The Pentagon on
Thursday recommended repeal of the military's ban on
consensual sodomy. It has now been referred to the House
Armed Services Committee's personnel subcommittee, where it
is being reviewed.
"Service members should not be expected to
automatically check their constitutional rights at the
barracks door," said Sharra E. Greer of the Servicemembers
Legal Defense Network, an advocacy group for gay and lesbian
service personnel. "Every service member deserves laws that
are neither arbitrary nor vindictive. Congress should
approve the committee's recommendation. Consensual sodomy
prosecutions are both unwarranted and unconstitutional."
Under military law, consensual sodomy by
heterosexuals as well as same-sex couples can be punished by
up to a five-year prison sentence.
The constitutionality of the statute was called
into question after the U.S. Supreme Court's historic
Lawrence v. Texas decision, abolishing similar
state sodomy laws. In 2001 a panel called for repeal of the
statute. The Cox Commission called military sodomy
prosecutions "arbitrary, even vindictive." That commission
also recommended replacing the existing statute with one
more closely resembling civilian law.
SLDN cautioned service members, however, that the
recommendations are not yet law and must be approved by Congress.
"It remains to be seen if the recommendation by the
Pentagon will be implemented and, if so, whether or not
same-sex consensual sodomy prosecutions will cease," Greer
said. "Pentagon leaders must not suggest repeal of the
consensual sodomy prohibition in Article 125 only to
continue violating Lawrence under a different
statute. To do so would be a clear violation of service
members' constitutional guarantee of privacy."