Monday, December 20, 2010

DADT vs Uniform Code of Military Justice (UCMJ)

The UCMJ was adopted in the early 1950's and it defines gay and lesbian as "sodomy" and a court martial offense. The UCMJ is the working criminal law for all the armed services. It's an act of congress, and the executive branch cannot change it. The Clinton era Don't Ask Don't Tell did NOT change the UCMJ. Clinton figured he didn't have the votes to do that.
Don't ask Don't Tell told commanders not to snoop and gay and lesbian troops to keep it quiet. But it was still "sodomy" and a court martial offence.
Amid all the hoopla surrounding this week end's revision, I still haven't heard if Congress actually revised the UCMJ this time, throwing out the articles on sodomy. Your news media at work...


Anonymous said...

In the U.S. military, the United States Army Court of Criminal Appeals has ruled that the Lawrence v. Texas decision applies to Article 125 of the Uniform Code of Military Justice, the statute banning sodomy. In both United States v. Stirewalt and United States v. Marcum, the court ruled that the "conduct falls within the liberty interest identified by the Supreme Court."[47] However, the court went on to say that despite Lawrence's application to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" which would place the conduct "outside any protected liberty interest recognized in Lawrence."[48] Examples of such factors could be fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline.

United States v. Meno and United States v. Bullock are two known cases in which consensual sodomy convictions have been overturned in military courts under the Lawrence precedent.[49]

Dstarr said...

That may be of great interest to lawyers, but regular people go by the written word. Especially in the military, where everyone strives to do things "by the book". As long as the UCMJ calls gay and lesbian "sodomy" and a court martial offense, gays and lesbians are going to get charged for sodomy. To place gay and lesbian troops on the same footing as the straight troops, the UCMJ must be revised throwing out the sodomy articles. If Congress lacks the stones to do that, then little will change.