Captain Kenneth R. Bryant, JAGC, USN

Chairman, Joint Services Committee on Military Justice

Office of the Judge Advocate General

Criminal Law Division (Code 20)

Washington Navy Yard, DC



Dear Captain Bryant,

We write to provide the Committee our analysis of the impact of the recent United States Supreme Court ruling in Lawrence v. Texas, 123 S. Ct. 2472 (2003), on the constitutionality of the military's sodomy law, 10 USC § 925(a), Article 125 of the Uniform Code of Military Justice (Article 125). As explained in greater detail below, Article 125 must be revised as in light of Lawrence.

The basis upon which Article 125 had previously been upheld, Bowers v. Hardwick, 478 U.S. 186 (1986), was overruled explicitly and unquestionably by Lawrence. In 1992, the Court of Appeals for the Armed Forces considered whether a conviction under Article 125 of the UCMJ for private, consensual sodomy was constitutional in the companion cases of United States v. Fagg, 34 M.J. 179 (1992), and United States v. Henderson, 34 M.J. 174 (1992). The court's only justification for upholding the convictions was found in the Supreme Court's decision in Bowers v. Hardwick. Last term, the United States Supreme Court expressly overturned the ruling in Bowers v. Hardwick in Lawrence v. Texas, with the majority finding that Bowers was wrongly decided then, and wrong today. In Lawrence, the Supreme Court held that the Constitution protects the fundamental right of consenting adults to make decisions about their private, consensual sexual activity without interference from the government, and struck a Texas law criminalizing private, adult, consensual sodomy.

In light of the Supreme Court's ruling in Lawrence, Article 125 of the UCMJ is unconstitutional, because it provides for criminal penalties for fully constitutionally protected conduct, that is, private, non-commercial sexual conduct between consenting adults. There is nothing inherent in the military environment that would justify compromising the fundamental liberty interest to engage in private, adult, consensual sexual conduct. Specifically, there is no military interest in how consenting adults privately express their sexual intimacy. The military's interest in prohibiting certain relationships that may damage unit cohesion and discipline, such as fraternization, is not served by Article 125. Indeed, the lack of consistent enforcement of Article 125 serves to undermine military interests. Article 125 is for many reasons, bad policy.

In the attached comments we begin with a review of the history and scope of Article 125. We will then analyze Article 125 in light of the Supreme Court's ruling in Lawrence. We will then discuss Article 125's detrimental impact on military interests. Finally, we conclude that convictions for consensual, adult, private conduct under Article 125 are unconstitutional and Article 125 must be revised. In particular, we agree with the Commission on the 50th Anniversary of the Uniform Code of Military Justice's (known as the ""Cox Commission"") recommendation that the Model Penal Code's Criminal Sexual Conduct provision serve as starting point for the revision of Article 125.

We appreciate the opportunity to present our comments on this very important issue. If we may be of further assistance to the Committee in this matter, please do not hesitate to contact us.



Respectfully,

American Civil Liberties Union

American Civil Liberties Union of the National Capital Area

Gay and Lesbian Advocates and Defenders

Human Rights Campaign

Lambda Legal Defense and Education Fund

National Center for Lesbian Rights

People for the American Way

Servicemembers Legal Defense Network

Colonel Robert V. Barnes Jr., USA (Ret.)

Colonel Margarethe Cammermeyer, USA (Ret.)

Colonel Paul W. Dodd, Chaplain, LPC, USA (Ret.)

Brigadier General Evelyn P. Foote, USA (Ret.)

Brigadier General Keith H. Kerr, CSMR (Ret)

Colonel Eugene ""Andy"" Leonard, USA (Ret.)

Master Chief Petty Officer Vincent W. Patton III, USCG (Ret.)

Captain Robert Michael Rankin, M.D., USNR (Ret.)

Brigadier General Virgil A. Richard, USA (Ret.)

Rear Admiral Alan M. Steinman, MD, MPH (Ret.)

I. Introduction: HISTORY AND SCOPE OF ARTICLE 125

Article 125 traces its history to the wholesale adoption of the British Articles of War by the Continental Congress in 1775.[i] The British Articles of War had in turn incorporated, by use and custom, British common law prohibitions against murder, suicide, manslaughter, burglary, arson, robbery, larceny, rape, sodomy and mayhem.[ii] Congress first enumerated a number of common-law offenses, including sodomy, as military crimes in 1920 when it amended the Articles of War.[iii] Congress enacted the UCMJ in 1950, and in doing so continued to criminalize the British common-law felonies listed in the Articles of War, but explicitly defined them based on the civilian laws of Maryland.[iv] As a result, the 1920 one-word prohibition against ""sodomy"" was changed to a criminal prohibition against ""engag[ing] in unnatural carnal copulation with another person of the same or opposite sex.""[v]

There is no separate legislative history expressing a Congressional purpose in prohibiting consensual sodomy through Article 125, other than the general purpose to prohibit the kinds of criminal conduct generally proscribed in civil society. As the Court of Appeals for the Armed Forces has said, ""[t]he background material on the adoption of the UCMJ indicates Congress made no findings as to the possible harmful consequences of privately performed sexual acts upon the military community.""[vi]

The scope of Article 125 is very broad. Article 125 provides:

Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.[vii]

""Unnatural carnal copulation"" is defined as the ""tak[ing] into?the mouth or anus the sexual organ of another person . . . or to place that person's sexual organ in the mouth or anus of another person.""[viii] Accordingly, Article 125 prohibits all oral and anal sex-both heterosexual and homosexual. It even covers such sexual acts when they occur between husband and wife in the privacy of their own bedroom. The Court of Appeals for the Armed Forces has acknowledged the breadth of Article 125's scope:

By its terms, Article 125 prohibits every kind of unnatural carnal intercourse, whether accomplished by force of fraud, or with consent. Similarly, the article does not distinguish between an act committed in the privacy of one's home, with no person present other than the sexual partner, and the same act committed in a public place in front of a group of strangers, who fully apprehend the nature of the act.[ix]

A conviction under Article 125 requires proof of two elements: (1) unnatural carnal copulation and (2) penetration. No further findings are required.

The penalties under Article 125 are severe. Consensual sodomy is punishable by ""[d]ishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.""[x] The criminal penalties for sodomy are in fact more severe than the punishment for negligent homicide, extortion, assault upon a child under 16 years, and aggravated assault other than with a loaded firearm.[xi]

Notwithstanding the severe penalties associated with violation of Article 125, a majority of members of the military engage in the conduct encompassed under the law. As one study of military sexual practices noted, ""[i]t seems reasonable to assume, based on general population estimates, that a majority of both married and unmarried military personnel engage in oral sexual activity, at least occasionally.""[xii]

II. Lawrence v. Texas Requires Revision of Article 125

A. The Sole Justification For Retaining Article 125's Prohibition On Consensual, Private Adult Conduct Has Been Rejected.

The basis upon which Article 125 had previously been upheld, Bowers v. Hardwick, was expressly overturned in Lawrence. In Lawrence, the Supreme Court found the Texas sodomy prohibition at issue unconstitutional because the Due Process Clause of the Fourteenth Amendment protects a fundamental right of adults to make decisions regarding private, consensual sexual conduct, including sodomy.[xiii]

In a pair of cases rejecting pre-Lawrence constitutional challenges to Article 125's prohibition on private, consensual sodomy, the Court of Appeals for the Armed Forces grounded its decisions entirely upon the now-overruled Bowers decision. In United States v. Henderson, 34 M.J. 174 (1992), the court noted that a line of Supreme Court decisions had recognized a zone of private, intimate conduct that is immune from interference by the government, but noted Bowers as a ""significant reversal of this trend.""[xiv] In United States v. Fagg, 34 M.J. 179 (1992), the Court of Appeals for the Armed Forces -citing only Bowers-stated that ""we detect no indication from the Supreme Court"" which would permit overturning Article 125.[xv] That ""indication"" has come. In Lawrence, the Supreme Court said, ""Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.""[xvi]

Lawrence recognized a ""due process right to demand respect for conduct protected by the substantive guarantee of liberty,""[xvii] part of ""a realm of personal liberty which the government may not enter.""[xviii] The Court found that sodomy is conduct that persons may ""choose without being punished as criminals,""[xix] and that the government ""cannot demean . . . by making . . . a crime.""[xx] Lawrence wiped away the sole justification the Court of Appeals for the Armed Forces cited in upholding Article 125 a decade ago.

B. Article 125 Is Not Narrowly Tailored To Serve A Governmental Interest.

There is no doubt that Article 125 imposes a significant burden on a fundamental liberty interest: Article 125 criminalizes private, consensual sodomy, authorizing incarceration of those convicted of engaging in such acts for up to five years. Such private, consensual sexual conduct between adults was found to be constitutionally protected by the Supreme Court in Lawrence. Therefore, to survive constitutional scrutiny, Article 125 must be tailored to a compelling governmental interest.

The Supreme Court has said that when a law burdens a fundamental right, a reviewing court must determine whether the particular infringement is ""precisely tailored"" to a ""compelling governmental interest.""[xxi] In order to withstand constitutional review, Article 125 must satisfy this demanding test.

Article 125 is not narrowly tailored to any government interest. Article 125 is both overbroad and underinclusive. Article 125 criminalizes sodomy regardless of the defendant's partner, treating adulterers and spouses as equivalents. It criminalizes sodomy regardless of where it occurs, treating public parks and locked bedrooms in the same manner. It criminalizes sodomy regardless of the partner's consent, treating rape and wedding-night consummations in the same way. A simple example illustrates the lack of any connection between sodomy and the interests the United States claims Article 125 serves. Suppose two Privates are on a weekend pass, check into the local motel, and have consensual traditional intercourse three times. The government would not argue that such conduct inherently threatens military interests. The next weekend the same two Privates check into the same motel and have intercourse again, this time preceded by an episode of oral sex. The premise that the second weekend would inherently threaten good order and discipline when the first would not is completely illogical. Article 125 is therefore poorly tailored to the interest or morale, good order and discipline, and unit cohesion.

Just as ""an order which is broadly restrictive of a private right is arbitrary and illegal in the absence of circumstances demonstrating a connection to a military need,""[xxii] when a criminal statute burdens a fundamental liberty interest, both overbroad and underinclusive prohibitions are equally fatal. On the one hand, ""[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.""[xxiii] As a result, ""[a] criminal statute or regulation is overbroad if, in addition to prohibiting conduct which is properly subject to governmental control, it also proscribes activities which are constitutionally protected or otherwise innocent.""[xxiv] On the other hand, ""[a] State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct than necessary to achieve its goal.""[xxv] Article 125 suffers from both of these defects.

C. There Is No Compelling, Or Even Legitimate, Government Interest Served By Article 125's Prohibition On Consensual Conduct.

The legislative history of Article 125 shows clearly that the UCMJ's sodomy provision was incorporated into the Code not as a uniquely military crime, but as a ""civil-type"" crime. The UCMJ includes two types of crimes: (1) common-law offenses, sometimes called ""civil type"" offenses, and (2) uniquely military offenses.[xxvi] The prohibitions against ""common law crimes"" were enacted to subject service members to basic norms of civil society; in the military and combat offenses, ""[t]he Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties.""[xxvii]

In other words, the legislative intent behind criminalizing sodomy under the UCMJ is the same as the legislative intent behind criminalizing sodomy in the civilian context, and the provision was included to create parity with the criminal codes applicable to the general civilian population. When Congress adopted Article 125, it ""made no findings as to the possible harmful consequences of privately performed sexual acts upon the military community.""[xxviii] No other government interest is apparent in the legislative history of Article 125. The legislative history demonstrates that Congress' purpose in passing Article 125 was to make the offense in the UCMJ mirror the law of Maryland in 1950. It is beyond question that, after Lawrence, the 1950 sodomy prohibition from Maryland would no longer pass constitutional scrutiny were it still in effect.[xxix] Given the lack of legitimate government interests distinct from those supporting the law in 1950, neither does Article 125.

Nonetheless, several government interests are offered in justification of Article 125 by the United States in a case currently pending before the Court of Appeals for the Armed Forces, United States v. Marcum, No. 02-0944/AF (C.A.A.F. filed Sep. 23, 2002). They include the ""need to prevent negative impact to morale and discipline,""[xxx] ""unit cohesion, and the need to avoid bringing discredit on the military,""[xxxi] and ""national security.""[xxxii] These interests put forward by the United States in Marcum are post hoc rationalizations distinct from Congress' actual motivation in passing Article 125, and therefore do not justify Article 125 in light of Lawrence. These interests are also not served by Article 125.

Morale, good order and discipline, national security and unit cohesion are indeed important government interests in the military context, however, there is no evidence that these interests underlie or are in anyway served by Article 125.[xxxiii] There is no connection between these asserted government interests and the actual scope of Article 125 itself. Members of the Armed Forces are subjected to greater restrictions upon their liberty than would be constitutionally permissible in the civilian context, however, infringement upon the constitutional rights of service members may not be arbitrary. There must be a government interest justifying laws or regulations which compromise service members' constitutional rights, and there must be a genuine relationship between the compromise of rights and the government interest. Article 125 bears no genuine connection to the government interests asserted in its justification.

Congress is not ""free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause.""[xxxiv] ""The protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces.""[xxxv] Although the Supreme Court has recognized the need for ""deference to legislative and executive judgments in the area of military affairs,""[xxxvi] ""deference"" does not mean ""abdication.""[xxxvii] Even when deferring to military judgments, the Supreme Court applies heightened scrutiny to infringements of fundamental rights. Thus, courts-including military courts-can and do apply heightened scrutiny to military laws passed by Congress.[xxxviii]

Just as military deference does not insulate Acts of Congress from judicial scrutiny, it also does not serve as a substitute for an explanation of how Article 125's specific criminal prohibition for private, consensual sodomy adequately serves any legitimate military interest. In every case in which the Supreme Court has deferred to decisions by Congress governing the military (or to internal rules and orders within the military), it has done so because the United States established the existence of an interest justifying an infringement of a constitutional right related to the ""particular restriction.""[xxxix]

The government in Marcum, unable to draw any connection between sodomy and any asserted governmental interest or find any support in the legislative history for Article 125, attempts to co-opt the findings Congress made forty-three years later when it passed ""Don't Ask, Don't Tell,"" the current ""[p]olicy concerning homosexuality in the armed forces,"" 10 U.S.C. § 654.[xl] Reliance on ""Don't Ask, Don't Tell"" is misplaced for several reasons. First, as the Court of Appeals for the Armed Forces has explicitly stated in interpreting Article 125, ""[t]he question is: in 1950 when the Uniform Code was enacted"" what did Congress intend?[xli] Findings made in another context decades later are not relevant to that inquiry.

Second, ""Don't Ask, Don't Tell"" authorizes only separation from the Armed Forces-not any criminal penalties.[xlii] Nothing about the ""Don't Ask, Don't Tell"" findings suggests that Congress intended them to support anything other than administrative procedures. Indeed, the Senate Report for ""Don't Ask Don't Tell"" disclaimed that the findings were meant to serve as anything other than ""the basis for the policy"" on discharges implemented by the statute.[xliii] Third, Article 125 and ""Don't Ask, Don't Tell"" have different scopes. The word ""sodomy"" appears nowhere in the ""Don't Ask, Don't Tell"" statute, and heterosexual sodomy is completely unaddressed by the ""Don't Ask, Don't Tell"" policy.[xliv] Instead, homosexual sodomy is a small part of the broadly defined term-""homosexual act""-that also includes conduct totally unrelated to Article 125, such as holding hands.[xlv] ""Homosexual acts,"" as well as statements of homosexual or bisexual orientation, may lead to discharge under the ""Don't Ask, Don't Tell"" policy regardless of whether they qualify as ""unnatural carnal copulation"" under Article 125.[xlvi] Conversely, most ""copulation"" prohibited by Article 125-including heterosexual sodomy-does not warrant discharge under ""Don't Ask, Don't Tell.""[xlvii]

In short, there is no government interest served by Article 125. Lawrence begins and ends the inquiry as to its constitutionality. Just as the Maryland law upon which it is based is unconstitutional, so is Article 125.

III. Article 125 Harms Military Interests

Criminalizing certain kinds of common sexual conduct and creating an environment in which prosecution is selective and in many cases, perceived to be vindictive, Article 125 actually acts as a detriment to morale, good order, discipline, and unit cohesion.[xlviii] The sexual acts proscribed by Article 125 are normal, healthy sexual activities regularly engaged in by most service members. According to the RAND Institute, one of the most preeminent military research institutes, the vast majority of American men and women engage in oral sex.[xlix] A significant number also engage in anal sex.[l] According to RAND, it is reasonable to assume that the majority of military personnel, both married and unmarried, engage in sodomy.[li]

Military laws that are not consistent with military practice undermine good order, discipline and morale. There is a wide gulf between what Article 125 prohibits and what service members actually do. The tension between law and practice delegitimizes the law.

A. Article 125 Undermines Good Order, Discipline and Morale By Forcing Service Members To Lie.

Article 125 also undermines good order, discipline and morale by forcing service members to hide, lie, evade and dissemble about their personal relationships to hide private sexual conduct that is no longer even punishable in the civilian context. [lii] Service members know that the U.S. Supreme Court struck down sodomy laws across the country in June of 2003, yet Article 125 still hovers over them. Service honor codes stress the importance of honor, integrity and candor. [liii] It makes a mockery of instilling honesty and integrity when most service members know that they and others frequently commit in their most intimate personal relationships what the UCMJ treatss as a criminal offense subject to severe punishment. Service members receive the message that honesty and integrity are selective virtues - that lying is necessary to service of one's country, and hypocrisy is sometimes acceptable. Criminalizing consensu