Sodomy case on appeal in a military court may leverage Lawrence into a ban-busting effort
December 15 marked the tenth anniversary of the passage of “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harrass,” the law signed by former Pres. Bill Clinton that bans out gay and lesbian servicemembers from serving in the nation’s armed forces.
Legal advocates and gay rights activists eager to overturn the law have undertaken various initiatives to highlight what they consider its injustices, not least of which is the mandatory combat service of thousands of troops, including gays and lesbians who must serve in silence, called up to serve in combat in Iraq, Afghanistan, and elsewhere as the Bush administration prosecutes the war on terrorism.
No accurate statistics exist that identify the number of active duty gay and lesbian service members, but military experts put the number somewhere between two and eight percent.
Following the Supreme Court’s 5-4 decision in Lawrence v. Texas to overturn the nation’s remaining sodomy laws, Don’t Ask, Don’t Tell may be vulnerable to annulment, according to some legal experts, either by the passage of legislation, or more likely, by judicial decree.
The United States Court of Appeals for the Armed Forces (CAAF) is the highest court that adjudicates criminal cases brought against service members who are accused of violating the Uniform Code of Military Justice (UCMJ). Article 125 of the UCMJ is the military’s version of an anti-sodomy law criminalizing anal and oral sex.
The case of one airman, Technical Sergeant Eric Marcum, is on appeal before the CAAF and legal experts predict that the five-member panel of adjudicators will hand down a decision by the end of the year.
A court martial convicted Marcum of having consensual sodomy with another male member of the Air Force. Marcum was sentenced to ten years in prison, but is currently free on parole. But, he is seeking to have his 2000 conviction overturned.
When handed down, the decision in the Marcum case may become the first major test of whether the Lawrence sodomy decision is applicable to the military. If the CAAF denies Marcum’s appeal, legal advocates plan to file an appeal with the only remaining venue available—the same Rehnquist court that decided Lawrence v. Texas.
“I am convinced that Article 125 is unconstitutional and there has been no compelling argument on the part of the military why there should be restrictions on private consensual conduct,” said Pat Logue, the legal director at Lambda Legal Defense and Education Fund. Logue played a key role in preparing the plaintiff’s arguments in Lawrence as well as filing an amicus, or friend of the court, brief on behalf of Marcum. Logue said she did not expect an Article 125 crackdown should the CAAF uphold Marcum’s conviction. However, she spared no language in denouncing the military’s sodomy ban, particularly its incongruity with the reasoning laid down by the Supreme Court in Lawrence.
On October 2, just as oral arguments were being heard in the Marcum appeal, Logue and other LGBT legal advocates issued a press release in which she said, “This law makes it a crime to have consensual sex behind closed doors—and carries prison terms greater than violent crimes like attempted homicide.”
Joining Lambda Legal in filing the amicus brief were the Servicemembers Legal Defense Network (SLDN) and the American Civil Liberties Union (ACLU). SLDN advocates for active duty gay and lesbian service and is a military watchdog group.
James Esseks, the litigation director of the ACLU Lesbian and Gay Rights Project, said that Article 125 was added to an updated version of the military’s laws in the 1950s lifted directly from the former Maryland sodomy statute. He acknowledged that the Marcum appeal is a watershed case given the dearth of legal precedents for Article 125 coming under such close scrutiny.
Esseks stated that fundamentally, legal precedents aside, the CAAF might overturn Marcum’s sodomy conviction based on an appreciation of how broadly the majority opinion in Lawrence framed the issues of privacy and liberty. Furthermore, according to Esseks, practicality might prevail.
“The military here does not have any interest at stake which undermines the military,” he said. “Soldiers have vaginal sex all the time and it is not a crime and it does not undermine the military.” There are two other cases of Article 125 convictions, both of heterosexual men, pending in respective branches of the armed forces: United States v. Anthonynoel S. Meno before the Army’s highest appeals court and United States v. Edwin J. Christian before the court that hears appeals for the Navy and Marine Corps.
The underlying issue of how much freedom a service member forfeits when he or she dons the uniform is one which the Supreme Court has examined before in cases that dealt with religious garb, the male-only draft, as well as Don’t Ask, Don’t Tell.
However, none of those other decisions were ever as politically polarizing as the Lawrence case in which a dissenting Justice Antonin Scalia scoffed at the majority’s liberty-based rationale and warned that the decision opened the door to gay marriage.
In fact, the recent decision of the Supreme Judicial Court in Massachusetts cited the Lawrence ruling in underscoring its directive to the legislature to clearing the way for same-sex marriage.
Undoubtedly, opponents of Don’t Ask, Don’t Tell intend to leverage the CAAF decision in the Marcum case in as favorable a light as possible to generate support for lifting the ban on gay and lesbian troops.
Aaron Belkin, a professor at the University of California at Santa Barbara, heads the Center for the Study of Sexual Minorities in the Military (CSSMM), a policy group that has compiled data on the effect of Don’t Ask, Don’t Tell on military preparedness. Belkin said that no hard data exists to prove that when a servicemember comes out of the closet, unit cohesion suffers. His group is undertaking a major study of wartime accounts dating back to the Second World War in which gay and lesbian veterans describe the effect of being out during wartime, specifically how one’s sexual orientation impacts on combat unit effectiveness.
Belkin argued that anecdotally, according to the many active-duty troops who have contacted his organization, being out does not damage moral nor combat effectiveness.
“In one study, 20 percent of the military said they knew a gay peer,” he said.
As part of its ongoing effort to accumulate data, particularly with the goal of overturning Don’t Ask, Don’t Tell, Belkin’s group has established the Military Education Initiative (MEI). A December 11 news release described the MEI as a “non-profit project whose mission is to open a dialogue on the topic of gays in the military with America’s 27 million plus military veterans.”
California-based CSSMM’s decision to establish an ancillary policy group in Atlanta dedicated to reaching out to veterans is considered smart strategy by many of those who witnessed the effect that veterans had on the debate ago, when many warned of the severe detrimental impact allowing homosexuals to serve openly in the military would cause.
Jeff Cleghorn, who had been an SLDN attorney since 1999, was named to lead the MEI. Cleghorn said that researchers need look no further than to the top two military allies of the United States—Israel and Great Britain—to examine the effect of gays serving openly in the military where gay troops regularly accompany their straight counterparts into battle. British gay troops serve in Iraq, in some cases alongside American soldiers.
One of Cleghorn’s first major undertakings at MEI is a public education initiative that will examine the attitudes of veterans and the national groups that represent them, such as the American Legion and The Veterans of Foreign Wars. Four cities will be targeted: Atlanta, San Francisco, Seattle, and San Diego. Both Seattle and Sane Diego, said Cleghorn, have significant military facilities based there and would serve as ideal sites to glean data.
“A grass roots strategy as well as winning court cases are the best strategy right now for overturning Don’t Ask, Don’t Tell,” said Steve Ralls, SLDN spokesperson. Given Republican control of Capitol Hill, he said organizing on the ground was necessary to maintain the momentum against the military ban.
“We will lose any action on Capitol Hill right now,” he said.
When asked if he viewed the establishment of the MEI as an encroachment upon SLDN policy turf, or as weakening the efficacy of the push to overturn the military’s ban on gays, Ralls countered that different groups––including American Veterans for Equal Rights (AVER), a national LGBT veterans advocacy organization—are able to tackle different facets of the effort.
“AVER is instrumental in pulling together veterans groups and CSSMM does phenomenal research on the experiences of active duty gay and lesbian service members,” he said.