The U.S. Army Court of Criminal Appeals overturned the conviction of a soldier for consensual sodomy earlier this month. In the case U.S. v. Bullock, the conviction concerned a heterosexual couple in which Army specialist Kenneth Bullock was convicted of engaging in consensual oral sex with a female civilian in a military barracks. According to The Washington Post, it is believed to be the first time that a military court has upheld the right of consenting adults to engage in oral sex in private.

In its decision, the appeals court cited last year’s Supreme Court case Lawrence v. Texas, where the court ruled 6-3 that sodomy laws are unconstitutional, overturning the Texas sodomy law because it violated the right to privacy.

The reference to the Lawrence case gives hope to opponents of the military’s “Don’t Ask, Don’t Tell” policy, which discharges service members for identifying themselves as gay, lesbian or bisexual. The Washington Post also reported that according to legal experts, the principles the judges used in reasoning their decision in U.S. v. Bullock would also apply to homosexual sex.

“The Army court’s decision is an encouraging, and important, first step in recognizing service members’ privacy rights,” said C. Dixon Osburn, executive director of Servicemembers Legal Defense Network (SLDN), in a press release. “Private, consensual conduct in the bedroom has no impact on the battlefield.”

Bridget Wilson, a San Diego lawyer who specializes in military law and also serves as a consulting counsel for SLDN, believes the appeals court’s ruling could have an indirect impact on “Don’t Ask, Don’t Tell”, but won’t necessarily overturn the law.

“The implications of [U.S. v. Bullock] and [Lawrence v. Texas] and the challenges to [Article] 125 have an indirect affect on future challenges to ‘Don’t Ask, Don’t Tell’ because the sodomy is not criminal per se, unless it has a bad effect in the military environment – i.e., some sort of interference with superior subordinate relationships,” Wilson explained. “Then one of the justifications for keeping it is damaged, but it does not eliminate ‘Don’t Ask, Don’t Tell’. It’s a completely separate universe.”

Wilson referred to Article 125, a sodomy statute within the United States military’s set of laws that is separate from civilian law, known as the Uniform Code of Military Justice (UCMJ). The UCMJ’s Article 125, states, “Any person who is subject to this charter 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.” It also states, “Any person found guilty of sodomy shall be punished as a court-martial may direct.”

Anna Curren, a local member of the national board of directors for SLDN, was encouraged by the appeals court’s ruling and believes this is the first step towards ending the military’s “Don’t Ask, Don’t Tell” policy.

“It’s an enormously positive thing. There’s a lot of pressure there now and they [the military] need forces so badly that the very thing I never thought would happen under a Republican administration seems to be a good possibility, that it may in fact get rid of that [‘Don’t Ask, Don’t Tell’]… so we’ll see,” she said.

According to SLDN data, since “Don’t Ask, Don’t Tell” was implemented, during the period from 1994 to 2003 the U.S. military has discharged 9,682 gay, lesbian and bisexual personnel under the ban.

Wilson believes the main concern regarding the appeals court’s decision is whether or not higher courts will comprehend and support the decision. If so, then it will be a step in the right direction.

“The issue is, does the behavior interfere with good order and discipline in the military? I think it’s headed very happily toward the direction of saying that the private consenting adult behavior of individuals that does not involve damage to the military chain of command, military environment, ought not to be criminalized,” Wilson said.

It’s not just the GLBT community that opposes “Don’t Ask, Don’t Tell”. Polls conducted by the University of Pennsylvania’s National Annenberg Election Survey suggest widespread public support of lifting the ban against gays in the military, SLDN said in an October 2004 statement. The Annenberg poll reported 50 percent of junior enlisted service members say that gays, lesbians and bisexuals should be allowed to serve openly in the military. Among civilians, the poll showed 67 percent in favor.

Curren mentioned a potential landmark case in the courts right now, Cook v. Rumsfeld, filed on Dec. 6 in U.S. District Court for the District of Massachusetts in Boston, and said SLDN is optimistic about the outcome. The suit involves 12 former lesbian and gay servicemembers who are seeking to be reinstated in the Armed Forces. All of them had been discharged under “Don’t Ask, Don’t Tell”.

SLDN believes the Lawrence decision provides a basis for their argument in Cook v. Rumsfeld since it counters the military’s legal and moral rationale for denying gay, lesbian and bisexual service members the right to serve openly. They argued the protected rights of privacy, equal protection, due process and free speech under the U.S. Constitution are also violated by “Don’t’ Ask, Don’t Tell”.