Issue Date: September 13, 2004

Military court upholds sodomy ban
Ruling doesn’t close door on future challenges

By Deborah Funk
Times staff writer


The military’s highest court has ruled that the armed forces’ ban on consensual sodomy between both gays and heterosexuals is constitutional in certain cases, despite a Supreme Court ruling last year that struck down state anti-sodomy laws.
However, the U.S. Court of Appeals for the Armed Forces left open the possibility that it might rule differently in future cases involving the military ban on consensual sodomy, codified in Article 125 of the Uniform Code of Military Justice.

“The court sidestepped the issue of whether Article 125 is unconstitutional,” said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, which argued on behalf of the defendant in the case, former Air Force Tech. Sgt. Eric Marcum.

The military court found that the sexual relationship Marcum had with a male senior airman whom he supervised and rated fell outside the protections of last year’s ruling in Lawrence v. Texas, in which the Supreme Court found that private, homosexual sexual activity between consenting adults is not a crime.

The military court pointed out the Texas case did not involve a situation in which someone “might be coerced” or was in a “situation where he might not easily refuse.”

In that context, “the nuance of military life is significant,” the court wrote.

Air Force policy bars sexual contact between personnel of different ranks in the same chain of command. Because Marcum was the airman’s supervisor and rater, the airman was someone who might be coerced or might not easily refuse, the court said.

Marcum, a former cryptologic linguist stationed at Offutt Air Force Base, Neb., was convicted in 2000 of consensual sodomy and sentenced to 10 years in jail. His sentence later was cut to six years, and he now is on parole. He challenged his conviction last year after the Supreme Court decision in the Texas case.

The military court ruled that Marcum’s case fell within the protections of the Supreme Court ruling in that a jury did not convict him of forcible sodomy, and the act occurred off base and in private. But the military court also said the fact that Marcum had sex with a direct subordinate ultimately pushed his case outside the protections of the Texas ruling.

The Texas case involved two consenting adults who had a romantic relationship in which the possibility of force was never an issue, and it specifically did not involve people who could be injured or coerced, the military court said. In the Marcum case, the subordinate slept on Marcum’s couch after a night of drinking and awoke to find the technical sergeant performing oral sex on him. The airman testified he was too scared to protest.

Despite the military court’s ruling, legal experts said the definitive statement on the constitutionality of Article 125 in light of the Supreme Court ruling has yet to be made.

“It certainly is regrettable ... that the state of the law will remain uncertain for somewhat longer,” said military law expert Eugene Fidell. “Marcum may not have been the perfect case to test Article 125 in light of Lawrence v. Texas. There will be others, I am sure, that may present the constitutional question more crisply.”

Indeed, SLDN is already working toward moving such cases forward. “SLDN will now consider all options regarding further challenges” to Article 125, Osburn said.

Even without answering the broader issue of whether Article 125 is unconstitutional on its face, the military court ruling may still affect future sodomy cases, said retired Coast Guard Capt. Kevin Barry, a former military judge.

In the wake of the Marcum case, it would be difficult for the military to use Article 125 to prosecute “married people who engage in oral sex, or a service member who engages in oral sex with someone not in the service who is an adult and is fully consenting,” Barry said. “These would have been considered offenses in the past.”

The Cox Commission, a panel of military law experts, suggested in 2001 that the military’s rape and sodomy laws were outdated and should be replaced with criminal sexual misconduct provisions that mirror civilian law.

Defense officials never acted on that recommendation.

Osburn pointed out that Article 125 bars service members from engaging in consensual sodomy, to include oral or anal sex.

Osburn said a Rand Corp. study found at least 80 percent of service members regularly violate Article 125.

“Private, consensual conduct in the bedroom has no impact on the battlefield,” Osburn said. “Our country right now needs to fight terrorists, not pry into people’s private lives.”

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Ellie