Military Court Sidesteps Sodomy Challenge

Armed services highest court considers Lawrence precedent, but makes no constitutional finding

Ruling on the appeal of a consensual sodomy conviction of an Air Force sergeant, the highest appeals court of the U.S. military found that the conduct in question was not protected by the Constitution.

In its August 23 ruling, the Court of Appeals for the Armed Forces found it unnecessary to address whether Article 125 of the Uniform Code of Military Justice, the sodomy law for the armed forces, is unconstitutional, because of the facts in a case where a sergeant, Eric Marcum, performed oral sex on a man in his command.

Judge James E. Baker’s opinion includes a lengthy discussion of the Supreme Court’s 2003 decision in Lawrence v. Texas, which struck down the Texas “Homosexual Conduct Act” as a violation of protected liberty under the “due process clause.” In that decision, Justice Anthony Kennedy placed the right of consenting same-sex couples to engage in sex within the same sphere of liberty that the court had previously described as a “fundamental right” for married couples and unmarried heterosexual couples.

That language has led some observers to conclude that the Supreme Court in fact recognized a “fundamental right” to engage in gay sex. However, the Supreme Court ‘s critique of the Texas law was centered on the finding that it “furthers no legitimate state interest,” language the Supreme Court had previously used in cases concerning constitutional challenges to laws that did not involve “fundamental rights”—a body of rulings known as “rational basis” cases. This has led some, including Lawrence dissenter Justice Antonin Scalia, to argue that the Court did not recognize a “fundamental right” to engage in gay sex, but merely that the Texas law was not sustained by any legitimate state interest—that it had no rational basis, instead resting solely on the impermissible ground of moral disapproval of gay people.

This dispute about what the Lawrence v. Texas decision means has become a recurring issue, with many lower courts taking the view that Lawrence was a narrow ruling, while a few others have considered it to be much more significant as a tool to combat anti-gay discrimination.

Baker found that it was unnecessary for the military high court to rule on the military’s sodomy ban, because the five-person court found that Marcum’s conviction did not involve the liberty interest identified in the Lawrence case. In carefully setting out the scope of its holding in Lawrence, the Supreme Court stated that the case did not involve a person “who might be coerced” or a “relationship where consent might not easily be refused.” According to Baker, those descriptions applied to this case.

The evidence summarized by the court found that Marcum socialized with several enlisted men under his command. After a party, he and Senior Airman Robert O. Harrison ended up back at Marcum’s apartment. Both had been drinking. Harrison passed out on the couch wearing shorts and a T-shirt, and awoke to find Marcum performing oral sex on him. Harrison pulled up the covers and turned away from Marcum and the incident ended.

Harrison and Marcum had previously been friends and slept together without having sex, which may have led Marcum to believe that Harrison was interested in sexual contact with him.

Harrison testified that he subsequently confronted Marcum and told him, “I just want to make it clear between us that this sort of thing doesn’t ever happen again.” Harrison testified that he hadn’t stated any protest at the time of the incident because he did not know how Marcum would react, but that Marcum’s actions made him scared, angry and uncomfortable. But he remained very friendly with Marcum, describing their relationship as “a father-son type relationship or big brother, little brother type relationship.”

Baker noted that the military has customarily sought to discourage undue familiarity in personal relationships between officers and enlisted men, especially the enlisted men over whom officers have direct command, and that there are regulations specifying what would be considered “unprofessional conduct” for which discipline might be imposed, such as the sexual contact between Marcum and Harrison. In weighing Marcum’s argument that the oral sex was constitutionally protected, Baker found it appropriate to consider such arguments in the military context, and in light of the command relationship between the two men.

The opinion does not specify the events leading to Marcum’s investigation and subsequent prosecution, which involved allegations of sexual activity and other misconduct involving several different enlisted men. Marcum was charged, among other things, with forcible sodomy against Harrison, but the military jury was evidently not convinced that force was used and that the circumstances might suggest a consensual relationship, so it convicted of the “lesser-included offense” of consensual sodomy. Baker accepted that conclusion, but then found that the Supreme Court had left outside the sphere of protected liberty the right to coerce or to use one’s command position for sexual access, finding that the military would have rational reasons for discouraging sexual relationships between officers and the men they command.

While upholding his conviction, however, the military high court found that Marcum’s six-year prison sentence had to be reversed for reconsideration in a new trial because of actions by Marcum’s defense attorneys during the sentencing phase of the case.

Following his conviction, but before the sentencing phase of his trial, Marcum went AWOL, and after several postponements, the sentencing hearing was held without him. Since Marcum was not there to testify, his defense attorneys submitted detailed notes that the defendant had supplied his counsel for trial preparation regarding all his sexual encounters with enlisted men—half a dozen in all. Those notes were covered by attorney-client privilege and although Marcum testified about his other sexual encounters at trial, he did not do so in the graphic detail reflected in his notes. The military prosecutor made much of these graphic details, arguing for a tough sentence in part based on both the specifics spelled out and the non-repentant attitude the notes displayed. Marcum was ultimately convicted on several counts.

The military high court found that Marcum had not authorized his lawyers to disclose these notes to the court as evidence, and that the result had prejudiced his sentencing hearing. One member of the appeals court disagreed, accepting the government’s argument that by going AWOL, Marcum had given up his right to protest the release of those notes.

The underlying implication for future military sodomy prosecutions is that the Court of Appeals for the Armed Forces demonstrated considerable sensitivity about the difficult analytical challenges posed by the Lawrence decision. Some legal experts predict that the court is banking on Congress restructuring Article 125 to clearly limit its application to situations that do not pose constitutional problems.

In its statements in support of Article 125, the government raised the military’s Don’t Ask, Don’t Tell ban, but the court made short shrift of that argument, noting that the anti-gay personnel policy was adopted in 1993, at a time when Congress presumed that gay sexual conduct could legitimately be subject to criminal prosecution. The military high court clearly recognizes that the Lawrence decision has changed that, so its refusal to directly tackle Article 125’s constitutionality does not necessarily reflect its views on the constitutionality of Don’t Ask, Don’t Tell.

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