Apr 29, 2005  |  By: LOU CHIBBARO JR.  | COMMENTS     

President Bush must give final approval through an executive order to enable the Pentagon to preserve its policy of criminalizing consensual sodomy among military service members, according to attorneys familiar with military law.

The Department of Defense has been deliberating over whether its military sodomy law could be retained since 2003, when the U.S. Supreme Court struck down state sodomy laws on grounds that they infringe on the constitutional right of adult citizens to engage in private, consensual sex. The military has
claimed the law banning sodomy is its main justification for not allowing gay men and lesbians to serve openly.

Most legal experts have said the Supreme Court ruling, which was hailed by gay rights attorneys, applies equally to the military and the civilian population.

The DOD disclosed its strategy for retaining its sodomy prohibition in the wake of the Lawrence vs. Texas decision on April 7, when it sent Congress a proposed amendment to the Uniform Code of Military Justice, the statute that contains the military’s sodomy law. The DOD also sent Congress a proposed change to its Manual for Courts-Martial, which has served as a set of regulations the DOD has used to implement various provisions in the Uniform Code of Military Justice, known as the UCMJ.

Gay activists initially praised the proposed changes after the New York Times reported last week that they called for removing the prohibition of consensual sodomy from the UCMJ. But a DOD spokesperson quickly contradicted the Times report, saying the DOD plans to retain consensual sodomy as a crime by moving it from one section of the UCMJ to another, and making it a regulatory offense in the court martial manual.

The Servicemembers Legal Defense Network, a gay litigation group, called the proposed changes a “shell game” that would not stand up to a legal challenge under the Lawrence decision. SLDN noted that at least two military appeals court rulings have cited the Lawrence decision, with one overturning a military sodomy conviction last December and another curtailing the military’s enforcement of its sodomy law in August 2004.

“Pentagon leaders cannot run and hide from the Constitution,” said Sharra Greer, SLDN’s director of policy and law.

In its proposed changes, the DOD calls for moving the sodomy prohibition from Article 125 of the UCMJ, which is considered a section of the military’s criminal law, to the UCMJ’s Article 134. Article 134, among other issues, addresses matters pertaining to conduct considered “prejudicial to good order and discipline” among service members.

Provisions under Article 134 are enforced through the DOD’s Manual for Courts-Martial. Changes to the manual are considered to be regulatory in nature and are not specifically part of the UCMJ. However, they must be put in place by the president, with the approval of Congress, the DOD told United Press International on Monday.

President Clinton issued two separate executive orders changing the DOD Manual for Courts-Martial in ways that supported gay rights. One of his changes created a provision to prosecute hate crimes. The other change prevented the military from investigating service members for being gay if information about their sexual orientation surfaced in a routine background check for a security clearance.

Tara Andringa, a spokesperson for Sen. Carl Levin (D-Mich.), the ranking minority member of the Senate Armed Services Committee, said it is widely believed among Capitol Hill observers that Bush will agree to issue an executive order retaining the military’s sodomy prohibition.

Andringa noted that the DOD most likely sent its recommendations to Congress calling for the changes needed to preserve the military sodomy prohibition with the approval of the White House.

She said Levin, who has been a critic of some of the Bush administration’s military policies, has not yet commented on the proposal to retain the military’s sodomy prohibition.

A spokesperson for Senator John Warner (R-Va.), chair of the Armed Services panel, did not respond to a Blade inquiry by press time. Warner is considered one of the most influential members of Congress on military matters.

Gay rights attorneys believe the outcome of the military’s sodomy law is important because it has been cited by military leaders as a key reason for prohibiting gays from serving openly in the military under the Pentagon’s “Don’t Ask, Don’t Tell” policy. That policy, which President Clinton proposed ...