Dec. 14, 2011 – 11:30 p.m.

Gay Servicemembers Face Contradictions in Statute

Gays and lesbians have been allowed to serve openly in the armed forces since September, but gay and lesbian sex will continue to be against military law.

Language that would have repealed prohibitions of sodomy and bestiality from the Uniform Code of Military Justice was dropped from the final version of the fiscal 2012 defense authorization bill (HR 1540) completed this week by a conference committee and adopted Wednesday evening by the House. The repeal language had been added to the Senate version of the bill by Armed Services Chairman Carl Levin, D-Mich.

With the existing ban — Article 125 of the code — left in place, soldiers can be prosecuted for engaging in sodomy. Although seldom enforced, the code section creates a double standard for gay and lesbian soldiers, whose sexual relationships are, by the military’s definition, always considered sodomy. Only certain sex acts between heterosexual soldiers are considered sodomy.

Gay rights activists criticized the move not to repeal the ban. “It’s an antiquated provision that’s outlived its usefulness, and the time has long passed that it should have been taken out,” said Fred Sainz, a Human Rights Campaign spokesman. “This is yet another indication that Washington is often the last to adopt social change.”

Commissions on military justice recommended a repeal of the sodomy ban in 2001 and in 2009, concluding that it was out of step with modern sexual norms. The rule, for example, bans oral and anal sex involving heterosexual as well as gay soldiers.

Some social conservatives said the defense authorization negotiators did the right thing. Tony Perkins, president of the Family Research Council, called the removal of the Levin language an “incredible victory on an issue that other conservative organizations refused to fight.”

For practical purposes, the rule’s preservation means gay and lesbian soldiers could be prosecuted for sexual relations with another soldier, or with non-military partners if the encounters occur on a military base.

A 2003 Supreme Court decision, Lawrence v. Texas, barred state sodomy prosecutions, and a 2004 decision by the Court of Appeals for the Armed Forces found that the Lawrence decision applied to the military. So gay and lesbian soldiers cannot be prosecuted for sexual activity that has no connection with their service.

Dropping the Levin language was part of a broader effort to remove controversial language relating to gays and lesbians from the defense policy bill.

In a victory for gay rights activists, conferees nixed a House-passed provision sponsored by Todd Akin, R-Mo., that would have barred military chaplains from performing same-sex weddings on bases in states where such weddings otherwise are legal. Under current Pentagon rules, chaplains may perform those ceremonies but are not required to do so.