Last edited: October 25, 2003

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

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

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.

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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

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