- The Washington Times - Tuesday, August 24, 2004

The U.S. military’s ban on sodomy is constitutional when it involves service members who hold different military ranks in the same chain of command, a military appeals court said this week.

Monday’s ruling by the U.S. Court of Appeals for the Armed Forces shows that the sexual-misconduct case against former Air Force Sgt. Eric P. Marcum “was properly decided,” said Elaine Donnelly, president of the Center for Military Readiness in Livonia, Mich.

However, the ruling was narrow and did not answer new questions about how to treat consensual sodomy between service members of equal rank now that the U.S. Supreme Court has ruled that such acts between consenting adults are constitutionally protected.

“In this [Marcum] case, I’m glad the court ruled as they did, but it doesn’t mean the issue [of homosexuality in the military] is settled,” Mrs. Donnelly said.

Homosexual rights groups pledged to bring more cases that challenge Article 125 in the Uniform Code of Military Justice, which says that any kind of “unnatural carnal copulation,” such as sodomy, is punishable by a court-martial.

The Servicemembers Legal Defense Network, which defended Sgt. Marcum in his appeal, said it “will now consider all options regarding further challenges” to the ban on homosexuals in the military.

“This discriminatory policy must be struck down,” said Cheryl Jacques, president of the Human Rights Campaign, referring to Article 125.

The military appeals court’s unanimous decision upheld the 2000 conviction of Sgt. Marcum for dereliction of duty and sexual misconduct, including sodomy, with men under his supervision at Offutt Air Force Base in Omaha, Neb.

Sgt. Marcum, a linguist who trained newly assigned airmen, had been sentenced to several years in prison and is out on parole.

The airman originally filed an appeal in 2002, but quickly updated it after the U.S. Supreme Court issued its 2003 Lawrence v. Texas decision, which found that private sex acts between consenting adults were constitutionally protected and struck down state anti-sodomy laws.

Sgt. Marcum sought to apply the Lawrence ruling to his case, which he said involved consensual sexual activity conducted in private, off-post quarters.

The military appeals court upheld the conviction, noting that several of the airmen he had been with said they felt forced into it because Sgt. Marcum was their superior officer.

The Lawrence decision cannot be applied to cases that involve forcible sodomy, the military appeals court said.

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