Prosecuting Adultery Under the Uniform Code of Military Justice After Lawrence V. Texas

Abstract

In Lawrence v. Texas, the U.S. Supreme Court held that a state cannot exact criminal sanctions on adults engaged in consensual sexual conduct without it violating the individual's liberty interest under the Due Process Clause. The Court explicitly excluded any situation where coercion or unequal power led to the sexual conduct or where minors are involved. The implication for laws beyond those prohibiting homosexual sodomy is that any statute or regulation designed to enforce the views of a majority as to what constitutes good moral behavior is constitutionally circumspect. The Lawrence decision questions whether the U.S. military's enforcement of adultery under the Uniform Code of Military Justice (UCMJ) is now constitutionally circumspect. The application of Lawrence was first raised in a sodomy case in United States v. Marcum. In a fact specific opinion, the court declined to apply Lawrence. The Marcum decision has subsequently been read by lower military courts as mandating a case by case evaluation of adultery and sodomy prosecutions under the UCMJ pursuant to Lawrence. This article argues that this should not be the case. Marcum should be read for what it is: a side step of the issue presented in Lawrence. Accordingly, in light of the Supreme Court's decision in Lawrence v. Texas, prosecuting a member of the United States Armed Forces for adultery, in and of itself, is constitutionally circumspect.