Posted by Eugene Volokh:
About Time:
The [1]New York Times reports:
The office of the general counsel at the Pentagon has proposed
decriminalizing consensual sodomy among adults . . . .
Under Article 125 of the Uniform Code of Military Justice, it is a
crime to engage in "unnatural carnal copulation with another person
of the same or opposite sex," even with mutual consent.
The changes proposed by the Pentagon's lawyers would narrow the
definition to prohibit acts of sodomy with a person under age 16 or
acts "committed by force." . . .
While the change would not alter the military's policy against gay
men and lesbians in uniform, advocates for gay rights said that
recent court decisions and the proposed changes to the military
code could have broader implications for gay men and lesbians in
the armed forces. . . .
I'm quite skeptical of the arguments against allowing gays in the
armed forces, but at least there's a plausible -- though in my view on
balance unpersuasive -- justification for that policy: the concern
that homosexual relationships may interfere with discipline and
cohesion in all-male or nearly all-male units. (I don't see how that
argument could justify the exclusion of lesbians, but that's a matter
for another day.)
What plausible relation, though, could there possibly be for banning
nongenital heterosexual sex -- including oral sex, which the
overwhelming majority of heterosexuals engage in -- among
servicemembers? How does banning our soldiers from having oral sex
make them a more effective fighting force? How is the rule anything
other than a waste of time, money, and military resources if enforced,
and anything other than a mockery if unenforced?
The only explanation I've ever heard for such rules is that they make
it easier to prosecute nonconsensual sex when the evidence of lack of
consent is weak. But that strikes me as a lousy justification, a
recipe for injustice against perfectly innocent, decent people who
happen to get on the wrong side of a prosecutor or a commanding
officer. And it seems to me that in the military even more than in
civilian life, the rules should be enforced, and rules that we aren't
prepared to enforce (at least in the normal cases, setting aside the
exceptional ones) shouldn't be rules.
Finally, I realize that the decriminalization of nongenital sex would
indeed eliminate one argument against excluding practicing
homosexuals. But if the real reason for the exclusion is the concern
about unit cohension, then that's what the argument should be about --
not the practicing homosexuals' violation of a rule that's pointless
and that's routinely violated by most heterosexuals.
References
1. http://www.nytimes.com/2005/04/21/politics/21sodomy.html
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