tech. Sgt. Eric Marcum’s conviction of consensual sodomy must be overturned because the Supreme Court found that consenting adults have a right to privacy and cannot be prosecuted for such acts.

The arguments were the first challenging the military’s sodomy prohibition before the appeals court since the Supreme Court ruled in June on a Texas case and struck down state laws banning consensual sodomy.

Article 125 of the Uniform Code of Military Justice prohibits anal or oral sex among heterosexuals and homosexuals, married or not, in any location, including the privacy of a home.

Unlike many state laws, the UCMJ provision does not distinguish between acts among consenting adults and acts against someone’s will. Legal experts long have recommended that military sexual assault laws be rewritten to more closely mirror state laws.

“What this represents is a bygone era that no longer exists in America today,” Marcum’s attorney, Frank Spinner, told the military high court, arguing that Article 125 should be declared unconstitutional.

Marcum, who was the senior noncommissioned officer in an Air Force flight of Farsi-speaking intelligence analysts at Offutt Air Force Base, Neb., was tried in May 2000 of various offenses committed from 1997 to 1999. He was convicted of dereliction of duty for providing alcohol to underage airmen, forcible sodomy, consensual sodomy, assault and battery and indecent acts. The sexual offenses involved a total of six airmen. He was sentenced to a dishonorable discharge, 10 years’ confinement, reduction to E-1 and total forfeiture of pay. His jail term later was reduced to six years.

While all sodomy is prohibited under Article 125, a conviction on the specific charge of forcible sodomy carries a greater maximum sentence than consensual sodomy.

Marcum’s punitive discharge has not been carried out pending the outcome of his appeal. He is out on parole and is on unpaid leave, Spinner said. He added that Marcum would get at least a new sentencing hearing if Article 125 is struck down.

In a written brief, Air Force lawyers said the Supreme Court has recognized that some acts permissible under civilian law are prohibited by military law.

Moreover, the Texas ruling still leaves room for regulating sodomy in certain circumstances, including in “relationships where consent might not be easily refused.”

“The military environment is, by its nature, less autonomous, and may result inherently in creating” those kinds of relationships, the brief stated.

Air Force Col. LeEllen Coacher, the government’s lead attorney on the case, urged the court not to overturn Article 125, saying it helps maintain good order, discipline and unit cohesion.

The Marcum case involved relationships between a superior and subordinates and had a strongly negative impact on unit cohesiveness, Coacher said.

“There is clearly a compelling reason for upholding the conviction in this case,” she said.

Spinner countered that the Supreme Court ruled that consensual sodomy should not be criminal conduct, and argued that the military doesn’t need the sodomy statute to regulate improper conduct between subordinates and superiors. The military law prohibiting sodomy “adds nothing,” he said.

The military’s highest court in the past has upheld Article 125, citing an anti-sodomy Georgia law that the Supreme Court upheld in 1986.

This summer, however, the Supreme Court said the decision in the case that led to the Georgia law was wrong and “ought not to remain binding today,” according to a brief filed on behalf of the Servicemembers Legal Defense Network, the American Civil Liberties Union, Lambda Legal Defense and Education Fund and a small group of retired military officers.

In arguing for those groups, attorney Stuart Delery told the military court that Article 125 was overly broad and allows conviction for what constitutionally is protected conduct. It doesn’t describe who is involved in the act, where it takes place or whether the parties consented.

“Article 125 is unconstitutional on its face,” Delery said.

Judges questioned how the Texas case applied to Marcum. The case involved two men who said they mutually engaged in sodomy. But, according to the Air Force brief, the victim in Marcum’s consensual sodomy conviction said he awoke to find Marcum, his supervisor, orally sodomizing him. He said he did not protest but instead turned his body away.

The judges also questioned why consensual sexual intercourse would be permissible between members of the same unit while sodomy is prosecuted.

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