Decision Leaves Door Open for Eventual End of Military Sodomy Law, ACLU Says

August 23, 2004 12:00 am

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NEW YORK – Sidestepping the crucial question of whether the military can still regulate the private sexual lives of its personnel, the military’s highest court today upheld an Air Force Sergeant’s sodomy conviction on narrow grounds.

In its ruling, the U.S. Court of Appeals for the Armed Forces upheld the conviction of Technical Sergeant Eric Marcum for consensual sodomy. However, the court did so on the grounds that Marcum’s sexual partner was in his chain of command, which violated military norms, and therefore it didn’t address the broader question of the military sodomy law’s validity.

The military sodomy law, Article 125, applies both to heterosexual and homosexual sodomy regardless of where the act takes place, meaning that even married couples could be prosecuted for committing sodomy in the privacy of their own home. The American Civil Liberties Union, Servicemembers Legal Defense Network, and Lambda Legal Defense and Education Fund had urged the military to strike down Article 125 on the basis of last year’s U.S. Supreme Court decision ending all laws prohibiting consensual sodomy.

“The end of the military’s ability to criminalize private consensual sex is in sight,” said James Esseks, Litigation Director for the ACLU’s Lesbian and Gay Rights Project. “There are at least eight other cases pending before lower military courts that will likely chip further away at Article 125.”

Marcum was convicted of engaging in consensual sodomy with a fellow airman of the same sex in the privacy of Marcum’s own home. Last June, the U.S. Supreme Court issued a decision in Lawrence v. Texas striking down sodomy laws nationwide and providing a right to privacy for all citizens. The friend of the court brief filed by the ACLU, SLDN, and Lambda Legal argued that in light of this decision the military sodomy law must be struck down as well.

In 2001, a blue ribbon panel chaired by retired Judge Walter T. Cox III was tasked to review the Uniform Code of Military Justice (UCMJ) on its fiftieth anniversary. Calling military sodomy prosecutions “arbitrary, even vindictive,” the Cox Commission recommended that Congress repeal Article 125 and replace it with a statute governing sexual abuse similar to laws adopted by many states and in Title 18 of the United States Code. Congress has not acted on the Commission’s recommendations and the law remains in effect. Judge Cox had previously upheld the military’s sodomy law in U.S. v. Fagg, holding the court was bound by Bowers v. Hardwick, which upheld Georgia’s sodomy law. The U.S. Supreme Court has since explicitly overruled Bowers in the recent Lawrence decision.

The American Civil Liberties Union is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.

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.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgendered people, and people with HIV or AIDS through impact litigation, education and public policy work.

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