The Military "End Run" Around Lawrence v. Texas

In 2003, the Supreme Court declared state laws against consensual sodomy by same-sex couples to be unconstitutional, in Lawrence v. Texas.  Soon thereafter, a military member being prosecuted under the Uniform Code of Military Justice, Sec. 125, the military sodomy law, raised Lawrence as a defense.  The Court of Military Appeals decided that Lawrence had to be reconciled with military law, and came up with an analysis under which a military tribunal should first figure out whether the conduct in question met all the requirements of Lawrence (consensual, private, adult), and then ask whether nonetheless there were military order and morale concerns in the case that would justify the prosecution.  Under this standard, subsequent court martial and military appellate courts have drawn a line under which criminal prosecution for sodomy would not take place if the military member was engaging in discreet consensual activity with a civilian off-base.  (For example, they wouldn't prosecute Witt for her lesbian relationship with a civilian that was carried on hundreds of miles from her base when she was off duty).  The military appeals case is U.S. v. Marcum.

Of course, that is about criminal prosecution, and doesn't affect the "don't ask, don't tell" policy, as far as military officials are concerned.  It's one thing to say you can be prosecuted for every case of sodomy, but another to say that you can't remain in the military if you are found to have engaged in sodomy and fit the law's definition of a homosexual (somebody with a propensity to engage in homosexual conduct).

Now there is a new court martial appeals decision that shows them taking an end-run around Lawrence and Marcum, U.S. v. Harvey, 2009 WL 1508376 (Air Force Court of Criminal Appeals, April 9, 2009).  For some reason, they've decided NOT to publish this one in the Military Justice Reporter, even though it is staking out new ground.  So, what if you have an officer who engages in "homosexual conduct" with civilians while off duty and off the base, and you know his conduct can't be prosecuted under Sec. 125 because of Marcum.  Well, then, charge him with some other offense, like the famous joker in the deck, Sec. 133 - "conducting unbecoming and officer and a gentleman."  You guessed it.  It is "obvious", it needs no justification, to conclude that a gay officer posted to Turkey is engaged in "conduct unbecoming an officer and a gentleman" when he has sex with Turkish civilians, especially if rumors circulate about his sexual activity.  (The story is a bit complicated.  Harvey had a sexual relationship going with a Turkish man, who became concerned that rumors were circulating in his village that he was gay.  He suspected Harvey of telling people.  So he cut off his relationship with Harvey and reported Harvey's conduct to Harvey's supervisor.  When the rumors persisted, this man, suspecting Harvey was having sex with the man's cousin, surreptitiously filmed him, and turned the videotape over to military authorities,  Then Harvey was prosecuted under 133.)

Quoth the court: "We conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ.  Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ.  This is such a case.  In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish nation, evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer.  In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional."

The appeals court also found that the trial judge did not err in failing to instruct the military jury about the Marcum tests for determining whether conduct was protected under Lawrence.  The panel decided that this determination is a question of law, not of fact, and thus the determination whether Marcum/Lawrence sheltered the conduct would be decided by the judge, not the jury.  Along the course of its analysis, the court did rejected the prosecutor's contention that Marcum was irrelevant to Sec. 133 cases, but the court insisted that Sec. 133 could be applied to otherwise constitutionally sheltered conduct under the circumstances of this case.

Comments

[Kay]

What will happen to this case? Will it get appealed and will it get to the Supreme Court?
Kay

[Art Leonard]

That's entirely up to Mr. Harvey. If he wants to fight it, he can appeal to a higher military appeals court, and if he doesn't get vindication there, he can try to take it up to the U.S. Court of Appeals and eventually to the Supreme Court. But it would be exceedingly rare for a court martial verdict to be accepted for review by the Supreme Court.