The U.S. Army Court of Criminal Appeals has struck down the last remaining vestige of sodomy laws in the United States. The outcome of the case, known as U.S. v. Bullock, became known in early December.
The U.S. Supreme Court struck down all of the remaining state sodomy laws in the Lawrence decision, issued in June 2003. But a lingering question remained as to whether Lawrence also applied to Article 125, the sodomy provisions, of the Universal Code of Military Justice ( UCMJ ) . The UCMJ is the equivalent of law within the armed forces.
The courts traditionally have given great deference to the military in managing internal affairs. Constitutional rights may be impinged upon if the military can justify such action, though they do not have a completely free hand to do so.
In this case, Army specialist Kenneth Bullock was convicted of engaging in oral sex with a female civilian in a military barracks. In overturning that conviction, the appeals court cited Lawrence and explicitly extended its precedent to the UCMJ.
'Even in the military you have a zone of privacy and can engage in sexual acts in private that used to be considered criminal,' said Lambda Legal attorney Patricia Logue in explaining the significance of the case.
Servicemembers Legal Defense Network executive director C. Dixon Osburn called the decision 'an encouraging and important first step in recognizing service members' privacy rights. Private, consensual conduct in the bedroom has no impact on the battlefield.'
'What's most remarkable about the case 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,' said James Garland, a professor at Hofstra Law School.
While the Bullock decision involved sex between heterosexuals, Garland believes the decision shifts the burden of proof in discharging gays from the military so that the Pentagon will have to demonstrate how the homosexual activity in question is detrimental to military readiness.
The sodomy provisions of Article 125 have been a prop that legally and emotionally support the antigay policy known as 'Don't Ask, Don't Tell.' The Bullock decision can be seen as another step toward removing that policy.
The Pentagon has the option of appealing Bullock to the Court of Appeals for the Armed Forces or even to the U.S. Supreme Court.
The first body ducked the constitutional issue in August in deciding the case of U.S. v. Marcum. It focused instead upon the fact that Sergeant Eric Marcum engaged in consensual sexual activity with an airman under his chain of command.
It reaffirmed Marcum's guilt because it occurred in a situation 'where consent might not easily be refused.' The court set up a situation where differences in rank are parallel to the legal status of statutory rape, where a minor cannot legally give consent to sexual activity. But it left open the possibility of applying the Lawrence decision in another context.