United States v. Marcum

Summary

In this criminal prosecution of an Air Force sergeant, a challenge was raised to the constitutionality of Article 125 of the Uniform Code of Military Justice (the military’s sodomy law) in the wake of Lawrence v. Texas, Lambda Legal’s U.S. Supreme Court victory striking down all sodomy laws. We filed a friend-of-the-court brief, along with Servicemembers Legal Defense Network, the ACLU and ACLU of the National Capital Area. The Court of Appeals for the Armed Forces held that Lawrence does apply to the military and establishes a zone of privacy for certain conduct. The court established a three-prong test to analyze whether it was constitutional to apply Article 125 in a given case. The test examines the particular conduct at issue and factors such as privacy, age, lack of coercion and lack of monetary compensation to determine whether the conduct normally would fall within the liberty interests identified by Lawrence. It then looks to whether factors peculiar to the military take the conduct outside the protection against government interference that Lawrence recognized to exist in civilian contexts.

Context

Lawrence v. Texas struck down all state sodomy laws in the United States. The Marcum case is the most significant of several military prosecutions involving sodomy charges in which Lambda Legal joined other organizations in submitting friend-of-the-court briefs, discussing the effect of Lawrence on the military’s sodomy law.

Lambda Legal's Impact

The military’s sodomy law has been one factor some courts have relied on in considering the constitutionality of the “Don’t Ask, Don’t Tell” policy. Having the Court of Appeals for the Armed Forces recognize that the liberty interests recognized in Lawrence v. Texas exist within the military, even if balanced somewhat differently due to the military context, is a significant step forward in ending the discriminatory treatment of gay people in the armed forces.

History

• May 2000 Technical Sergeant Eric P. Marcum is tried and convicted by a general court martial on multiple criminal charges, including a charge of violation of the military’s sodomy law (Article 125 of the Uniform Code of Military Justice).
• July 2002 Marcum’s conviction is affirmed by the Air Force Court of Criminal Appeals.
• October 2003 Lambda Legal, the ACLU, the ACLU of the National Capital Area and Servicemembers Legal Defense Network file a friend-of-the-court brief with the United States Court of Appeals for the Armed Forces.
• August 2004 The Court of Appeals for the Armed Forces finds that Lawrence applies to the military’s sodomy law, but that, the special nature of the military means that, in certain circumstances, that law can be applied constitutionally. The court affirms Marcum’s conviction because of his supervisory authority over the subordinate with whom he had oral sex.