Pentagon lawyers are proposing to change the military's sodomy statutes to bring them more in line with current civilian laws and the Supreme Court's 2003 decision that threw out state sodomy laws, according to an April 21 account in The New York Times.
But the ink had barely dried on the newsprint before the military backtracked. Responding to a question at a regular Pentagon briefing, spokesman Lawrence DiRita said that consensual sodomy will 'continue to be a crime' as it is a threat to 'good order and discipline' within the armed forces.
According to the initial article, lawyers in the office of the general counsel were proposing changes in Article 125 of the Uniform Code of Military Justice ( UCMJ ) that would decriminalize consensual sex. Acts with minors and those involving force would remain illegal.
Those modifications mirror changes in society, civil law, and the Supreme Court's decision in Lawrence v. Texas. They also are in line with recommendations made by a panel of senior retired military lawyers in 2001. They would have to be implemented by act of Congress, which generally adopts changes in regulations that the Pentagon puts forward.
Most have seen those provisions of the UCMJ as a serious impediment to gays serving in the military as they maintain the presumption of engaging in illegal acts. While Article 125 applies to both heterosexuals and homosexuals, it has been applied selectively and generally in a discretionary manner against gays.
Sharra E. Greer, director of law and policy for the Servicemembers Legal Defense Network ( SLDN ) , said the recommended changes came after two years of study by military lawyers. They also reflect the fact that military courts of appeal have overturned two consensual sodomy convictions in light of the Lawrence ruling.
There is a suggestion that the Pentagon's reversal, as expressed by DiRita, represents a triumph of political considerations over matters of law, at least for the short term.
'Pentagon leaders cannot run and hide from the Constitution,' Greer said. 'If they truly believe that they can ignore the Lawrence decision and that the prohibition on consensual sodomy remains valid, they must be asked: Why did they recommend that Congress repeal that prohibition if they remain confident that it is legal and constitutional?'
Momentum continues to build for repeal of 'Don't Ask, Don't Tell,' the antigay policy that precludes gays and lesbians from serving openly in the military.
The story of Robert Stout, 23, an Army sergeant wounded in Iraq and awarded the Purple Heart, has drawn extensive coverage in the media. He acknowledges that he is gay and wants to continue to serve but he faces the threat of being jailed and discharged from the Army for having said that he is gay.
This has prompted many newspapers to write editorials calling for repeal of the policy. Among them are the usual suspects of the Washington Post and New York Times, but also some unexpected publications, such as the Charleston Gazette in West Virginia.
The California Senate has gone on record as favoring repeal. This is the first time that a state legislative body has done so.
