Last edited: October 25, 2003

Remove Sodomy From Military Law Gay Advocates Urge, October 2, 2003

By Doreen Brandt, Newscenter, Washington Bureau

Washington, D.C.—The military’s highest court is being urged to remove sodomy laws from the code of conduct. When the US Supreme Court nine months ago struck down sodomy laws in Texas and other states, the ruling did not affect the Uniform Code of Military Justice.

The military sodomy law, section 125, applies both to heterosexual and homosexual sodomy regardless of where the act takes place, meaning that even married couples could be prosecuted for committing sodomy in the privacy of their own home.

Technical Sergeant Eric Marcum was convicted of consensual sodomy with a fellow airman of the same sex at Marcum’s home. At least two other cases are moving forward that challenge the military sodomy law. Both of the cases involve heterosexual sodomy.

 Today three LGBT rights groups filed friend of the court briefs on Marcum’s behalf. Lambda Legal, the ACLU, and Servicemembers Legal Defense Network argue that in light of the Supreme Court ruling Article 125 must be struck down as well.

An amicus kbrief was also filed today by noted military sociologist Charles Moskos and eight other social scientists and military experts. Their brief disputes the military’s assertion that consensual sodomy undermines unit cohesion or military effectiveness.

“This law makes it a crime to have consensual sex behind closed doors— and carries prison terms greater that violent crimes like attempted homicide,” said Pat Logue, Interim Legal Director for Lambda Legal and one of the lead attorneys who handled the Lawrence case for Lambda Legal.

“The U.S. Supreme Court said that these laws violate a fundamental right to privacy,” said Logue.

“The government should not imprison people for private, consensual, adult conduct,” said SLDN Executive Director C. Dixon Osburn. “Those who serve our country deserve better than to be subject to a law that is now obsolete.”

James Esseks, Litigation Director of the Lesbian and Gay Rights Project of the ACLU argues that while the military should have the right to regulate the conduct of its personnel to ensure that military operations run smoothly, it has no business interfering in the private, consensual sex lives of the troops.

“What a servicemember chooses to do while off duty in the privacy of his or her own home has absolutely no effect on national security,” said Art Spitzer, Legal Director of the ACLU National Capital Area.

In 2001, a blue ribbon panel chaired by Judge Walter T. Cox III was ordered to review the Uniform Code of Military Justice (UCMJ) on its fiftieth anniversary. Calling military sodomy prosecutions “arbitrary, even vindictive,” the Cox Commission recommended that Congress repeal Article 125 and replace it with a statute governing sexual abuse similar to laws adopted by many states and in Title 18 of the United States Code.

Congress has not acted on the Commission’s recommendations and the law remains in effect.

Oral arguments are scheduled for next week with a decision likely late this year.

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