'Don't Ask, Don't Tell' May Go, But Military's Don't-Do-Sodomy Law Still in Place

October 21, 2010 - 8:58 AM

Robert Gates, gay ban, gays in military, don't ask, don't tell

Defense Secretary Robert Gates takes questions from reporter during a briefing at the Pentagon on Monday, Feb. 1, 2010. (AP Photo/Kevin Wolf)

(CNSNews.com) – Regardless of the recent legal wrangling over homosexuals serving in the military, sodomy remains outlawed under the Uniform Code of Military Justice (UCMJ).

“Any person subject to this chapter [of the UCMJ] who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy,” Article 125 of the UCMJ states. “Any person found guilty of sodomy shall be punished as a court-martial may direct.”

The provision may pose further problems for the military in light of Defense Secretary Robert Gates’ announcement Tuesday that he had ordered the military to accept applications from openly homosexual applicants. Gates acted after U.S. District Judge Virginia Phillips on October 12 ordered the government to immediately stop enforcing the Clinton-era policy known as Don’t Ask, Don’t Tell, a move that briefly allowed open homosexuals to serve in the military.

On Wednesday, eight days later, a federal appeals court granted the Obama administration’s request to temporarily block Judge Phillips’ order, so the policy banning open homosexuality in the military is in limbo at the moment.

Each branch of the military also prohibits fraternization between individual service members.  The regulations deal with relationships between members of different ranks. Romantic or other relationships that could negatively affect the military chain of command are prohibited. Marriage and certain types of business relationships are exempted from the fraternization ban.

The fraternization regulations say nothing about the genders of the service members involved, meaning that if homosexuals eventually are allowed to serve openly in the military, they would still be barred from fraternizing with one another, under both the UCMJ prohibition on sodomy and the individual branches’ prohibition on fraternization.

The military is less specific on fraternization among members of the same rank. With the exception of the Navy – which prohibits relationships between sailors of the same rank – military policy does not specifically prohibit fraternization between servicemembers of the same rank, unless those relationships negatively impact “good order and discipline.” Such a determination is made by a servicemember’s commanding officer.

Article 134 of the UCMJ, known as the General Article, is a catch-all for punishable conduct in the military. It reads as follows:

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court."