The language of love
So the headline on this Reuter’s story says, “US Military Sodomy Ban Upheld in Narrow Ruling-NYT.” Okay. But then the article says:
In a limited ruling, the highest U.S. military court said that under certain circumstances, the military’s ban on sodomy was constitutional, the New York Times said on Tuesday.
…
The case in question, United States v. Marcum, concerned the conviction four years ago of former Air Force Sgt. Eric Marcum on charges that included consensual sodomy, for his having sex with men under his supervision, the newspaper said.
He is on parole after first being sentenced to 10 years in prison, a term later cut to six years.
Marcum, a linguist at Offutt Air Force Base in Nebraska, appealed the conviction on the consensual sodomy charge, saying the Lawrence case invalidated it.
The five judges gave considerable weight to military regulations barring sexual relationships between superiors and subordinates in the same command.
They said several subordinate airmen testified they engaged in consensual and nonconsensual sexual activity with Marcum, including one who said Marcum might have taken advantage of him. On that basis, the court said the Lawrence decision did not protect Marcum.
That “men under his supervision” puts a slightly different cast on things (“under certain circumstances”!), does it not? I’m not quite sure what the “considerable weight” part is; if you’re not supposed to be banging your subordinates, that seems to me to settle it, vociferously committed to gay rights though I am. Emotional upheaval and conflicts of loyalty probably aren’t as potentially disastrous in the linguistics department as they are closer to combat; but if Marcum’s people can argue that Lawrence v. Texas invalidates the ban on homosexual contact between supervisor and supervised, why can’t some straight Lieutenant who’s screwing a woman underling (so to speak) get out of punishment by pointing out that heterosexual sex is legal nationwide?
I really, seriously hope I’m being an idiot and missing something here. I did look for the NYT story to see whether it clarified things a bit; unfortunately, it doesn’t seem to be on-line. Past references to the case don’t clarify things much for non-lawyer me. Maybe he wasn’t originally tried on the supervisor-subordinate charge because the same-sex charge would so plainly hold up, making it not worth the bother?
Added on 26 August: I’d managed to miss this on 365gay
the other day; it makes the reasoning behind the ruling seem clearer.