The last remaining sodomy statute in the United States is being challenged in court. Article 125 of the US Code of Military Justice (UCMJ) prohibits the practice of sodomy by both straights and gays, and it is regularly enforced by the military.

The case that may strike it down is United States v. Eric P. Marcum, a sergeant in the Air Force. In May 2000 he was found guilty of performing consensual oral sex on a fellow airman in the privacy of Marcum’s home.

The case has been appealed through the military courts and is now before the US Court of Appeals for the Armed Forces, the highest court in the system, subject only to the US Supreme Court.

The major legal development since the case began is that in June of this year, in the landmark decision of Lawrence v. Texas, the Supreme Court threw out all of the remaining state sodomy laws as unconstitutional. However, because of the Court’s traditional deference to the military on most matters, there is some question as to whether the Lawrence decision applies to the military.

Government lawyers are arguing that the Lawrence decision should not apply because it did not recognize a “fundamental right to engage in sodomy” and the court should defer to the judgment of the military on how it runs itself.

The Servicemembers Legal Defense Network (SLDN) took the lead in filing an amicus brief with the appeals court on Oct. 2. Lambda Legal and the American Civil Liberties Union (ACLU) joined them in arguing that, “Lawrence wiped away the sole justification that kept this Court from striking down Article 125 a decade ago.”

It said by overruling the Bowers decision that accepted the criminalization of sodomy the Court “made clear that the long-established right to personal autonomy precludes the criminalization of private, intimate conduct.” That also applies to the military.

Citing Pentagon reports on the widespread practice of sodomy by people of all sexual orientations, SLDN maintained, “Article 125 undermines morale and discipline by criminalizing sexual acts that are widely practiced, thereby forcing military personnel to dissemble about their sexual conduct.”

A second amicus brief argues that there is no evidence to suggest that doing away with Article 125 would harm unit cohesion or the good functioning of the military. Among those submitting that brief are Charles Moskos, known as the father of “Don’t ask, don’t tell,” and Ret. Admiral Bobby Inman, who headed up Naval Intelligence, the super secret National Security Agency, and later was deputy director of the Central Intelligence Agency.

SLDN Executive Director C. Dixon Osburn said they have been given 15 minutes during the period for oral arguments, which are scheduled for Oct. 7. The appeals court generally deals with administrative issues and seldom with constitutional ones. He believes that one of the five appeals judges is “a lost cause” on this issue, but the other four are open to legal arguments.

The decision may come as early as the end of this year. A favorable ruling would knock out one of the main props that support the antigay military policy known as “Don’t ask, don’t tell.”