Don’t Ask, Don’t Tell, Do Litigate

Kenji , I, too, think the Supreme Court will likely side with the military in any challenge to “don’t ask, don’t tell” that percolates up through the courts. The thumb of judicial deference to the military is heavy indeed. Despite what we’ve seen in the recent terrorism cases ( Hamdi , Rasul , and Hamdan ), this deference remains strongest on such issues as military manpower, which flow from a specific grant of power to Congress to “raise and support armies.”

However, I do think we’re seeing a post- Lawrence evolution within military courts on this issue. Over the past few years, a number of military courts have heard criminal cases involving violations of Article 125, the military statute forbidding sodomy. These cases have involved both homosexual and heterosexual conduct, because the statute applies to both. In United States v. Marcum , the Court of Appeals for the Armed Forces (CAAF) affirmed the conviction of an airman for consensual sodomy with a subordinate. In its decision, the court “assume[d] without deciding” that Marcum’s sexual acts were legally protected by Lawrence . But rather than cite Bowers v. Hardwick and the illegality of homosexuality per se, the court looked instead to the inappropriateness (in a military context, at least) of sex between subordinates and superiors and the effect of that consensual sex on “good order and discipline.”

Similarly, in United States v. Stirewalt , decided in 2004, the CAAF “assume[d] without deciding that [the] conduct [fell] within the liberty interest identified by the Supreme Court” because the conduct occurred in an “off-base apartment” and “in private.” And in United States v. Bullock , the Army Court of Criminal Appeals (which sits below CAAF) overturned a male soldier’s guilty plea under Article 125 for consensual oral sodomy with a female soldier. According to a Congressional Research Service report , these cases may “recognize a right to engage in consensual adult sodomy, under principles that may be equally applicable to Article 125 prosecutions targeting homosexual activity.”

You’re probably wondering why the military bothers to bring any of these sodomy prosecutions at all. Given that there’s a war on, you’d think the military has better things to do. After Lawrence , sodomy prosecutions in the military now require sex plus something else—what the Marcum court called “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” These prosecutions all involve some aggravating factor above and beyond the sex itself, like fraternization (sex between superiors and subordinates, or peers in some settings), force (actual or constructive), or some other prejudicial effect on military order and discipline. In the post- Lawrence world, I don’t think we’re likely to see many prosecutions for sodomy per se—only for cases where such aggravating facts are present.

Which is as it should be, I think. The military has a unique need to maintain unit cohesion and morale, one which trumps certain fundamental rights. But, this imperative transcends any line between gay and straight soldiers; heterosexual conduct damages unit cohesion as easily (and much more frequently) than homosexual conduct. Military courts are starting to apply these rules more evenly. I don’t know whether this will affect “don’t ask, don’t tell” in the long run, but it will certainly moderate its effect within the ranks.