National
Gay sex remains a crime under military law
‘Don’t Ask, Don’t Tell’ repeal leaves sodomy ban unchanged
Aubrey Sarvis, executive director of SLDN, said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal of ‘Don’t Ask, Don’t Tell.’ (Washington Blade file photo by Michael Key)
Much of the nation was riveted over the drama surrounding the congressional vote last month to repeal the “Don’t Ask, Don’t Tell” law barring gays from serving openly in the military.
But in a little-noticed development, Capitol Hill observers say Congress is in no mood to take a follow-up action recommended by Pentagon officials — the repeal of a longstanding military law that classifies consensual sodomy among both gay and straight service members as a crime.
Gay rights attorneys and experts in military law say the sodomy law provision known as Article 125 of the Uniform Code of Military Justice has been rarely enforced in recent years in cases where sexual activity has been consensual and “fraternization” between officers and lower ranking members has not be a factor.
And the experts say a 2004 decision known as U.S. v. Marcum by the U.S. Court of Appeals for the Armed Services placed limits on the enforcement of Article 125 based on a U.S. Supreme Court decision one year earlier that declared state sodomy laws unconstitutional.
Yet because the military court did not overturn Article 125, its characterization of gay sex as criminal acts punishable by court martial will remain on the books until Congress repeals the statute, leaving in place what some activists say is an unfair stigma associated with gays and lesbians in the military.
Gay rights attorneys have said the Supreme Court could overturn the military sodomy law by affirming that the Lawrence v. Texas decision fully covers the military. But it could take years before a new military case reaches the high court.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has led efforts to repeal “Don’t Ask, Don’t Tell,” said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal.
The repeal law passed by Congress and signed by President Obama in December doesn’t allow full repeal to take effect until the president, the Secretary of Defense and chair of the military’s Joint Chiefs of Staff determine troops and commanders are fully prepared for the change.
“So I would say no, that our top priority for this Congress is not the repeal of Article 125,” Sarvis told the Blade. “Do I think it should be repealed? Yes. Has SLDN been working over the last several years for repeal? Yes.”
Among those agreeing with Sarvis’ assessment is gay U.S. Rep. Barney Frank (D-Mass.).
“I’m skeptical and frankly at this point I don’t think it’s a good idea to press ahead with that one,” Frank said Tuesday, noting that gay rights opponents would likely use a debate on sodomy repeal in the military to push “hidden agendas.”
Sarvis summarized the views of other LGBT advocates when he said the Republican-controlled House would almost certainly refuse to even consider a bill to repeal Article 125. He said the need for pushing other LGBT-related issues in the military and other areas outweighs expending resources on Article 125.
Although Article 125 applies to gays and straights alike, gay rights advocates have said military authorities used it to target gay and lesbian service members in the past, especially in the years prior to “Don’t Ask, Don’t Tell.” If it remains on the books, some wonder whether a future president less supportive of LGBT rights might reinstate its full enforcement.
Longtime D.C. gay rights leader Frank Kameny, who assisted gay service members in the 1970s and 1980s, long before SLDN and other LGBT rights groups existed, said military investigators waged what he and other activists called “witch hunts” to identify and discharge gays on grounds that they violated Article 125.
Under Article 125, “any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense,” the article states.
Under the 2008 version of the military’s official manual for courts martial, unnatural carnal copulation under Article 125 is defined as a person taking into his or her “mouth or anus the sexual organ of another person or of an animal…or to have carnal copulation in any opening of the body, except the sexual parts, with another person.”
Sarvis and Aaron Belkin, director of the Palm Center, an arm of the University of Southern California that studies issues related to gays in the military, each said they know of almost no cases in recent times where service members, gay or straight, have been prosecuted under Article 125 for engaging in consensual sex in private.
The two noted that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.
The latter category of cases, known as fraternization, is considered a strong breach of military rules because sexual relations between an officer and a subordinate are believed to harm the system of order and discipline deemed important in the military.
Bridget Wilson, a San Diego attorney in private practice who has represented gay and lesbian service members for more than 20 years, said she agrees with Sarvis and Belkin’s assessment about the infrequency of Article 125 enforcement in recent years for consensual sex.
But Wilson said the pressure that “Don’t Ask, Don’t Tell” has placed on gay and lesbian service members to conceal their sexual orientation during the 17 years it has been in effect has led to many cases where service members “fabricate” a non-consenting allegation to protect themselves from being thrown out of the service.
If a service member ensnared in an investigation over alleged acts of sodomy admitted to having consented to such acts, Wilson said, it was equivalent to an admission to being gay and grounds for an automatic discharge under “Don’t Ask, Don’t Tell.”
“What I do see is false accusations of assaults,” she said in describing some cases faced by her clients. “You get a lot of, ‘I was so drunk last night I don’t remember a thing’ after he gets busted for having sex with another man.”
According to Wilson, some military prosecutors have interpreted impairment on the part of a service member due to alcohol consumption as a sign that the service member could not give true “consent” to a sexual act.
“So the problem with ‘I was so drunk that I don’t remember a thing’ is it could convert from [consensual] sodomy into forced sodomy with very serious consequences in the criminal courts,” she said.
With the repeal of “Don’t Ask, Don’t Tell,” Wilson said she is hopeful that the perceived need by frightened service members to fabricate a non-consenting sex allegation to avoid being discharged from the service will become a thing of the past.
She said military authorities notoriously handled similar cases with straight couples engaging in alleged sodomy differently because there is no “straight” version of “Don’t Ask, Don’t Tell.”
“They might find themselves punished by losing a stripe or losing leave time—that sort of thing,” Wilson said. “For my same-sex clients, before ‘Don’t Ask, Don’t Tell’ goes away, they’re out. They’re gone. And they’re probably facing administrative separation with an other-than-honorable discharge.”
In its widely publicized Nov. 30 report, the Pentagon’s Joint Service’s Committee consisting of top military leaders — which recommended the repeal of ‘Don’t Ask, Don’t Tell’ — also called on Congress to repeal Article 125.
The committee report points to both the U.S. v. Marcum decision, which limits the enforcement of Article 125, and the Lawrence v. Texas ruling that declared state sodomy laws unconstitutional as they pertain to consenting adults in the privacy of the home.
“In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation,” the report says.
“The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be ‘service discrediting’ (i.e., in public or between a superior and subordinate), should remain on the books,” the report says.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said HRC favors a prompt repeal by Congress of Article 125. He said the group also disagrees with the military court decision upholding Article 125 under some circumstances and feels the Supreme Court’s Lawrence decision, which overturned state sodomy laws, should also cover the military in its entirety.
“HRC expects that post-DADT repeal, Article 125 would only be used in circumstances involving non-consensual acts, so there should be no negative impact on gay and lesbian service members,” Cole-Schwartz said.
Former Army Lt. Dan Choi, who emerged as one of the nation’s most visible opponents of “Don’t Ask, Don’t Tell” after being discharged under the statute, said he recognizes that Congress is unlikely to repeal Article 125 any time soon. But he criticized SLDN and other LGBT groups for not being more aggressive in pushing for its repeal at the present time.
“Leaders [should] do what is important and difficult and lead,” he said.
Bryan Thomas, a spokesperson for Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, said Senate Democratic leaders were reviewing the Pentagon report’s call for Congress to repeal Article 125. He said a Senate repeal measure would most likely be introduced as an amendment to the National Defense Authorization Bill, but he had no further details by press time on whether or when such a measure would be introduced.
“We expect the administration to submit a legislative proposal for repeal or revision of Article 125 of the UCMJ, and such a proposal would certainly be carefully considered by the committee,” Thomas said.
Spokespersons for Republican and Democratic leaders in the House and Republican leaders in the Senate could not be immediately reached.
U.S. Supreme Court
Concern over marriage equality in US grows two decades after first Mass. same-sex weddings
Gay and lesbian couples began to marry in Bay State in 2004
Two decades after Massachusetts became the first state to legalize same-sex marriage, a new study reveals both significant progress and ongoing challenges for married LGBTQ couples in the U.S., with a growing sense of insecurity about the future of their rights.
The Williams Institute at UCLA School of Law surveyed 484 married same-sex couples from all 50 states and D.C. The study, released Monday, marks the 20th anniversary of legal same-sex marriage in the U.S.
Researchers found that 93 percent of respondents cited love as a primary reason for marrying, with 75 percent also mentioning legal protections. Over 83 percent reported positive changes in their sense of security, and 74.6 percent noted improved life satisfaction since marrying.
However, the study also highlighted persistent discrimination and growing concerns about the future. About 11 percent of couples who had a wedding reported facing prejudice during the planning process.
Alarmingly, nearly 80 percent of respondents expressed concern about the potential overturning of the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. This anxiety has been exacerbated by initiatives like Project 2025, a conservative policy blueprint that some fear could roll back LGBTQ rights if implemented.
The possibility of a former President Donald Trump victory in the upcoming election has further intensified these concerns. Many respondents cited Trump’s previous U.S. Supreme Court appointments and his statements on LGBTQ issues as reasons for their apprehension. One participant stated, “The thought of another Trump presidency keeps me up at night. We’ve come so far, but it feels like our rights could be stripped away at any moment.”
The current political climate has 29 percent of respondents considering moving to another state, with 52.9 percent citing socio-political concerns as a primary reason. This reflects a growing sense of insecurity among LGBTQ couples about their rights and freedoms.
Brad Sears, founding executive director of the Williams Institute, noted, “The data clearly show that marriage equality has had a profound positive impact on same-sex couples and their families. However, it also reveals ongoing challenges and serious concerns about the future of these rights in light of current political trends and the upcoming election.”
Christy Mallory, legal director at the Williams Institute and lead author of the study, added, “This research provides crucial insights into the lived experiences of same-sex couples two decades after marriage equality began in the U.S. The high level of concern about potential loss of rights underscores the continued importance of legal protections and public support for LGBTQ+ equality.”
The study found that 30 percent of surveyed couples have children, with 58.1 percent of those parents reporting that marriage provided more stability for their families. However, many of these families now worry about the security of their legal status in the face of potential policy changes and shifting political landscapes.
As the nation reflects on two decades of marriage equality, the study underscores both the transformative power of legal recognition and the ongoing need for vigilance in protecting LGBTQ+ rights. The findings highlight the complex reality faced by same-sex couples in America today: Celebrating hard-won progress while grappling with uncertainty about the future, particularly in light of upcoming political events and potential shifts in leadership.
State Department
State Department hosts meeting on LGBTQ rights and foreign policy
Event took place before Pride Month reception
Secretary of State Antony Blinken on Thursday hosted a group of LGBTQ activists and politicians from around the world at the State Department.
The event — described as a “Convening on U.S. Foreign Policy: National Security, Inclusive Development, and the Human Rights of LGBTQI+ Persons” — took place before the State Department’s annual Pride Month reception. Participants included:
• Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights
• U.S. Ambassador to the U.N. Linda Thomas-Greenfield
• U.S. Trade Representative Katherine Tai
• U.S. Ambassador to India Eric Garcetti
• Suzanne Goldberg, senior advisor to the Under Secretary of State for Civil Security, Democracy, and Human Rights
• Under Secretary of State for Civilian Security, Democracy, and Human Rights Uzra Zeya
• U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam
• USAID Counselor Clinton D. White
• National Security Council Senior Director for Democracy and Human Rights Kelly Razzouk
• Assistant U.S. Secretary of Health Adm. Rachel Levine
• National Security Council Human Rights Director Jess Huber
• U.N. Assistant Secretary General for Human Rights Ilze Brandt Kehris
• Icelandic Ambassador to the U.S. Bergdís Ellertsdóttir
• Council for Global Equality Co-Executive Director Mark Bromley
• Outright International Senior Advisor for Global Intersex Rights Kimberly Zieselman
• Essy Adhiambo, executive director of the Institute for Equality and Non Discrimination in Kenya
• Pau González, co-chair of Hombres Trans Panamá and PFLAG-Panamá
“Forty-five years ago, thousands gathered in D.C. in what became the first national march for LGBTQI+, demanding their voices be heard,” said Thomas-Greenfield in a post to her X account that showed her speaking at the event. “We must continue to carry forward the spirit of these pioneers and fight for equal rights and dignity for all.”
Forty-five years ago, thousands gathered in DC in what became the first national march for LGBTQI+, demanding their voices be heard.
We must continue to carry forward the spirit of these pioneers and fight for equal rights and dignity for all. 🏳️🌈🏳️⚧️ pic.twitter.com/oph2Ahmfhq
— Ambassador Linda Thomas-Greenfield (@USAmbUN) June 28, 2024
President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administration’s overall foreign policy.
“LGBTQI+ rights are human rights,” said Blinken. “Our government has a responsibility to defend them, to promote them — here and everywhere.”
Blinken noted consensual same-sex sexual relations remain criminalized in 64 countries, with the death penalty in 11 of them.
He specifically highlighted Uganda’s Anti-Homosexuality Act and Hungarian Prime Minister Viktor Orbán’s government’s “smearing scapegoating, stigmatizing LGBTQI+ persons — vilifying them with degrading labels, denying them equal rights, normalizing violence against them.” (Gay U.S. Ambassador to Hungary David Pressman this month marched in the annual Budapest Pride parade.)
Blinken noted Iraqi MPs earlier this year “passed legislation that punishes same-sex relations with up to 15 years in prison.” He also pointed out that Indonesian lawmakers approved a new criminal code banning extramarital sex.
“In a nation where same-sex couples cannot marry, these laws effectively make all same-sex conduct illegal and they undermine privacy for all Indonesians,” said Blinken.
“We’re defending and promoting LGBTQI+ rights around the world,” he said.
Blinken noted seven countries — Barbados, St. Kitts and Nevis, Antigua and Barbuda, Dominica, Namibia, Singapore, the Cook Islands — have decriminalized consensual same-sex sexual relations over the last two years. He also highlighted Greece, Liechtenstein, and Thailand this year extended marriage rights to same-sex couples, and other countries are banning so-called “conversion therapy.”
“These achievements are possible because of incredibly courageous human rights defenders and government partners on the ground, but I believe America’s support is indispensable,” said Blinken. “When we engage — sometimes publicly, sometimes privately, sometimes both — when we share our own knowledge and experience, we can and we do achieve change.”
Blinken also announced the U.S. now considers sexual orientation and gender identity are part of the International Covenant on Civil and Political Rights that took effect in 1976.
“This is one of the key treaties committing nations to upholding universal rights,” he said.
“In our regular reporting to the council on human rights, we will continue to include incidents of discrimination or abuse committed against LGBTQI+ persons, now with the clear framework of this well-supported interpretation,” added Blinken. “That will further empower our efforts.”
Blinken reiterated this point and the Biden-Harris administration’s commitment to the promotion of LGBTQ and intersex rights abroad when he spoke at the State Department’s Pride Month event.
“Defending, promoting LGBTQI+ rights globally is the right thing to do, but beyond that, it’s the smart and necessary thing to do for our country, for our national security, for our well-being,” he said.
The White House
Jill and Ashley Biden headline White House Pride celebration
First lady celebrated historic pardons of LGBTQ veterans
First lady Jill Biden and the president and first lady’s daughter, Ashley Biden, headlined the White House Pride celebration on the South Lawn on Wednesday, followed by a performance by singer and actress Deborah Cox.
“My dad has built the most pro-equality administration” in history, Ashley Biden said, crediting the work of LGBTQ people of color like Marsha P. Johnson, a prominent figure in the Stonewall uprising of 1969, as well as “so many of you [who] have continued to lead their fearless fighting against against injustice here and around the world.”
She introduced her mother as “the woman who taught me to be myself up showed me in so many ways how I can make a difference” and who “works every single day, tirelessly, to ensure that all people have the opportunities and freedoms that they deserve.”
“I hope that all of you feel that freedom and love on the South Lawn today,” Jill Biden said.
Her remarks were briefly interrupted by a protestor’s chants of “no Pride in genocide,” which was drowned out by chants of “four more years.”
The first lady noted how many of the attendees came “here from states that are passing laws targeting LGBTQ Americans.”
“There are those who see our communities and our families and wish to tear them down,” she said, “those who can’t see that the world is so much bigger and [more] beautiful than they know — but when our homes are threatened, when they strip away our rights, and deny our basic humanity, we say, ‘not on our watch.'”
“Pride is a celebration, but it is also a declaration,” the first lady said, highlighting the U.S. Supreme Court’s ruling in Obergefell v. Hodges nine years ago, which established marriage equality as the law of the land.
She then credited the accomplishments of the Biden-Harris administration on matters of LGBTQ rights, including the repeal of the previous administration’s ban on military service by transgender servicemembers and the FDA’s loosening of restrictions on blood donation by gay and bisexual men.
The first lady also celebrated the president’s announcement earlier on Wednesday that he will pardon LGBTQ veterans who were discharged and court martialed because of their sexual orientation or gender identity.
“We will never stop fighting for this community,” she said.
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Canada1 day agoToronto Pride parade cancelled after pro-Palestinian protesters disrupt it
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Politics5 days agoLGBTQ issues absent from Trump-Biden debate
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Theater4 days agoStephen Mark Lukas makes sublime turn in ‘Funny Girl’
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Baltimore3 days agoDespite record crowds, Baltimore Pride’s LGBTQ critics say organizers dropped the ball