Interestin’. It would almost be a straight “unit cohesion” thang (and I’d be dead wrong), except for Finding #13, which throws a monkey wrench into the whole thing. Finding 13 is kind of jarring - all of the other findings tend to flow from one another, but #13 just kind of sits there all by itself.
Sua
IANAL, nor am I anywhere up to date on the UCMJ. I was, however, brought up on charges for being a lesban while serving in the Army. The charges were for sodomy and indecent acts. I don’t recall any of the charges saying “because you are gay”. At the time, this was the part of the UCMJ that they used against gays/lesbians to discharge you. This was back in 1989, before the “don’t ask don’t tell” stuff. (btw, I was able to beat the charges and completed my enlistment)
I don’t see the recent SCOTUS ruling changing anything for the military. If they decend they don’t want their troops commiting sodomy and they enforce it across the board, then it’s doubtful that any court would be able to change that. Homosexuals would still have to hide, or be discharged.
What would be helpful would be for everyone to admit that sodomy (oral/anal) can be a part of a healthy sexual relationship and to stop making silly laws about it. Is there really a large percentage of the population that doesn’t include oral sex as part of their sex life? At least in forplay?
Sua,
Could the difference in prosecution bring about the defeat of the sodomy law in the UCMJ?
If two men head on out on leave and both get blow jobs, one from a female and one from a male and are discovered and only the gay man is tried and discharged would there be an ‘equal protection’ issue at work?
And I could just see how things would go if ALL such cases resulted in courts-martial.
Jonathan Chance,
Currently, under Art. 125 of the UCMJ, both heterosexual and homosexual sodomy are criminal. Under the Gates case I cited to in the second post of this thread (no link, sorry), the Court of Military Appeals (the highest appeals court under U.S. Military Law, subject only to U.S. Supreme Court review) upheld a conviction for “private, nonadulterous, noncommercial, consensual, heterosexual fellatio.” So with regard to an equal protection challenge to the law on its face, the law applies equally to all persons.
There is, however, a question of whether the law is applied equally. The answer is obviously not, but it’s really hard to get statistics that could be used to challenge it on an as applied equal protection ground.
If your two servicemen are caught getting oral sex, one from a man and one from a woman, they both face equal criminal penalties. However, from the start, the discretion inherent in the system will most likely permit the man getting oral sex from a woman to avoid conviction. The police (MPs, Shore Patrol, etc.) are probably unlikely to report the heterosexual conduct to the prosecuting authorities, and the prosecutors are less likely to make any charges or charge heavily.
Further, if convicted of the heterosexual conduct, the only penalty is what is given at the court-martial (or non-judicial punishment), and it is likely to be light. If convicted of homosexual conduct, however, the penalty will probably be equally light as a result of the court-martial, but there is the added issue of discharge.
I believe that the Lawrence decision invalidates ALL sodomy laws (whether applicable to same sex or opposite sex couples), though this is not entirely clear. However, by overruling Bowers, and more important, recognizing a due process right to private, consentual sexual conduct, I think that invalidation of all sodomy laws, including Art. 125 of the UCMJ, must follow (Gates relied in part on Bowers to uphold the conviction for “private, nonadulterous, noncommercial, consensual, heterosexual fellatio”).
SuaSponte’s argument is that the U.S. Supreme Court, under Goldman gives extraordinary deference to the military, which may impose conditions on service members that would otherwise be unconstitutional by invoking military necessity, without further explanation. Although that is Goldman’s holding as to the question it faced, does a service member have a First Amendment right to wear unobtrusive religious regalia in violation of the uniform regulations, I don’t think that it is applicable too much beyond its facts. Specifically, I don’t think that Goldman would be controlling here.
There are two important difference that I see between the situation in Goldman and a challenge to the military sodomy law under Lawrence, the historic pervasiveness of military uniform regulation and the fact that private, consentual sodomy is a due process right, not a First Amendment right.
The Goldman majority briefly addressed the rather obvious facts that service members are governed by detailed uniform regulations (the Air Force’s 180 page uniform manual was mentioned) and that there is an extensive history and awarness of the requirement of uniform military dress. They also discussed that military service necessary impinges on certain First Amendment free expression/free exercise rights. Based on this, they concluded that the military’s right to impose uniform regulations superceded Capt. Goldman’s possible free exercise interest in wearing a yarmuke while in uniform.
The Goldman dissenters did not appear to challenge the overall right of the military to impose uniform requirements or to restrict service members First Amendment rights based on military requirements. However, they challenged the majority’s seeming unquestioning deference to the military in setting the uniform requirements above free exercise/free expression rights. In particular, because the regulations permitted certian personal variations in uniform (rings, jewelry, etc.), the minor deviation of wearing an unobtrusive yarmulke should have been permitted.
Goldman can be distinguished because, as the Lawrence majority held, the prohibition against homosexual sodomy is not as deep or long-standing as Bowers suggested it was. The military’s restrictions on private, consentual sexual conduct has with less history than uniform regulations, and certainly less general public awareness than the fact that service members serve in uniform (is that a ppppledge ppppin on your UNIFORM).
More significantly, Lawerence held private sexual conduct to be a due process right. Although the free expression and free exercise rights of service members have been historically curtailed, I’m not aware that the due process rights of service members have been likewise curtailed (absent exigencies of combat or operational situations). If someone has some citations as to where entry into military service restricts due process rights, I’d appreciate them.
If private, consentual sexual conduct is a due process right under Lawrence, I don’t see how the military can claim that it is necessary to be limited for military reasons.
Billdo, neither of your distinguishments are very distinguished.
Point the first - the history of criminalization of sodomy. “The military’s restrictions on private, consentual sexual conduct has less history than uniform regulations.” Do you have any evidence for that? To my knowledge, sodomy was a crime in the pre-Revolutionary Royal Navy. Fraternization has certainly been a long-standing crime.
While Lawrence held that homosexual-specific criminalization of sodomy is a new trend, criminalization of sodomy certainly isn’t. And the UCMJ criminalizes both.
Point the second - the relevance of the history of criminalization of sodomy to the military.
There is none. Lawrence looked to the trends in state law and to the European Union to find that criminalization of sodomy, heterosexual and homosexual, is in decline. So?
As the Supremes noted long before Goldman, the military is a separate society, so separated because the need for military discipline requires different rules. Therefore, legal trends in civil society would have no bearing on military law.
Point the third - restrictions on constitutional freedoms in the military. Where do you get the idea that the only constitutional right that can be infringed by military law is the First Amendment? That’s absurd on its face - ever hear of the draft?
Sua
Ok, question about Lawrence…to what extent does Lawrence establish homosexuals as a protected class, and would that have an impact? Was the “equal protection” argument accepted by the majority opinion, or did the majority (except O’Connor, who used Equal Protection), rely only on substantial due process. It seems to me that equal protection suggests that homosexuals are a proctected class, while an extended privacy right doesn’t.
And if gay people are a protected class, don’t laws touching the class require greater scrutiny? Is there some way the ban could survive under rational basis, but not strict scrutiny? And if the majority opinion doesn’t touch on equal protection, do you think it was to avoid protected class status?
The majority opinion in Lawrence, so far as I’ve been able to grasp it, did not depend on Equal Protection. An equal protection verdict would only have overturned those sodomy laws which banned same-sex intercourse. The actual ruling stated that a certain right to privacy within the home was built into the Constitution by their reading (others, on fairly decent grounds, disagree). Thus they overturned all state sodomy laws, and probably severely endangered other ones (adultery laws come to mind).
As to the bearing on the military, the simple fact is I doubt the ruling impacts the military at all. Servicemembers are not granted, and in many field conditions cannot be granted, right to privacy. Its one of the things you practically (if not legally atm) sign away upon enlisting. Hence, I think any case trying to use the Lawrence precedent has its work cut out.
The majority opinion in Lawrence, so far as I’ve been able to grasp it, did not depend on Equal Protection. An equal protection verdict would only have overturned those sodomy laws which banned same-sex intercourse. The actual ruling stated that a certain right to privacy within the home was built into the Constitution by their reading (others, on fairly decent grounds, disagree). Thus they overturned all state sodomy laws, and probably severely endangered other ones (adultery laws come to mind).
As to the bearing on the military, the simple fact is I doubt the ruling impacts the military at all. Servicemembers are not granted, and in many field conditions cannot be granted, right to privacy. Its one of the things you practically (if not legally atm) sign away upon enlisting. Hence, I think any case trying to use the Lawrence precedent has its work cut out.
Lawrence did not address the issue. Romer, OTOH, already has. Romer concerned the Colorado state constitution amendment prohibiting anti-discrimination laws protecting homosexuals.
Romer, recognized homosexuals as a class of persons. Romer did not find that homosexuals are a protected class, however, just a plain old class - laws that unequally impact homosexuals are not subject to a heightened level of scrutiny, just the normal “rational relation” test (that is, rational relation to a legitimate governmental interest - a very low standard).
But the finding that homosexuals are a class was important, because laws that are enacted simply because the majority does not like a particular class of persons are not rationally related to a legitimate governmental interest.
Sua