Military Sodomy Ruling Offers Hope

Army appeals court throws out oral sex conviction, with implications for gay soldiers

For those legally challenging the U.S. military’s “Don’t Ask, Don’t Tell” policy that prevents gays and lesbians from serving openly in the armed forces, an army court’s November 30 ruling provided a glimmer of hope that they might prevail.

The decision by the Army Court of Criminal Appeals in U.S. v Bullock overturned the sodomy conviction of a soldier who engaged in oral sex with a female civilian in his barracks room, stating that constitutional privacy rights allow service personnel to engage in certain consensual sex acts without interference, even if such acts are criminal under Article 125 of the Uniform Code of Military Justice.

Article 125 prohibits service-members from engaging in oral or anal sex, and establishes penalties of dishonorable discharge and up to five years imprisonment.

As a basis for its decision the Army court cited the U.S. Supreme Court’s 2003 ruling in Lawrence v Texas, writing that Lawrence had demonstrated, “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Lawrence v Texas overturned the nations anti-sodomy laws. The Supreme Court ruled that the due process clause of the U.S. Constitution’s 14th Amendment guaranteed gays and lesbians the right to privacy when engaged in intimate relationships, and that consenting adults were allowed to engage in sodomy without threat or fear of government regulation.

The two major cases now before the courts suing for an end to DADT both rely on Lawrence, claiming that the military’s policy, established when Pres. Bill Clinton failed in his effort to open up military service to openly gay and lesbian soldiers, is unconstitutional.

Sharra Greer, the legal director for the Service Members Legal Defense Network (SLDN), represents 12 former military personnel all discharged for being gay, who are now suing to be reinstated. She called the Bullock ruling “good news with qualifications.”

“While 125 is a rhetorical pillar that upholds ‘Don’t Ask, Don’t Tell’ it is not the only argument for its presence,” she said.

This view was seconded by Aaron Belkin, director at the University of California at Santa Barbara’s Center for the Study of Sexual Minorities in the Military. The military has always argued that because sodomy is a criminal act under 125, allowing gays to serve would amount to harboring criminals, according to Belkin.

Two other major arguments that are cornerstones of the DADT policy are that given widespread social disapproval of homosexuality, openly gay soldiers would undermine unit cohesion, and that the presence of gay men and lesbians in the military violates the privacy rights of heterosexual soldiers in areas like common showers.

“However, the Bullock ruling is an important first step, and if eventually expanded to eliminate 125, it will knock out one pillar of Don’t Ask, Don’t Tell,” Belkin said.

Marty Meekins, a lawyer at White and Case, represents the Log Cabin Republicans in that organization’s lawsuit to overturn DADT on behalf of members currently serving in the military.

“I am very heartened by the Bullock decision,” he said. “It is very consistent with our view of Lawrence v Texas. The government will have a hard time arguing that the right to privacy doesn’t exist for gays and lesbians in the military.”

According to Tobias Barrington Wolff, professor of constitutional law at the University of California at Davis, the military rules on sodomy have always been at the core of DADT.

“Sodomy is a conduct violation in the military. The military has always used the statement ‘I am gay’ as evidence that a soldier has a propensity to commit these conduct violations,” he said.

Wolff termed the Bullock ruling, “significant,” saying that it puts several rationales that uphold DADT into question.

“The court without comment applied privacy rights to a barracks room, where before it has usually ruled that such rights do not necessarily apply in the military,” he said.

The Bullock ruling followed in the wake of an earlier case, U.S. v. Marcum, heard before the Court of Appeals for the Armed Forces (CAAF), in which a gay soldier was convicted and discharged under Article 125. In its decision, the CAAF found that Marcum’s discharge was allowable because he engaged in sexual acts with a subordinate, which took him beyond any constitutional protections. However, the CAAF also said that all courts must now “engage in a searching constitutional inquiry” when considering the limits to a soldier’s private sexual interaction. In ruling in Marcum, the court made no mention of the fact that the sexual conduct was between two men.

“While not closely linked legally, it is good to see a court not differentiating the gender of the involved individuals,” Greer said of the positive elements found even in U.S. v. Marcum. “The rights of privacy should be the same for gay and heterosexual people.”

Wolff said both cases signaled it was time that DADT be eliminated.

“The evidence is overwhelming that it is unnecessary, counterproductive and unjust,” he said.

Wolff said he would like to see Congress overturn the policy.

“Not only would it make it more palatable to mainstream America, but it is important that lawmakers repeal unconstitutional laws and pass constitutional ones,” he said.

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