Last edited: October 25, 2003

Military Anti Sodomy Law Under Review

United Press International, October 8, 2003

WASHINGTON—A military appeals court is hearing a case Tuesday that could strip anti-sodomy laws from the military code of justice and extend the privacy protections mandated by the U.S. Supreme Court in June to the sex lives of military personnel.

The Supreme Court released its historic decision in June in Lawrence v. Texas, striking down anti-sodomy laws in Texas and 12 other states. That decision came three years after an Air Force Tech. Sergeant Eric Marcum was convicted in a military court on consensual sodomy charges, among others. He was sentenced to 10 years in prison but has since been released on parole.

His case was already in line for an appeal when Lawrence was decided, says Frank Spinner, Marcum’s lawyer for the appeal.

At issue, Spinner says, is whether military personnel shed their constitutional protections when they don a uniform. While the military is bound by Supreme Court decisions, it has some latitude in interpretation because of its recognized interest in assuring “good order and discipline.”

“Where the lines are drawn between what the government argues and what we are arguing—nothing that distinguishes sodomy statute in the military from the comparable law that existed in Texas and some other states,” Spinner told UPI. “The same rules should apply to military.”

The military is expected to argue that it needs to be able to prosecute for sodomy—oral and anal sex—between any two partners whether same sex or even married—to maintain order.

Spinner and the team of military lawyers defending Marcum will argue Tuesday at the U.S. Court of Appeals for the Armed Forces in Washington that military regulations and laws prohibiting fraternization—inherently coercive sex between members of different ranks in the same chain of command—or adulterous sex, as well as conduct unbecoming of an officer, give adequate coverage.

“Does state or military have a compelling reason to make private sexual activity a crime?” asked James Essex, the litigation director for the American Civil Liberties Union, which wrote a friend of the court brief on the matter.

“When the military says it’s a crime to engage in this act in private, it burdens this fundamental interest that everyone has (for private sexual conduct),” he told UPI.

In Lawrence, the Supreme Court said private sexual conduct is just that: private.

“The petitioners are entitled to respect for their private lives,” Justice Anthony Kennedy wrote for the court’s majority. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

“We’ll grant you have a compelling interest (in good order and discipline). But that doesn’t relieve the military of explaining why or how making certain private sexual acts a crime,” Essex said.

The ACLU is not alone. An independent commission on military justice recommended to the Pentagon in 2001 that it strip the anti-sodomy and anti-rape regulations from the Universal Code of Military Justice and replace it with a general moral penal code.

“(T)he well-known fact that most adulterous or sodomitical acts ... are not prosecuted creates a powerful perception that prosecution of this sexual behavior is arbitrary and vindictive,” the Cox Commission wrote in 2001.

The Pentagon has not acted on the recommendation.

Homosexuality and homosexual conduct has been a hot-button issue for the military for the past 10 years since the congressional ban on gays in the military was replaced by the current “don’t ask, don’t tell” policy.

“We think ‘don’t ask’ is unconstitutional, but a ruling (for Marcum) will not necessarily affect ‘don’t ask,’” Essex said.

Nearly all of the consensual sodomy cases arise either out of a search for gay service members and/or a jilted lover seeking revenge. At least two other cases are moving forward that challenge the military sodomy law, both of which involve heterosexual sodomy as well as adultery: United States v. Edwin J. Christian, now before the Navy-Marine Corps Court of Criminal Appeals and United States v. Private (E2) Anthonynoel S. Meno, currently before the U.S. Army Court of Criminal Appeals.

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