In a decision that gay rights activists are hailing as an important legal victory, a military appeals court on Tuesday overturned the conviction of a soldier for having consensual sodomy with a woman while in the Army. Some are arguing that the ruling could undercut the military's antigay "don't ask, don't tell" policy.
According to a report in The Washington Post, the previously unreported decision, handed down last week by the U.S. Army Court of Criminal Appeals, builds on a landmark Supreme Court ruling last year that struck down a Texas sodomy statute. It is believed to be the first time that a military court has upheld the right of consenting adults to engage in oral sex in private. "It undercuts the premise of 'don't ask, don't tell,'" said Washington lawyer David Sheldon, who represents several soldiers fighting their dismissal from the armed forces because of gay sex.
According to the Post, last week's court decision involved a male Army specialist who was convicted of engaging in oral sex with a female civilian in a military barracks. Kenneth Bullock was charged under Article 125 of the Uniform Code of Military Justice, which prohibits "unnatural carnal copulation with another person of the same or opposite sex or with an animal." Although the case involved a man and a woman, legal experts said the principles invoked by the three military judges were equally applicable to gay sex.
The constitutionality of Article 125 has come under assault as a result of last year's Supreme Court decision in Lawrence v. Texas, which upheld the notion of a "zone of privacy" for sexual relationships involving consenting adults. This decision means that "even in the military, you have a zone of privacy and can engage in sexual acts in private that used to be considered criminal,"
Patricia M. Logue, senior counsel for Lambda Legal, which is seeking to overturn antigay military statutes, told the Post.
Some legal experts have said the Pentagon could appeal the decision to the U.S. Court of Appeals for the Armed Forces or to the Supreme Court on the grounds that the military is a special institution with its own disciplinary procedures.
Gay rights activists have challenged the Pentagon's gay ban and have enjoyed some preliminary
successes. On Monday a dozen former armed forces members discharged for being gay or lesbian filed suit in federal court in Boston, challenging the constitutionality of "don't ask, don't tell." They argued that the military sodomy statute conflicted with the Lawrence v. Texas decision. Last week, the U.S. court of appeals for the third circuit in Philadelphia ruled that law schools have a right to bar military recruiters from their campuses as a way of protesting the Pentagon policy on gays. The three-judge panel struck down a congressional amendment that permitted the government to
withhold federal money from educational institutions that refuse to cooperate with military recruiters.