SANTA BARBARA, CA, October 20, 2009 - The military’s prohibition of consensual sodomy invites arbitrary enforcement and may be unconstitutional according to a report released by the Commission on Military Justice today. The Commission recommends repealing the ban.
The report was sponsored by the National Institute of Military Justice and a committee of the American Bar Association, and was authored by a distinguished panel of judges, scholars and military personnel. It noted that military laws already provide an "adequate basis to prosecute any criminal sexual misconduct," rendering the sodomy ban unnecessary.
Proponents of "don't ask, don't tell" often point to the sodomy ban as justification for excluding gay and lesbian service members. But scholars dispute the soundness of that rationale. According to Dr. Nathaniel Frank, “public opinion about private, consensual sexual conduct has shifted dramatically since the military sodomy ban was written into law almost a hundred years ago. To say that gays should be banned from the military for this outdated reason makes no sense." Frank is Senior Research Fellow at the Palm Center and author of Unfriendly Fire, a history of the “don’t ask, don’t tell” policy.
In 2003, the late Professor Charles Moskos signed an amicus brief which stated that the military’s ban on sodomy is not necessary for preserving unit cohesion or military readiness. Moskos was widely credited as the author of the “don’t ask, don’t tell” policy.
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