Now that DADT is over, LBGQ people can serve openly in the military, but until very recently, military law banned consensual intimate activity between people of the same sex. That all changed just days before Christmas, when the Senate successfully passed the National Defense Authorization Act…and quietly struck down the section of the Uniform Code of Military Justice (UCMJ) barring “unnatural carnal copulation.” The section in question, Article 125, still bans “forcible sodomy” and bestiality, but no longer forbids private consensual activity between two adults of the same sex, as long as it doesn’t violate fraternization regulations.
This marks a huge victory for the rights of LGBQ people in the military. Whether or not Article 125 was enforced against servicemembers, it was offensive. By comparing homosexuality to bestiality, the UCMJ created a hostile environment for servicemembers and reiterated the common social attitude that homosexuality is unnatural and suspect. Leaving it in the UCMJ was like a slap in the face, especially after the decision to nullify the controversial and discriminatory Don’t Ask, Don’t Tell policy.
Critically, the reform was also needed to reform military law in order to align it more closely with civilian law. Historically, the UCMJ and civilian courts have often been very different, especially on social issues, but the modern military has worked to change this, creating military law that reflects more general civilian attitudes as well as Supreme Court decisions, laws and other legal precedents. While military courts and cases are still handled very differently than those of civilians, leaving antiquated articles like this one in place kept the UCMJ out of pace with society, reality and current legal thought.
Leaving it in the UCMJ also created an opportunity to discriminate against servicemembers. Those who had served honorably and responsibly could potentially be brought to military courts over consenting relationships with people of the same sex. If found guilty, they could face penalties such as dishonorable discharges, a reduction in rank (and pay), and other potentially serious punishments. Article 125 created an environment of fear for those in consensual LGBQ relationships in the military, as the article could potentially be used in court to retaliate against or punish them.
Senators Mark Udall, Jeanne Shaheen and Kirsten Gillibrand played an instrumental role in altering the language of Article 125 in a way that satisfied all parties and successfully pushing this alteration to the UCMJ through. In an amazing reflection of changing social attitudes on LBGQ servicemembers, the changes to Article 125 attracted little commentary or opposition, even from conservative members of the Senate, a marked shift from the outrage of legislators the last time Democrats attempted this important act of judicial reform for servicemembers.
2013 has been a landmark year for gay rights — this just allowed the year to go out with a bang.
Photo credit: Elvert Barnes.