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December 13, 2004
More Lawrence Mischief

The Army Court of Appeals has thrown out a heterosexual sodomy conviction based in part on the Supreme Court decision in Lawrence v. Texas, throwing the ban on gays serving in the military into doubt. The New York Times reports that the impact on military policy will likely be indirect but cumulative:

The decision, issued late last month by the United States Army Court of Criminal Appeals, was based in part on the Supreme Court opinion in Lawrence v. Texas, which declared last year that the Texas sodomy statute violated the right to privacy.

The case before the Army court involved a male Army specialist who admitted that he had engaged in consensual oral sex in a barracks room with a female civilian whom he had met at a nightclub. But those seeking to abolish the military's "don't ask, don't tell" policy, and some legal experts, say the ruling is also applicable to private gay sex - thus cracking the foundation of the military's rationale for requiring gays to serve in silence.

Once again, Lawrence raises its ugly head, constraining public policy -- and now military policy -- out of a ridiculously broad privacy expectation regarding public behavior. In this case, the behavior wasn't even private; the couple engaged in oral sex in an Army barracks, yet the appellate court applied the silliness of Lawrence. The Times quotes C. Dixon Osburn, a gay-rights advocate for military personnel, as saying that "Private, consensual conduct in the bedroom has no impact on the battlefield," but it happened on Army property. Since when does the Army have no control over the behavior of its members on their own bases?

I think the ban on gays serving in the military is silly and should be discarded. Just as Barry Goldwater once remarked, I'm only concerned that they shoot straight. However, that decision is a public-policy question, not a Constitutional one, regardless of what Lawrence says. The spreading nature of that decision keeps confirming the worst fears of those who opposed it. No one has a "right" to privacy when they conduct sexual activity on a military base, regardless of whether the sex was oral or copulatory. The breakdown in discipline does affect battle readiness, no matter what Mr. Osburn claims; when enlisted personnel suddenly get granted carte blanche to conduct themselves in any manner of sexual activity in the barracks, does Mr. Osburn really think that soldiers will have their mind on training?

The Army should appeal this decision back to the Supreme Court, which should take the opportunity to narrow the application of Lawrence -- or better yet, reverse it. Bad law and policy is not necessarily unconstitutional, and the Court should belatedly recognize the potential for mischief it unleashed in the earlier decision.

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Posted by Ed Morrissey at December 13, 2004 7:17 AM

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