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U.S. Military Consensual Sodomy Ban Challenged

Below is a press release from the Service Members' Legal Defense Network (SLDN), regarding the United States military's ban on the practice of both homosexual and heterosexual sodomy. This is reposted from an e-mail announcement from SLDN: The Servicemembers Legal Defense Network.

I encourage you to contact your Senators and U.S. Representatives to ask that they support a revision in the Uniform Code of Military Justice (UCMJ) on behalf of all of our men and women in uniform to be free to engage in sexual conduct in the privacy of their own homes. To locate information for your Members of Congress, please visit www.senate.gov and www.house.gov.

SLDN, ACLU and Lambda Legal
Urge Military’s Highest Court to Strike Down Law Banning Consensual Sodomy
Ocotber 4, 2003

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Just months after the U.S. Supreme Court struck down all laws prohibiting consensual sodomy in the nation, Servicemembers Legal Defense Network, the American Civil Liberties Union and Lambda Legal Defense and Education Fund are urging the military’s highest court to strike a similar law from its code of
conduct.

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.

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. In June, the U.S. Supreme Court issued a decision in the Lawrence and Garner V. Texas case which struck down sodomy laws nationwide and provides a right to privacy for all
citizens. The friend of the court brief filed by the groups today argues that in light of this decision Article 125 of the Uniform Code of Military Justice, the military sodomy law, must be struck down as well.

A second friend of the court brief was also filed by noted military sociologist Charles Moskos and eight other social scientists and military experts. Their brief disputes the military’s assertion that consensual sodomy undermines unit cohesion or military effectiveness.

“The government should not imprison people for private, consensual, adult conduct,” said SLDN Executive Director C. Dixon Osburn. “Those who serve our country deserve better than to be subject to a law that is now obsolete.”

“While the military should have the right to regulate the conduct of its personnel to ensure that military operations run smoothly, it has no business interfering in the private, consensual sex lives of our troops,” said James Esseks, Litigation Director of the Lesbian and Gay Rights Project of the ACLU.

“What a servicemember chooses to do while off duty in the privacy of his or her own home has absolutely no effect on national security,” added Art Spitzer, Legal Director of the ACLU National Capital Area.

“This law makes it a crime to have consensual sex behind closed doors—and carries prison terms greater that violent crimes like attempted homicide,” said Pat Logue, Interim Legal Director for Lambda Legal and one of the lead attorneys who handled the Lawrence case for Lambda Legal. “The U.S. Supreme Court said
that these laws violate a fundamental right to privacy.” Oral arguments are scheduled for October 7. A decision from the court could come as soon as the end of the year.

In 2001, a blue ribbon panel chaired by 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.

At least two other cases are moving forward that challenge the military sodomy law. Both of the cases involve heterosexual sodomy. United States v. Edwin J. Christian is currently before the Navy-Marine Corps Court of Criminal Appeals and United States v. Private (E2) Anthonynoel S. Meno is currently before the
U.S. Army Court of Criminal Appeals.

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ATTENTION SERVICE MEMBERS: Under Article 31 of the Uniform Code of Military Justice, you have the right to remain silent and to consult with a defense attorney if you are investigated. Say nothing. Sign nothing. Get legal help. Call SLDN at 202.328.3247.