Lawrence and the Military

SCOTUSBlog has an interesting post:

“The Pentagon’s effort to deny members of the military services any of the benefit of the Supreme Court’s 2003 decision in Lawrence v. Texas has faltered on the first try. By a 4-1 vote, the U.S. Court of Appeals for the Armed Forces (CAAF) has indicated that it assumes that private, homosexual activity between consenting adults may be protected in the military setting. It accepted the government’s plea to treat the military as different, but impliedly rejected the argument that it is so different that the rights identified in Lawrence do not apply there at all. That appears to be the most important facet of the ruling by the highest military court Monday in the case of U.S. v. Marcum (docket No. 02-0944).”

The Court declined (warning: pdf) to consider whether the Army’s prohibition on sodomy was unconstitutional on its face, on the grounds that (a) “facial challenges to criminal statutes are “best when infrequent”” (p. 22) and (b) the statute in question covers both forcible and non-forcible sodomy, and Lawrence clearly does not require striking down prohibitions on forcible sodomy. Instead, the Court considered whether the statute is unconstitutional as applied to the case at hand. It concludes that since the conduct in question was not forcible, it does fall under the general liberty interest identified by Lawrence. However, the Court argued that since Lawrence states that the liberty interest it identifies does not establish a right to have sex with persons “who are situated in relationships where consent might not easily be refused”, and since the case at hand involved the defendant having sex with someone under his command, the application of the prohibition on sodomy in this case is constitutional, despite Lawrence.

I am not a lawyer, so I may be misreading this, but it seems to me to leave open the possibility that the CAAF might conclude that prohibiting consensual homosexual activity between persons who are not in one another’s chain of command is unconstitutional. This would be very interesting.