Controlling Conduct: The Emerging Protection of Sodomy in the Military
Is same-sex sodomy protected conduct in the military today? Following Lawrence v. Texas, the Supreme Court’s landmark decision that held that intimate sexual conduct is protected from unwarranted government intrusion by a liberty interest under substantive due process, some believed that the answer to that question was yes. Amidst the Supreme Court’s greater recognition of personal liberty and privacy, Lawrence was a “watershed” moment in a growing movement towards the protection of sexual intimacy as a “realm of personal liberty which the government maynot enter.” Nearly three years after Lawrence, however, Article 125 of the Uniform Code of Military Justice (UCMJ), the military’s criminal proscription of sodomy, remains on the books and continues to be enforced against military service members. Similarly, the military continues to apply its “Don’t Ask, Don’t Tell” policy (DADT). Under this personnel policy, the military may discharge service members who engage in homosexual acts. Despite challenges in the courts, public opinion, and Congress, both Article 125 and DADT remain the cornerstones for military policy regarding same-sex conduct.
Since Lawrence, however, Article 125 has been applied only against some military service members, and only in some circumstances. The Court of Appeals for the Armed Forces (CAAF), the highest court in the military system, has incorporated Lawrence into the military context using an as-applied framework that narrowed the circumstances in which Article 125 may be constitutionally applied. Under this framework, the enforcement of Article 125 is unconstitutional only if the provision is applied to conduct that is within the Lawrence liberty interest and if there are no factors relevant solely to the military context that limit the “nature and reach of the Lawrence liberty interest.” Lower military courts have applied this framework to find that Article 125 is unconstitutional when applied to two adults of the opposite-sex engaging in private and consensual sodomy. In these cases, the courts have found no legitimate military interest sufficient to override Lawrence and justify Article 125. In light of the military’s additional interests provided in DADT, however, it remains an open question whether Article 125 may be constitutionally applied to adults engaging in private, consensual sodomy with members of the same sex.
I argue that Article 125 may be constitutionally applied to samesex sodomy only to the extent that it may be constitutionally applied to opposite-sex sodomy, and then only so far as Lawrence allows. Part II introduces the liberty interest identified in Lawrence. Part III shows that Article 125 is not supported by a sufficient interest arising from itself to justify the continued prosecution of same-sex sodomy. Part IV demonstrates that military interests used to sustain Article 125 only arise from punishable offenses separate from sodomy and therefore may not be used to support the application of Article 125 to simple same-sex sodomy. Part V then rejects DADT as a sufficient interest to sustain the application of Article 125 to simple same-sex sodomy where no other military interests are implicated. Part VI finds that even if DADT is a sufficient interest, the classification created by Article 125’s disparate punishment of same-sex sodomy and opposite sex sodomy is not rationally related to any legitimate military interest. Part VII observes that regardless of whether same-sex sodomy receives explicit protection from military courts, same-sex sodomy has been effectively afforded the same protection as opposite-sex sodomy. Part VIII concludes that same-sex sodomy and opposite-sex sodomy constitute, by whatever mechanism, equally protected conduct under the liberty interest identified in Lawrence.