Homosexuality and Military Service (Merged thread)

[jmm99]

I'm not going to continue quibbling with you - so you "win".

From your About Me, I notice two things among your creds: "Law Degree" and "contrarian". That is familar territory for me. I run into a lot of nitpicking lawyers; but with them, I have the option of saying: "You brief it and file it. I'll brief it and file it. Let the judge decide it." That's not an option here.

So, I'll forego any response to your assertions about my "position" re: the two boxers and the doctor-patient. As Sam says, the discussion has moved off topic and a "contrarian discourse" would not be helpful.

Cheers

Mike

[JMA]

Yes you are all off topic but it valid and important for a few reasons.

1) I'm sending my ethics and law students to read this thread.

2) There are only two groups of people who seem to care about the Constitution and law besides attorneys:
a) People who have sworn an oath to protect it
b) People bent on breaking it

3) The issue is directly related to the freedom of service members. If the argument turned against homosexuals based on the "act" then what other behaviors could be banned (out of wedlock sex, riding a motorcycle without a helmet, ownership of firearms or other weapons, right to adopt a foreign national)?

OK, so (may I humbly suggest that the US) get gay rights sorted out in the constitution before imposing them on the military.

[motorfirebox]

OK, so (may I humbly suggest that the US) get gay rights sorted out in the constitution before imposing them on the military.

There's nothing in the Constitution about sexuality at all. I don't see why there needs to be.

[jmm99]

and for whoever else might be interested in reading some material judicial opinions from the real world.

1. Like them or not, Griswold v Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U. S. 113 (1973); and Lawrence v Texas, 539 U.S. 558 (2003), are the facts of life so far as the private sexual acts of competent, consenting US civilian adults are the concern of US civilian criminal law. [1]

2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts were affirmed: US v Marcum, 60 M.J. 198 (2004), and US v Stirewalt, 60 M.J. 297 (2004). [2]

What distinguishes the US military cases (so far as the USCAAF was conceerned) from the US civilian cases (so far as the opinions in Lawrence were concerned) ? Were different constitutional and statutory provisions in play in the military cases ?

3. The EU also has its own view of gays in the military. See, The Legal Treatment of Homosexuals in the Armed Forces of Europe (Oxford University Public Interest Law Submission), which seems based on treaty and statutory law of the EU and of individual countries in response to the EU lead.

What distinguishes the EU position from the SCOTUS-Lawrence position and from the USCAAF position ?

-------------------------------------------------
[1] The Justia link to Lawrence v Texas includes hyperlinks back to all of the material cases in the "sexuality" series in all of their "umbras", "penumbras" and "emanations".

[2] The USCAAF "Marcum" test is:

Marcum 3-Part Test for determining when the Constitution allows the prohibition of sodomy:

(a) Is the accused’s conduct within the liberty interest identified by the Supreme Court in Lawrence?

(b) Does the conduct encompass any behavior or factors identified as outside the analysis in Lawrence (i.e., public acts, prostitution, minors, persons who might be injured or coerced or who might not easily refuse consent)?

(c) Are there additional factors relevant solely in the military environment that affect the reach of the Lawrence liberty interest?

Some cases after the two 2004 USCAAF cases have been:

(4) United States v. Christian, 61 M.J. 560 (N-M. Ct. Crim. App. 2005) (consensual sodomy between accused, a recruiter, and “RW,” originally a volunteer ASVAB tutor at the accused’s recruiting office; although private and not specifically excepted under Lawrence, appellant’s conduct implicated military-specific interests described in the third prong of the Marcum framework. Specifically, his role as a Marine recruiter & his violation of a recruit depot general order). United States v. Bart, 61 M.J. 578 (N-M. Ct. Crim. App. 2005) (consensual sodomy between coworkers in violation of SecNavy Instruction, involved adultery, and one partner murdered a spouse to continue the relationship combined to violate Marcum third prong).

(5) United States v. Smith, 66 M.J. 556 (C.G. Ct. Crim. App. 2008). Assuming arguendo that the conduct was not the result of extortion, the sodomy in this case was between two consenting first-class cadets in different chains of command. As such, the court observed that the conduct appeared to fall within the Lawrence liberty interest. However, addressing the Marcum factors, the court found that Coast Guard Academy regulations prohibit sexual activities between cadets on board military installations, even if consensual. As there is a regulation prohibiting the behavior, the court held that the conduct constituting sodomy fell outside the protected liberty interest recognized in Lawrence v. Texas.

(6) United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App. 2009). In a prosecution of sodomy under Art. 133 as conduct umbecoming, military judge did not err in failing to instruct the members on the Marcum factors. “Whether an act comports with law, that is, whether it is legal or illegal [in relation to a constitutional or statutory right of an accused] is a question of law, not an issue of fact for determination by the triers of fact.”

Source: Criminal Law Deskbook, Volume II, Crimes and Defenses (The Judge Advocate General’s School, US Army; Charlottesville, Virginia; Summer 2010). Available from here, LCS Criminal Law Department. See Chap. 4, Sec. V, startng at 4-22 (p.140 pdf) for Sexual Offenses in general; and starting at 4-34 (p.156 pdf) for Sodomy in particular.

-----------------------------------------

Have fun with this primer.

Mike

[jmm99]

on (5) United States v. Smith, 66 M.J. 556 (C.G. Ct. Crim. App. 2008), in the footnotes of my prior post. The links are to the 2008 CGCCA opinion and to the 2010 USCAAF opinion (not in the 2010 Deskbook), affirming Webster Smith's conviction on multiple counts. The link given previously (my bad) will take you to "Sgt. Smith", an AG dog-handler case (which is interesting enough, but not quite on topic).

The Webster Smith case has generated quite a bit of blog content - just south of 4000 hits if you Google (Advanced Search) "webster smith" "coast guard academy". SCOTUS denied certiorari, 29 Nov 2010 - see, No more Appeals For Webster Smith (8 Dec 2010) - leaving the CGCCA and USCAAF decisions as the final word.

Regards

Mike

[motorfirebox]

2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts were affirmed: US v Marcum, 60 M.J. 198 (2004), and US v Stirewalt, 60 M.J. 297 (2004). [2]

Please note, the US Army Court of Appeals also chose to abide by Lawrence decision, citing it specifically, in US v Bullock (1996). This is important because in both US v Marcum and US v Stirewalt, there were more factors to consider than just the sexual act itself, whereas in US v Bullock the sex act was all there was to consider.

US v Marcum challenged the constitutionality of Article 125, which is just silly--as was discussed earlier on this board, 125 covers more than just consensual homosexual contact, and unlike readers and participants on these forums, a court doesn't have the option of applying common sense when someone challenges an entire article to attack a single provision of that article. Both Marcum and Stirewalt involved fraternization of servicemen within the same chain of command--both, in fact, involved a superior and their direct subordinate.

And in both Marcum and Stirewalt, the court recognized the general applicability of Lawrence to the military--they simply contended that there are aspects of military society which Lawrence doesn't apply to. Neither decision was a blanket rejection of Lawrence's applicability to the military.

[jmm99]

hold the bullocks !

Your US v Bullock (1996) is a Federal narcotics 4th Amendment case, decided 7 years before Lawrence. Your bad today; my bad yesterday when I initially mislinked US v Smith.

The link you want is US v Bullock (A. Ct. Crim. App. Nov 30,. 2004), appeal denied 61 M.J. 336 (USCAAF 2005). Bullock followed the three-prong Marcum test; and found none of the prongs were sufficient to allow an exception to Lawrence:

The providence inquiry failed to establish a sufficient factual predicate to objectively establish that appellant’s conduct was outside the liberty interest identified in Lawrence and Marcum. The facts admitted by appellant describe a consensual encounter between two adults in the privacy of a barracks room. Nothing in the providence inquiry indicates that anyone other than appellant and MG were present.[2] This conduct is squarely within the liberty interest recognized in Lawrence and Marcum.

Second, the conduct as described by appellant did not “encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence.” See Marcum, 60 M.J. at 206-207. The conduct did not involve a minor. See Lawrence, 539 U.S. at 578. It did not involve public conduct or prostitution. Id. It did not involve “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Id.

Finally, there are no “additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest.” Marcum, 60 M.J. at 207. Appellant described conduct with a civilian, with no military connection other than that it occurred in a barracks room. Appellant did not admit any facts during the providence inquiry which demonstrated any military necessity to circumscribe his liberty interest in engaging in private, consensual behavior with another adult. Consequently, the providence inquiry was insufficient to support appellant’s plea of guilty to this offense.

2 The government asserts that “the sodomy occurred in a military barracks room in the presence of appellant’s roommate.” The record does not establish that the conduct occurred in the roommate’s “presence.” However, even assuming the government did establish this fact during the contested portion of the case, appellant did not admit it during the providence inquiry into his plea to the consensual sodomy, which was the basis for the finding of guilty. See United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (stating that “[a] providence inquiry into a guilty plea must establish, inter alia, ‘not only that the accused himself believes he is guilty but also that the factual circumstances as revealed by the accused himself objectively support that plea’”) (quoting United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994).

Would the result be different if either of these facts were found true: (1) the act occured in the presence a non-involved third party spectator; or (2) a general order prohibited all multi-party sexual acts in the barracks (regardless of the gender involved) - following Patton (movie) comment re: this is a barracks, not a brothel ?

---------------------
motorfirebox, is this a comment to me or to others ?:

And in both Marcum and Stirewalt, the court recognized the general applicability of Lawrence to the military--they simply contended that there are aspects of military society which Lawrence doesn't apply to. Neither decision was a blanket rejection of Lawrence's applicability to the military.

To provide absolute clarity - but being a bit redundant, my supplemented statement of the two USCAAF cases:

2. Despite being completely briefed on the prior decision of SCOTUS in Lawrence v Texas, the United States Court of Appeals for the Armed Forces soon held in two cases (1) that the Lawrence decision did not apply to the private sexual acts of competent, consenting members [Marcum and Stirewalt] of the US armed forces; and (2) that convictions under Article 125 because of those sexual acts [of Marcum and Stirewalt] were affirmed: US v Marcum, 60 M.J. 198 (2004), and US v Stirewalt, 60 M.J. 297 (2004). [links and footnote 2 in original post]

Since I cited the three-prong Marcum test in footnote 2, my original statement of the two cases should have been adequate.

If your comment was addressed to someone else, then my response above has been redundant and a waste of time.

BTW: USCAAF is the highest military appellate court (below it are lower appellate courts for the Army, Navy-Marines, Air Force and Coast Guard).

Regards

Mike

[motorfirebox]

Sonuva... I wanted to link to something a bit more official than a gay history website archive. Ah well. Thanks for providing a proper link.

I read your footnote 2, but I wanted to clarify the ramifications--to show that the three-prong test wasn't being used as an excuse to avoid Lawrence altogether.

Regarding your questions, (1) I'm not sure--possibly? And (2)--certainly, though with respect to Patton, the barracks seem like a safer option than some of the hotels I've spent an evening in company with.

And absolute clarity is never a waste of time.

[jmm99]

reconsider your approach in seeking "clarification" - e.g., "Your para 2 is ambiguous to me. Do you mean this or that ?" - whether posted or in a PM - before firing.

Oh well, legal opinions in a Net forum are the inherent birthright of every poster (which is fine); but have the real world equivalence of paintball or airsoft "warfare" (which also is fine).

On another level (the real world), my thought, as I've tried to put these cases into some order, is what the hell would I advise a Soldier or Marine on what conduct is legal and illegal for him or her. The defender role.

Or conversely, what the hell do I tell a commanding officer as to what is legal and illegal (and what legal orders can he issue in this area). The prosecutor role.

Yeh, Lawrence is the "general rule", subject to the three-prong Marcum test - and when you start to add up the exceptions that allow prosecutions, the exceptions may eat up most of the so-called rule.

The regulations governing "barracks" (more broadly, what portion of a military reservation can be excluded from Lawrence - all, part ?; what conduct can be barred ?; etc.) are an example. Clearly, broad geographic regulation is allowed the CO:

United States v. Webster M. SMITH, No. 1275 (C.G.Ct.Crim.App. 2008)

The Regulations for the Corps of Cadets includes an Article 4-5-05 entitled Sexual Misconduct. (Appellate Ex. XXIV.) Paragraph a.3 thereof prohibits sexual conduct on board military installations, which includes the Academy, even if between consenting cadets. We find that Appellant’s conduct, as he testified to it (R. at 1326-27), was outside any protected liberty interest recognized in Lawrence. See Stirewalt, 60 M.J. at 304 (liberty interest is considered “in light of the established . . . regulations and the clear military interests of discipline and order that they reflect”). We note that a holding otherwise would apparently yield the anomalous result that the regulation would be enforceable as to all forms of sexual conduct except sodomy, as the Government pointed out at oral argument. [14]

14 We have found no authority suggesting that military regulation of sexual conduct generally may be unconstitutional.

The presence of the regulation readily distinguishes this case from those of the Army Court of Criminal Appeals opinions attached to Appellant’s brief, in which in-barracks consensual sodomy convictions were overturned. In one of them, the opinion specifies that there was no evidence of a barracks policy prohibiting the conduct. United States v. Meno, ARMY 20000733, at 4 (A.Ct.Crim.App. Jun. 22, 2005) (per curiam). In the other, a guilty plea case, the accused had not admitted any facts that would take the case out of the Lawrence liberty interest. [15]

15 Appellant’s clemency request to the Convening Authority, dated 22 August 2006, attached another Army Court of Criminal Appeals opinion and cited a Navy Court of Criminal Appeals opinion, each of which involved a guilty plea with no indication or admission by the accused of additional factors taking the case out of the Lawrence liberty interest.

United States v. Bullock, ARMY 20030534, at 5 (A.Ct.Crim.App. Nov. 30, 2004). We are not aware of any court-martial appellate decision overturning a sodomy conviction based on Lawrence when there was a regulation aside from Article 125, UCMJ, prohibiting the behavior. [16]

16 Under the circumstances of this case, even if Appellant were found not guilty of extortion and even if there were no regulation, it is not clear that the conduct would be within the Lawrence liberty interest. We do not reach that question.

Now, if you remove extortion and the regulation from the Webster Smith case, then I would say that we have something very akin to US v Bullock. Or, did I miss something ?

Yet, the Smith judges (in fn 16; after citing Bullock just after fn 15) say "it is not clear that the conduct would be within the Lawrence liberty interest."

It seems likely that the demise of DADT (and I don't expect it to be revived) will open the door to a lot of legal questions that have been lurking in the shadows.

Regards

Mike

[jmm99]

As you might gather from my prior post (ref to "paintball" and "airsoft", etc.), I'm not in one of my comfort zones (esp. considering the possible consequences, legal and military, in the real world).

So, taking this thread solely as learning experience, we've looked at some cases; but there is a much larger world of regulatory materials that have to come front and center.

To address sexual conduct issues with any smarts, one has to know all of the applicable regulations, rules, orders (DoD, service branch, command, etc.).

For example, re: General Orders, here is a brief explanation from the 2010 Operational Law Handbook (download from LCS Int & Op Law Dept)

C. Consider the need for or existence of a General Order for the operation.[11]

11 A general order (GO) is the commander’s tool to promote mission accomplishment and protect deployed forces. Much like the Rules of Engagement (ROE), GOs are a flexible way for the command to centrally plan, but de-centrally execute the commander’s intent. One of the earliest general orders was given at Bunker Hill, “Do not fire until you see the whites of their eyes.” Modern general orders include prohibitions on the use of privately owned weapons, alcohol, or entry into local religious or cultural buildings.

1. Draft a general order for the operation. Based upon mission requirements and command guidance, military justice supervisors and TC must draft the general order (GO) for the operation and have it ready for publication as soon as possible. Before attempting to draft a GO, JAs must determine if their higher headquarters already published a mission or theater specific GO. See examples at the end of this chapter (GOs for operations in Desert Shield, Haiti, and Allied Force). Judge advocates must also be aware that the higher headquarters may also prohibit or limit the ability of lower headquarters to promulgate general orders.

2. Publish a general order for the operation. The GO must be published and disseminated to all Soldiers prior to deployment. Violations of a properly published GO may be punished under Article 92, UCMJ. Even though the government need not prove knowledge of a lawful GO as an element of the offense, the contents of the GO should be aggressively briefed to all deploying Soldiers.

3. Conducting mission training / predeployment briefings. Judge Advocates must be thoroughly familiar with the GO for the operation and must provide extensive briefings prior to deployment. As with ROE training, supervisory JAs must ensure all members of the command understand the commander’s intent. Refresher training on the GO (and ROE) upon arrival in theater, and at regular intervals throughout the deployment, are critical tasks.

I've attached a pdf snip from the Handbook of some General Orders appended as examples (2010 Operational Law Handbook, snip: pp. 470-481).

As an example of regulations and rules, see AR 600-20:

Army Regulation 600-20
Personnel-General
Army Command Policy
Headquarters
Department of the Army
Washington, DC
18 March 2008
Rapid Action Revision (RAR) Issue Date: 27 April 2010

I've attached a pdf snip, "4-19. Homosexual conduct policy" (p.28; pdf p.34), which will be revised to accord with whatever the new policy exactly becomes.

Any additional links and comments adding to the learning experience re: regulations, rules and orders will be appreciated.

Frankly, I prefer war crimes, Laws of War and ROEs, etc., to this sexual conduct and gender stuff.

Regards

Mike

[Stan]

This Week at War: The Ask-Tell Era Begins

Rand's sanguine predictions concerning the repeal of DADT imply a renewed commitment by all service members to the military's traditional social contract. Under this contract, individuals who join the service agree to forfeit a portion of their individual autonomy and eagerly work hard at achieving the unit's goals. The other side of the military's social contract is the responsibility of the military's leaders to set high standards, to enforce the rules fairly, to assess subordinates based on merit, and to ensure that soldiers who fulfill their part of the bargain are treated with respect. Based on their research, Rand's analysts assume that U.S. service members will agree to this long-standing social contract after the end of DADT. That seems like a reasonable assumption, but it will require the goodwill of all to make it a reality.

More at the link...

[jmm99]

As stated above, I'm of the "don't ask, don't care" persuasion. This article is interesting - first day and all.

NYT - Marines Hit the Ground Running in Seeking Recruits at Gay Center

No deep thoughts or comments from me.

Regards

Mike

[selil]

No deep thoughts or comments from me.

Marines are professionals. Marines adapt. Looks to me like they did both with style.

[ganulv]

As a kid pre-DADT my mother came home from Guard one Sunday and said her unit commander (whom I remember from the couple of times I was in his presence as so understated it was calming) had called them all in and read them the Riot Act over a Xeroxed flyer with a gay joke on it which had been posted on the cork board. As soon as they were dismissed the fellow next to my mother turned to her and whispered, “Someone in this room is apparently unaware that his brother died of AIDS.” I know that a Marine weapons company and a National Guard medical company are at best apples and oranges, but given my own introduction to issues of homosexuality in the U.S. Military I have been for going on two decades now consistently puzzled by the notion that things are going to go t#ts up if homosexual servicemen and -women are allowed to acknowledge their sexual orientation.

[jmm99]

Well said.

I think you could add experience and expertise to this thread, New technologies and war legislation: a progress?

Up to you, of course.

Regards

Mike

[Ray]

In our Army, we don't care who is what or who is doing what so long as it does not create a disciplinary issue.

Of course, it is not that we do not know what is up, but so long as it is not 'rape' where we take suo moto cognisance and throw the man out without benefits, life goes on.

When the chaps are sharing cramped bunkers on the Line of Control and leave is rare, it can develop into a British public school. To believe it would not is being naive.

Indian army bunker
http://www.flickr.com/photos/pravinp/405753298/

[Fuchs]

I know that a Marine weapons company and a National Guard medical company are at best apples and oranges, but given my own introduction to issues of homosexuality in the U.S. Military I have been for going on two decades now consistently puzzled by the notion that things are going to go t#ts up if homosexual servicemen and -women are allowed to acknowledge their sexual orientation.

This puzzles me.

Isn't the rating of perceived masculinity typically like this (in descending order):

hetero males
homo females
homo males
hetero females

?

If a masculine psyche is the issue, shouldn't lesbians be more welcome in a military than normal women?



Well, I guess I shouldn't approach this with objectivity...

Disclaimer:
I would LOVE a world with about 30 % homo males. Seriously, so many competitors gone - the supply shortage of hetero men would make things so much easier for us!

[motorfirebox]

This puzzles me.

Isn't the rating of perceived masculinity typically like this (in descending order):

hetero males
homo females
homo males
hetero females

?

If a masculine psyche is the issue, shouldn't lesbians be more welcome in a military than normal women?



Well, I guess I shouldn't approach this with objectivity...

Disclaimer:
I would LOVE a world with about 30 % homo males. Seriously, so many competitors gone - the supply shortage of hetero men would make things so much easier for us!

In my experience, when homosexuality in the military is considered by those who oppose it, the focus is on homosexual males.

[Ken White]

In my experience, when homosexuality in the military is considered by those who oppose it, the focus is on homosexual males.

Due mostly to combat -- a male preserve until quite recently -- cohesion concerns. Most folks in the armed forces don't much care about what happens socially in the rear areas or out of combat but they do care about what happens or could happen if they and some others are committed to shooting events...

Serving female homosexuality was until recently known, accepted and other than ribald jokes, mostly ignored as a non-problem -- as was male gayness in most cases. Having served in units in both the Marines and the Army where known gay guys were also serving, my experience was they were generally but not universally accepted unless they got excessively blatant. Local solicitation or Campiness in Camp were not usually accepted...

The focus was and probably is still mostly on the homosexual male but the concern is divided. Some is for him, some for the straight guy who may react adversely for a host of good and bad reasons to the presence of a gay squad, platoon or company member (no pun intended). However, most concern by the large majority of serving persons is simply for the overall effect in all aspects on the unit -- though for a few people (very few and mostly old, both literally and figuratively...) the potential for 'embarrassing' incidents reflecting on the service is also an issue.

There are too many human variables to really have a one-size-fits-all solution or any pat answers. Yet we must...

[ganulv]

Serving female homosexuality was until recently known, accepted and other than ribald jokes, mostly ignored as a non-problem -- as was male gayness in most cases. Having served in units in both the Marines and the Army where known gay guys were also serving, my experience was they were generally but not universally accepted unless they got excessively blatant. Local solicitation or Campiness in Camp were not usually accepted...

I don’t know if it is a particularly American issue, but a lot (though not necessarily all or even the majority, really) of my countrymen do fail to divine that the public assertion of one’s beliefs, identity, ideology, etc. can wear on others, even those who put a premium on tolerance. Despite holding an opposing POV myself, I have worked with plenty of Republicans and atheists in my day and am fine with that part of them as long as they don’t go on about the genius of Rush Limbaugh and Richard Dawkins. That sort of balance is a hard (impossible?) thing to try to arrive at via a one-size-fit-all policy, for sure.

The focus was and probably is still mostly on the homosexual male but the concern is divided. Some is for him, some for the straight guy who may react adversely for a host of good and bad reasons to the presence of a gay squad, platoon or company member (no pun intended). However, most concern by the large majority of serving persons is simply for the overall effect in all aspects on the unit -- though for a few people (very few and mostly old, both literally and figuratively...) the potential for 'embarrassing' incidents reflecting on the service is also an issue.

I’ve been in Fayetteville on a Friday night. I would say the bar for embarrassing incidents is set pretty high at this point.