- The Washington Times - Thursday, April 21, 2005

The Pentagon is asking Congress to change the military’s anti-sodomy law so it can be enforced under a “good order and discipline” standard, although the armed services would continue their ban on open homosexuals in the ranks.

“The ‘don’t ask, don’t tell’ policy is the policy,” declared Pentagon spokesman Larry Di Rita, referring to the ban’s nickname. “It’s not going to change. There’s nobody here contemplating changing it.”

What the Pentagon is proposing is an attempt to fall in line with the U.S. Supreme Court decision, Lawrence v. Texas, which struck down a state law banning consensual sodomy.

The Pentagon sent a proposal to Congress on April 7 asking it to strike the consensual sodomy ban from Article 125 of the Uniform Code of Military Justice (UCMJ). But it also plans to amend a regulation called the Manual for Courts-Martial that guides military lawyers. The amendment adds the words “consensual sodomy” to conduct that can be prosecuted under the UCMJ’s Article 134 as “prejudicial to good order and discipline.”

What this means is that the Pentagon will continue to consider sodomy a crime. It will prosecute sodomy cases when the conduct is done during adultery, homosexual acts or other instances considered detrimental to good order and discipline.

“The fact is that that particular act will continue to be a crime under the Uniform Code of Military Justice,” Mr. Di Rita told reporters at the Pentagon. “It’s just got to do with how it’s identified in the code. It’s more of a legal harmonization with case law.”

If Congress approves the change, it appears to provide protection from ongoing court challenges. By directly linking sodomy to the issue of “good order and discipline,” the Pentagon is couching it around an issue for which federal courts historically have granted the military great leeway.

The ban on homosexuals is contained in a section of the federal Title 10 statute that regulates the military. The ban is not based on the sodomy law, but on a finding that open homosexuality is harmful to good order.

The Pentagon’s longtime ban on homosexuals was put into law by President Clinton in 1993 as part of a compromise that set up the policy of “don’t ask, don’t tell.” It ended the practice of asking personnel whether they are homosexual, but continued the prohibition of homosexual conduct.

The Government Accountability Office reported that the military has discharged 9,488 personnel under the law from 1993 to 2003.

Homosexual rights groups filed a series of lawsuits nationwide, but in every case a federal appeals court upheld the ban.

“The proposed change rightly keeps consensual sodomy a crime that is prejudicial to good order and discipline,” said retired Army Lt. Col. Robert Maginnis. “After all, homosexual sodomy endangers combat effectiveness, the product of unit cohesion and readiness, which includes good order, discipline, privacy, morale, core values, unit bonding and medical issues.”

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