I don't know but I've been told...

Photographer: Paul J. Richards

Adultery Is None of the Military's Business

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Is the military’s law making adultery a crime unconstitutional? So says a colonel who’s been charged with violating it. His motives aren’t great -- he’s trying to deflect attention from more serious charges, including rape. But he may be right. The law arguably discriminates by criminalizing only heterosexual adultery. And even if that vestigial aspect of the law could be fixed, there’s another problem: the anti-adultery law violates the fundamental right of privacy, which should extend even to armed-forces personnel, whose constitutional rights are limited by military necessity.

The issue has arisen in the context of a court-martial against U.S. Air Force Colonel Marcus Caughey. He’s been charged with rape, assault, taking a sexual selfie -- and six counts of adultery. Under the Uniform Code of Military Justice, which governs uniformed personnel, adultery is a crime. Military prosecutors typically add the charge when a defendant is accused of other crimes. It gives them extra leverage, but also provides room for the factfinder, whether judge or jury, to reach a compromise verdict and find the defendant guilty of adultery even if it doesn’t find him guilty of rape or assault.

Caughey’s lawyers want to get rid of the adultery charge -- and, presumably, to change the narrative of the trial by refocusing attention on something other than the accusations against their client. It’s a creative argument.

The way the military adultery law works is a bit tricky, so bear with me, because it matters. Article 134 of UCMJ makes it a crime for a member of the armed forces to “prejudice good order and discipline” or “bring discredit upon the armed forces.”

That general language is then interpreted by the military to include various crimes including adultery. The military defines adultery as “sexual intercourse” when the parties are not married to each other and at least one of them is married to someone else.

But because it’s a relic of an earlier era, military law treats only heterosexual intercourse as qualifying.

That’s because in the bad old days, homosexual conduct was defined separately as “sodomy,” which was a crime distinct from adultery. That definition is still on the books, even though it would be unenforceable today.

Caughey’s lawyers say limiting the crime of adultery to heterosexuals makes the law unconstitutional because it discriminates against straight people relative to gay people.

You might find this argument laughable -- after all, the law is set up the way it is precisely because of the military’s history of anti-gay discrimination. It’s just an accident of changed constitutional circumstances that today, you can be charged with adultery only by having intercourse with someone of the opposite sex.

Or you might make the technical point that the law could in fact punish a person married to someone of the same sex if he or she had intercourse with someone of the opposite sex.

But Caughey’s argument isn’t ridiculous. There’s a long history of the courts striking down laws that discriminate on the basis of sex because they reinforce stereotypes. Arguably, this law is just as bad. It’s possible to imagine a court rejecting it.

There’s a simple remedy, however. The military could solve the problem by criminalizing all adulterous sex, whether straight or gay. And it wouldn’t require amending the UCMJ, just reinterpreting it officially.

Indeed, I can easily imagine a military court holding that, in the light of Supreme Court decisions legalizing gay sex and gay marriage, Article 134 of the UCMJ necessarily must be interpreted to extend to straight and gay people equally.

If that’s right, Caughey’s argument should lose, since the discrimination of which he complains doesn’t exist, legally speaking.

But there’s another constitutional problem, in my view more serious than the one Caughey’s lawyers raised.

The adultery prohibition violates the fundamental right to privacy, regardless of whom it covers.

In the landmark 2003 decision of Lawrence v. Texas, the court struck down laws prohibiting gay sex. Justice Anthony Kennedy’s opinion didn’t rest on equality. Instead he wrote that the right to have sex with a consenting person of one’s choice was “central to personal dignity and autonomy.”

Logically, the fundamental right to enter into a sexual relationship should apply even if one or both of the parties is married to someone else. It’s true that the criminalization of adultery has a long history. But so did the criminalization of sodomy, which the Lawrence decision struck down.

It could be argued that adultery is different since it isn’t victimless and therefore doesn’t implicate the right to autonomy in the same way. But that’s too facile. Consider a couple who is married but separated, or a situation where one party is making divorce difficult for the other. Can it really be the case that people in such a marriage lack the fundamental right to form sexual relationships with other people?

Some 16 states still criminalize adultery. But those laws are, I think, unconstitutional under the Lawrence precedent. But because they are rarely or never enforced, they are unlikely to come to court.

That leaves the military’s adultery ban, which is enforced, as the logical subject of a constitutional challenge.

The military would no doubt argue that its special interests in discipline should be treated deferentially by the courts, and that adultery by uniformed personnel is especially harmful.

But those are weak and unconvincing arguments, which would be rightfully rejected in the context of gay sex. Private, consensual sexual behavior should be treated as a fundamental right that applies even to military personnel. The military doesn’t need to regulate people’s consensual sex lives to enforce discipline.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net