Military’s Highest Court Hears Oral Arguments in Historic Case Challenging
Consensual Sodomy Ban
Court Appears to Question Military’s Argument
Regarding Unit Cohesion
Servicemembers
Legal Defense Network, October 7, 2003
Contact: Steve Ralls 202-328-3244, ext. 116
sralls@sldn.org
Washington, D.C.–The U.S. Court of Appeals for the
Armed Forces, the military’s highest court, heard arguments today in the
case of United States v. Marcum. Technical Sergeant Eric Marcum was convicted
of consensual sodomy with a fellow airman of the same sex in the privacy of
Marcum’s own home. Counsel for Servicemembers Legal Defense Network (SLDN)
argued today that the U.S. Supreme Court’s Lawrence v. Texas decision
overturning state sodomy laws also invalidates the military’s
criminalization of private, consensual sodomy, known as Article 125.
SLDN, along with the American Civil Liberties Union and Lambda Legal
Defense & Education Fund, submitted a friend of the court brief in the
Marcum case last week. Nine senior retired military members, all SLDN honorary
board members, also joined the organizations’ brief. A second friend of the
court brief has been filed by nine other noted military scholars, including
Dr. Charles Moskos. An architect of the military’s “Don’t Ask, Don’t
Tell” law, Moskos disputes the military’s assertion that decriminalizing
consensual sodomy would undermine unit cohesion. (Both briefs are available
online at www.sldn.org.)
SLDN Director of Law & Policy Sharra E. Greer, who attended today’s
arguments, reported that the court seemed to take issue with the military’s
assertion that consensual sodomy could be held to a different standard than
vaginal intercourse. “At least two of the justices were reluctant to
differentiate between private, consensual sexual acts,” Greer said. “It
seemed clear that those same justices had serious reservations about whether
one consensual sexual act could be more or less detrimental to unit cohesion
than another.”
A decision in the Marcum case could come by the end of the year.
# # #
Servicemembers Legal Defense Network is a national, non-profit legal
services, watchdog and policy organization dedicated to ending discrimination
against and harassment of military personnel affected by ‘Don’t Ask,
Don’t Tell’ and related forms of intolerance. For more information, visit www.sldn.org.
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