Thursday, November 12, 2015

Lawrence v. Texas: dotting the "I's" on the law; what about Bowers? what about the UCMJ 125?

Here’s an old point of law, worth recalling.  Recall that in 2003, the Supreme Court, in Lawrence v. Texas, struck down 21.06 in Texas, a sodomy law that had been intended to target only same-sex activity.  Did the ruling also apply to previous sodomy laws that had applied to all couplings, including opposite-sex?  Remember, in 1986, the Supreme Court had held, 5-4, that the Georgia law (in Bowers v. Hardwick) had been constitutional, although a district judge in Dallas (in Baker v. Wade) had issued a ruling in 1982 that would have invalidated it (but was vacated in 1985 by the Fifth Circuit).   It’s well not to forget that the Texas legislature considered “strengthening” the sodomy law in 1983 in the early days of the AIDS crisis (before there was a test or HIV had even been identified), while I was living in Dallas and fighting my own way with underground letters.

The answer is, yes, it did invalidate laws like Georgia’s (or, for that matter, Virginia’s “crimes against nature” laws), because the Supreme Court reversed itself and now regarded private consenting adult sexual conduct as protected by substantive due process, under the 14th Amendment (and the incorporation doctrine).  It reversed language (quite explicit) in the 1986 ruling that had previously denied a fundamental right to sexual privacy. Wikipedia explains it here.  In a few states, including Virginia and Alabama, attempts to remove archaic laws are still blocked.

That brings up the issue of UCMJ 125, sodomy, in the Uniform Code of Military Justice.  I remember seeing this spelled out on a placard on a ship in my “visit” to Norfolk back in May 1993.  There was a case, US v. Marcum (link) where the Supreme Court did not take up a decision by the Court of Military Appeals to overturn it after Lawrence.

I found a discussion board (which does not appear to be official) where there is discussion of a bill to repeal, in the comments, here.

There is some confusion about this online, and Outserve-SLDN’s link seems to have been removed.  MSNBC, however, has a link on June 20, 2013, by Adam Serwer, indicating that USMJ-125 is still technically on the books, and even titles the article “Why the military still bans sodomy”.  NBC writes that there are some pretty obvious legal contradictions with the law being on the books, that the GOP resists removing it, and that it still keeps a tiny trace of discrimination against gay men and lesbians on the books.

A lot of people never learned a lesson from Alan Turing, who saved us all.

No comments: