Legal Scholars Assess Impact
of Reversal of Military Sodomy Conviction
Center
for the Study of Sexual Minorities in the Military, December
10, 2004
University of California, Santa Barbara
Contact: Nathaniel Frank, Senior Research Fellow
805-893-5664
SANTA BARBARA, CA—The legal
community today offered several interpretations of the recent ruling by a
military court invalidating a sodomy conviction of a male Army Specialist with
a female civilian. The decision, handed down by the Army Court of Criminal
Appeals, said that Article 125 of the Uniform Code of Military Justice, which
prohibits “unnatural carnal copulation,” was not “constitutionally
applied in this case.”
What’s most remarkable about the case,” said James
Garland, Visiting Associate Professor at Hofstra Law School, “is that the
Court of Appeals concluded that sex in the barracks itself has an insufficient
military connection to overcome the essentially private and personal character
of that activity.” He said that this case appears to establish a liberty
interest in private sexual activity that “should give gay and lesbian
soldiers a stronger basis for challenging discharges that target their sexual
identity.” A fair reading of this case, he said, could shift the burden of
justifying a gay discharge to the military itself, which would have to
demonstrate the detriment to military readiness of permitting private
homosexual conduct.
The case, U.S. v. Bullock,
is one of the first to be tried after Lawrence
v. Texas, the landmark Supreme Court ruling that struck down state
laws banning sodomy in June 2003, and it is said to be the first instance of a
military court upholding the right to oral sex by consenting adults. The court
cited the Lawrence case in its decision, saying the Supreme Court had
recognized “an emerging awareness that liberty gives substantial protection
to adult persons in deciding how to conduct their private lives in matters
pertaining to sex.”
Generally, legal scholars applauded the recent ruling.
“This is a positive decision,” said Beth Hillman, Assoc Professor of Law
at Rutgers University, Camden. Although this decision does not change the
Uniform Code of Military Justice, she said it is “a step toward narrowing
its application to the point where we will see it fall out of use.” Prof.
Hillman explained that the first case to assess the impact of Lawrence on the
military’s sodomy regulations was the Marcum case, in which military judges
said courts must “engage in a searching constitutional inquiry” in order
to justify limiting the right to sexual liberty. “This is the lower court
trying to follow that rule and trying to find out if the liberty recognized by
Lawrence has real meaning in the military. And it is now saying it does. That
is a step in the right direction toward protecting the rights of service
members to engage in private sexual behavior. This keeps Article 125 from
reaching the sort of private consensual behavior that the military has no
business criminalizing.”
Both military and civilian courts have frequently held
that the military is a distinct world with its own laws and customs, not
always subject to the constraints and constitutional guarantees of civilian
life. In this case, however, drawing on the Marcum decision, the military
court asked if the conduct in question was “of a nature to bring it within
the liberty interest identified by the Supreme Court” in the Lawrence
decision. In order to uphold a sodomy conviction post-Lawrence, said the
court, it must be established that the behavior was “outside the liberty
interest” identified in Lawrence. It found in this case that the sexual
encounter was private and consensual and lay “squarely within the liberty
interest” identified by Lawrence.
“The court’s analysis is quite promising, said Tobias
Wolff, Assistant Professor of Law at the University of California, Davis, Law
School. “It holds that soldiers enjoy the same liberty rights to private,
consensual sex that civilians do, subject to certain restrictions involving
relations between military personnel.” He said it was remarkable that the
court recognized that this liberty extends to the barracks as well as to
off-base activity.
Aaron Belkin, Associate Professor of Political Science
and Director of the Center for the Study of Sexual Minorities in the Military
at the University of California, Santa Barbara, agreed about the importance of
seeing a military court recognize that adult consensual sex in private has no
bearing on the military mission when subject to proper limits involving
military relationships. “The court ruled that the appellant’s case showed
no military necessity to limit his freedom to engage in sexual behavior that
harmed no one,” he said. “It’s an important step forward that such a
court is now recognizing that guaranteeing these rights has no impact on
military effectiveness.
The impact of the court ruling on “don’t ask, don’t
tell,” which is a separate statute from the Article 125 sodomy ban, remains
unclear.
According to Belkin, the military’s sodomy ban is only
one part of the justification for the ban on openly gay service members.
“Another part of the public rationale is that the presence of gay soldiers
makes straight soldiers uncomfortable, and thus threatens unit cohesion.”
Garland cautioned that military courts have made clear that they would
continue to entertain arguments by the military that there is a military
interest in regulating private homosexual sex. This is because courts have
frequently accepted the military’s reasoning that simple awareness that a
member of a unit has engaged in such sex could polarize a unit.
Others were more confident that the recent ruling spells
the beginning of the end of the gay ban. “This decision signals the eventual
demise of ‘don’t ask, don’t tell,’ said Diane H. Mazur, Professor of
Law at the University of Florida Levin College of Law. She said that since the
Lawrence decision, it has become “much more difficult for the military to
justify either the sodomy restriction of Article 125 or the ‘don’t ask,
don’t tell’ policy. Lawrence rests on the fundamental premise that all
people have a constitutional liberty interest in personal intimacy.
Military people deserve no
less.”
Bridget Wilson, an attorney who serves in the California
State Military Reserve and who is an expert on the legal status of U.S.
military personnel, said the larger impact of this decision would depend on
whether a higher court upholds this court’s reasoning. “The question is
whether the military court can make the analysis it’s made and get away with
it,” she said. “Or is a higher court going to say that the court system
cannot add its own element of military detriment?” She was referring to the
court’s reasoning that the sodomy conviction should be reversed because,
despite the existing ban on sodomy, the facts of the case had not demonstrated
a “military necessity to circumscribe” the appellant’s liberty interest
in the conduct in question. “I think there’s a question of whether the
court’s analysis works because it’s not the job of the court to redefine
the crime,” she said.
###
The Center for the Study of Sexual Minorities in the
Military is an official research unit of the University of California, Santa
Barbara. The Center is governed by a distinguished board of advisors including
the Honorable Lawrence J. Korb of the Center for American Progress, Honorable
Coit Blacker of Stanford University and Professor Janet Halley of Harvard Law
School. Its mission is to promote the study of gays, lesbians, and other
sexual minorities in the armed forces. More information is available at www.gaymilitary.ucsb.edu
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