WASHINGTON – According to military law attorneys, President Bush must issue an executive order for approval to allow the Pentagon to preserve its policy of criminalizing consensual sodomy among military service members.Since 2003, the Department of Defense has been deliberating over changing the sodomy law, since the U.S. Supreme Court struck down sodomy laws on the grounds that they infringe on the constitutional rights of adults to engage in private, consensual sex. The military used the sodomy law to justify not allowing gay men and lesbians to serve openly.

The Supreme Court ruling, which was hailed by gay rights attorneys, should apply equally to the military and civilian population, legal experts have argued.

The DOD revealed its strategy for maintaining its sodomy prohibition in the face of the Lawrence vs. Texas decision on April 7, by sending Congress a proposed amendment to the Uniform Code of Military Justice, the statute that contains the military’s sodomy law. The DOD also informed Congress of its proposed change to the Manual for Courts-Martial, which has been the set of regulations used by the DOD to implement different provisions in the Uniform Code of Military Justice, UCMJ.

Initially, gay activits praised the proposed changes after the New York Times reported last week that prohibition of consensual sodomy would be removed from the UCMJ. A DOD spokesperson quickly contradicted the report and confirmed that the DOD intends to retain and uphold the regulation, by moving it from one section of the UCMJ to another. The change would make consensual sodomy a regulatory offense in the court martial manual.

A gay litigation group called the Servicemembers Legal Defense Network, denounced the changes as a “shell game” arguing that would be stand up to the Lawrence decision. SLDN mentioned that at least two military appeals court rulings have cited the Lawrence decision: One military sodomy conviction was overturned last December, and another in August 2004 that prohibits the military from enforcing its sodomy law.

“Pentagon leaders cannot run and hide from the Constitution,” said Sharra Greer, SLDN’s director of policy and law.

President Clinton issued two separate executive orders which changed the DOD Manual for Courts-Martial in ways that supported gay rights. The changes included a new provision to prosecute hate crimes, and the other prevents the military from investigating service members for being gay.

Tara Andringa, a spokesperson for Senator Carl Levin (D-Mich.), the ranking minority member of the Senate Armed Services Committee, commented on the widely held belief among Capitol Hill analysts that Bush will issue the executive order to retain the military’s sodomy prohibition.

Gay rights attorneys maintain the outcome of the military’s sodomy law is significant because it has been used as the key reason for restricting gays from serving openly under the Pentagon’s “Don’t Ask, Don’t Tell” policy. Instilled by Congress and President Clinton in 1993, the “Don’t Ask, Don’t Tell” policy maintains that gays are unsuitable for military service because they engage in conduct considered illegal under the UCMJ’s sodomy law.