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
“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
“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
“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:
“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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