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Washington�A key test of the Supreme Court’s landmark gay rights ruling of last June is under way in a federal appeals court, in a challenge to the military’s criminal sodomy statute. Although a decision in the case will have no direct impact on the government’s so-called “don’t ask, don’t tell” policy, it may offer clues to the constitutional sturdiness of that policy in light of the high court’s ruling in Lawrence v. Texas, 123 S. Ct. 2472. “My guess is this is the front edge of changes with respect to homosexuals in the military,” said military law scholar Charles Shanor of the Emory University School of Law. In a courtroom packed with military and civilian attendees, the five-member U.S. Court of Appeals for the Armed Forces-the military’s top court-heard arguments on Oct. 7. Former Technical Sgt. Eric P. Marcum, a Farsi-speaking linguist in the Air Force, is appealing his conviction by court-martial on sex-related charges, including consensual sodomy with a subordinate. U.S. v. Marcum, No. 02-0944/AF. Marcum’s appeal had already been docketed and fully briefed in August when his counsel asked the appeals court to consider a new issue: whether Marcum’s sodomy conviction must be reversed in light of Lawrence. That issue dominated an hour-long argument pitting the government’s attorney, Air Force Col. LeEllen Coacher, against Marcum’s civilian counsel, veteran military defense attorney Frank Spinner of Colorado Springs, Colo., and his amici supporters, represented by Stuart Delery of Washington’s Wilmer, Cutler & Pickering. The target of the challenge is Article 125 of the Uniform Code of Military Justice. It says that a person who engages in “unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.” No exceptions The section prohibits all oral and anal sex, making no exceptions for married couples, for example. Civil rights litigators said it was an obvious post- Lawrence target. In that decision, the Supreme Court struck down a Texas sodomy statute that criminalized intimate sexual conduct between consenting adults of the same sex. The justices held that adults have a constitutionally protected liberty interest in making decisions about their private, consensual sexual activity. The court reversed Bowers v. Hardwick, 478 U.S. 186 (1986), which had held the opposite. The armed forces appeals court last examined the constitutionality of Article 125 in a pair of 1992 cases. Citing the 1986 Bowers decision, it said the Supreme Court hadn’t indicated that it had changed its mind. In last week’s argument, Marcum’s lawyer, Spinner, told the court, “ Lawrence is now controlling authority. In Lawrence, the court said the state of Texas had no legitimate interest and the government hasn’t articulated any legitimate interest here.” The court’s civilian judges had a number of concerns: Did Lawrence announce a fundamental right that would require applying strict scrutiny to Article 125 or the less stringent test of “rational basis” scrutiny? What effect might striking down Article 125 have on the military’s “don’t ask, don’t tell” statute on homosexuality? Do military interests such as discipline, unit cohesion and morale trump the liberty interest articulated in Lawrence? Delery, counsel to the American Civil Liberties Union, the Lambda Legal Defense and Education Fund and the Servicemembers Legal Defense Network, said Lawrence articulated a fundamental liberty right in making private, consensual sexual decisions. Article 125, he said, fails the Lawrence analysis because it is based on the same “moral disapproval” that underlay the Texas statute, bears no real connection to the government’s concerns and is overbroad and underinclusive. Article 125, he said, actually undermines discipline and morale by criminalizing widely practiced sexual acts. Holding it unconstitutional, he said, wouldn’t address the validity of the “don’t ask, don’t tell” policy. The policy is not a criminal statute, but an administrative one that results in separation from the service, not jail time, he noted. “Article 125 is the easy case,” he told the judges. Judge Andrew S. Effron noted there is no general prohibition on dating, handholding or sexual intercourse between members of the same unit, even though they can lead to sexual tension within a unit. He asked the government’s counsel, “What’s the rational basis for allowing sexual intercourse between members of the same unit, but prohibiting off-post, heterosexual sodomy with a civilian?” Coacher said heterosexual sodomy with a civilian “brings discredit on the service.” Effron asked, “Is it just sodomy that makes it bad?” Coacher said it’s “the connection between good order and discipline.” Article 125, she argued, passes constitutional muster under strict scrutiny or rational basis analysis. The military’s compelling interests, she said, are “the needs of good order, esprit de corps, discipline and the ability to maintain a good fighting force.” Courts, she added, have always given considerable deference to Congress’ military judgments. The military’s primary argument, Emory’s Shanor explained, is “These folks are living in very tight quarters and morale is critical. If there is someone engaging in sodomy, even if it happens outside the barracks, others in the barracks are going to be uncomfortable and less likely to perform as a cohesive military unit. It adds a factor to the military performance equation that commanders do not want to have to deal with.” Moral disapproval But the military concerns seem to be triggered by moral disapproval, said David Cruz of the University of Southern California Law School. “This broad ban does not limit itself to sodomy on military premises, nor to acts of sodomy between superiors and inferiors in the chain of command,” he said. “It is not limited to any context in which one might think there were secondary effects separate from moral disapproval. Lawrence tells us that moral disapproval, standing alone, is an inadequate basis for such a law.” In 2001, a commission recommended the replacement of Article 125 with a law governing sexual abuse. The commission’s chairman was Senior Judge Walter T. Cox III, who had upheld the sodomy law in 1992. Coyle’s e-mail address is [email protected].

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