National
Gay sex remains a crime under military law
‘Don’t Ask, Don’t Tell’ repeal leaves sodomy ban unchanged
Aubrey Sarvis, executive director of SLDN, said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal of ‘Don’t Ask, Don’t Tell.’ (Washington Blade file photo by Michael Key)
Much of the nation was riveted over the drama surrounding the congressional vote last month to repeal the “Don’t Ask, Don’t Tell” law barring gays from serving openly in the military.
But in a little-noticed development, Capitol Hill observers say Congress is in no mood to take a follow-up action recommended by Pentagon officials — the repeal of a longstanding military law that classifies consensual sodomy among both gay and straight service members as a crime.
Gay rights attorneys and experts in military law say the sodomy law provision known as Article 125 of the Uniform Code of Military Justice has been rarely enforced in recent years in cases where sexual activity has been consensual and “fraternization” between officers and lower ranking members has not be a factor.
And the experts say a 2004 decision known as U.S. v. Marcum by the U.S. Court of Appeals for the Armed Services placed limits on the enforcement of Article 125 based on a U.S. Supreme Court decision one year earlier that declared state sodomy laws unconstitutional.
Yet because the military court did not overturn Article 125, its characterization of gay sex as criminal acts punishable by court martial will remain on the books until Congress repeals the statute, leaving in place what some activists say is an unfair stigma associated with gays and lesbians in the military.
Gay rights attorneys have said the Supreme Court could overturn the military sodomy law by affirming that the Lawrence v. Texas decision fully covers the military. But it could take years before a new military case reaches the high court.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which has led efforts to repeal “Don’t Ask, Don’t Tell,” said his group’s top priority this year is to secure the certification by President Obama and military leaders for completing repeal.
The repeal law passed by Congress and signed by President Obama in December doesn’t allow full repeal to take effect until the president, the Secretary of Defense and chair of the military’s Joint Chiefs of Staff determine troops and commanders are fully prepared for the change.
“So I would say no, that our top priority for this Congress is not the repeal of Article 125,” Sarvis told the Blade. “Do I think it should be repealed? Yes. Has SLDN been working over the last several years for repeal? Yes.”
Among those agreeing with Sarvis’ assessment is gay U.S. Rep. Barney Frank (D-Mass.).
“I’m skeptical and frankly at this point I don’t think it’s a good idea to press ahead with that one,” Frank said Tuesday, noting that gay rights opponents would likely use a debate on sodomy repeal in the military to push “hidden agendas.”
Sarvis summarized the views of other LGBT advocates when he said the Republican-controlled House would almost certainly refuse to even consider a bill to repeal Article 125. He said the need for pushing other LGBT-related issues in the military and other areas outweighs expending resources on Article 125.
Although Article 125 applies to gays and straights alike, gay rights advocates have said military authorities used it to target gay and lesbian service members in the past, especially in the years prior to “Don’t Ask, Don’t Tell.” If it remains on the books, some wonder whether a future president less supportive of LGBT rights might reinstate its full enforcement.
Longtime D.C. gay rights leader Frank Kameny, who assisted gay service members in the 1970s and 1980s, long before SLDN and other LGBT rights groups existed, said military investigators waged what he and other activists called “witch hunts” to identify and discharge gays on grounds that they violated Article 125.
Under Article 125, “any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense,” the article states.
Under the 2008 version of the military’s official manual for courts martial, unnatural carnal copulation under Article 125 is defined as a person taking into his or her “mouth or anus the sexual organ of another person or of an animal…or to have carnal copulation in any opening of the body, except the sexual parts, with another person.”
Sarvis and Aaron Belkin, director of the Palm Center, an arm of the University of Southern California that studies issues related to gays in the military, each said they know of almost no cases in recent times where service members, gay or straight, have been prosecuted under Article 125 for engaging in consensual sex in private.
The two noted that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.
The latter category of cases, known as fraternization, is considered a strong breach of military rules because sexual relations between an officer and a subordinate are believed to harm the system of order and discipline deemed important in the military.
Bridget Wilson, a San Diego attorney in private practice who has represented gay and lesbian service members for more than 20 years, said she agrees with Sarvis and Belkin’s assessment about the infrequency of Article 125 enforcement in recent years for consensual sex.
But Wilson said the pressure that “Don’t Ask, Don’t Tell” has placed on gay and lesbian service members to conceal their sexual orientation during the 17 years it has been in effect has led to many cases where service members “fabricate” a non-consenting allegation to protect themselves from being thrown out of the service.
If a service member ensnared in an investigation over alleged acts of sodomy admitted to having consented to such acts, Wilson said, it was equivalent to an admission to being gay and grounds for an automatic discharge under “Don’t Ask, Don’t Tell.”
“What I do see is false accusations of assaults,” she said in describing some cases faced by her clients. “You get a lot of, ‘I was so drunk last night I don’t remember a thing’ after he gets busted for having sex with another man.”
According to Wilson, some military prosecutors have interpreted impairment on the part of a service member due to alcohol consumption as a sign that the service member could not give true “consent” to a sexual act.
“So the problem with ‘I was so drunk that I don’t remember a thing’ is it could convert from [consensual] sodomy into forced sodomy with very serious consequences in the criminal courts,” she said.
With the repeal of “Don’t Ask, Don’t Tell,” Wilson said she is hopeful that the perceived need by frightened service members to fabricate a non-consenting sex allegation to avoid being discharged from the service will become a thing of the past.
She said military authorities notoriously handled similar cases with straight couples engaging in alleged sodomy differently because there is no “straight” version of “Don’t Ask, Don’t Tell.”
“They might find themselves punished by losing a stripe or losing leave time—that sort of thing,” Wilson said. “For my same-sex clients, before ‘Don’t Ask, Don’t Tell’ goes away, they’re out. They’re gone. And they’re probably facing administrative separation with an other-than-honorable discharge.”
In its widely publicized Nov. 30 report, the Pentagon’s Joint Service’s Committee consisting of top military leaders — which recommended the repeal of ‘Don’t Ask, Don’t Tell’ — also called on Congress to repeal Article 125.
The committee report points to both the U.S. v. Marcum decision, which limits the enforcement of Article 125, and the Lawrence v. Texas ruling that declared state sodomy laws unconstitutional as they pertain to consenting adults in the privacy of the home.
“In light of these decisions, we recommend that Article 125 be repealed or amended to the extent it prohibits consensual sodomy between adults, regardless of sexual orientation,” the report says.
“The other prohibitions considered punishable under Article 125, including forcible sodomy, sodomy with minors and sodomy that is demonstrated to be ‘service discrediting’ (i.e., in public or between a superior and subordinate), should remain on the books,” the report says.
Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said HRC favors a prompt repeal by Congress of Article 125. He said the group also disagrees with the military court decision upholding Article 125 under some circumstances and feels the Supreme Court’s Lawrence decision, which overturned state sodomy laws, should also cover the military in its entirety.
“HRC expects that post-DADT repeal, Article 125 would only be used in circumstances involving non-consensual acts, so there should be no negative impact on gay and lesbian service members,” Cole-Schwartz said.
Former Army Lt. Dan Choi, who emerged as one of the nation’s most visible opponents of “Don’t Ask, Don’t Tell” after being discharged under the statute, said he recognizes that Congress is unlikely to repeal Article 125 any time soon. But he criticized SLDN and other LGBT groups for not being more aggressive in pushing for its repeal at the present time.
“Leaders [should] do what is important and difficult and lead,” he said.
Bryan Thomas, a spokesperson for Sen. Carl Levin (D-Mich.), chair of the Senate Armed Services Committee, said Senate Democratic leaders were reviewing the Pentagon report’s call for Congress to repeal Article 125. He said a Senate repeal measure would most likely be introduced as an amendment to the National Defense Authorization Bill, but he had no further details by press time on whether or when such a measure would be introduced.
“We expect the administration to submit a legislative proposal for repeal or revision of Article 125 of the UCMJ, and such a proposal would certainly be carefully considered by the committee,” Thomas said.
Spokespersons for Republican and Democratic leaders in the House and Republican leaders in the Senate could not be immediately reached.
U.S. Federal Courts
Judge temporarily blocks executive orders targeting LGBTQ, HIV groups
Lambda Legal filed the lawsuit in federal court
A federal judge on Monday blocked the enforcement of three of President Donald Trump’s executive orders that would have threatened to defund nonprofit organizations providing health care and services for LGBTQ people and those living with HIV.
The preliminary injunction was awarded by Judge Jon Tigar of the U.S. District Court for the Northern District of California in a case, San Francisco AIDS Foundation v. Trump, filed by Lambda Legal and eight other organizations.
Implementation of the executive orders — two aimed at diversity, equity, and inclusion along with one targeting the transgender community — will be halted pending the outcome of the litigation challenging them.
“This is a critical win — not only for the nine organizations we represent, but for LGBTQ communities and people living with HIV across the country,” said Jose Abrigo, Lambda Legal’s HIV Project director and senior counsel on the case.
“The court blocked anti-equity and anti-LGBTQ executive orders that seek to erase transgender people from public life, dismantle DEI efforts, and silence nonprofits delivering life-saving services,” Abrigo said. “Today’s ruling acknowledges the immense harm these policies inflict on these organizations and the people they serve and stops Trump’s orders in their tracks.”
Tigar wrote, in his 52-page decision, “While the Executive requires some degree of freedom to implement its political agenda, it is still bound by the constitution.”
“And even in the context of federal subsidies, it cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous,” he said.
Without the preliminary injunction, the judge wrote, “Plaintiffs face the imminent loss of federal funding critical to their ability to provide lifesaving healthcare and support services to marginalized LGBTQ populations,” a loss that “not only threatens the survival of critical programs but also forces plaintiffs to choose between their constitutional rights and their continued existence.”
The organizations in the lawsuit are located in California (San Francisco AIDS Foundation, Los Angeles LGBT Center, GLBT Historical Society, and San Francisco Community Health Center), Arizona (Prisma Community Care), New York (The NYC LGBT Community Center), Pennsylvania (Bradbury-Sullivan Community Center), Maryland (Baltimore Safe Haven), and Wisconsin (FORGE).
U.S. Supreme Court
Activists rally for Andry Hernández Romero in front of Supreme Court
Gay asylum seeker ‘forcibly deported’ to El Salvador, described as political prisoner
More than 200 people gathered in front of the U.S. Supreme Court on Friday and demanded the Trump-Vance administration return to the U.S. a gay Venezuelan asylum seeker who it “forcibly disappeared” to El Salvador.
Lindsay Toczylowski, president of the Immigrant Defenders Law Center, a Los Angeles-based organization that represents Andry Hernández Romero, is among those who spoke alongside U.S. Rep. Mark Takano (D-Calif.) and Human Rights Campaign Campaigns and Communications Vice President Jonathan Lovitz. Sarah Longwell of the Bulwark, Pod Save America’s Jon Lovett, and Tim Miller are among those who also participated in the rally.
“Andry is a son, a brother. He’s an actor, a makeup artist,” said Toczylowski. “He is a gay man who fled Venezuela because it was not safe for him to live there as his authentic self.”
(Video by Michael K. Lavers)
The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.”
President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.” The Trump-Vance administration subsequently “forcibly removed” Hernández and hundreds of other Venezuelans to El Salvador.
Toczylowski said she believes Hernández remains at El Salvador’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. Toczylowski also disputed claims that Hernández is a Tren de Aragua member.
“Andry fled persecution in Venezuela and came to the U.S. to seek protection. He has no criminal history. He is not a member of the Tren de Aragua gang. Yet because of his crown tattoos, we believe at this moment that he sits in a torture prison, a gulag, in El Salvador,” said Toczylowski. “I say we believe because we have not had any proof of life for him since the day he was put on a U.S. government-funded plane and forcibly disappeared to El Salvador.”
“Andry is not alone,” she added.
Takano noted the federal government sent his parents, grandparents, and other Japanese Americans to internment camps during World War II under the Alien Enemies Act. The gay California Democrat also described Hernández as “a political prisoner, denied basic rights under a law that should have stayed in the past.”
“He is not a case number,” said Takano. “He is a person.”
Hernández had been pursuing his asylum case while at the Otay Mesa Detention Center in San Diego.
A hearing had been scheduled to take place on May 30, but an immigration judge the day before dismissed his case. Immigrant Defenders Law Center has said it will appeal the decision to the Board of Immigration Appeals, which the Justice Department oversees.
“We will not stop fighting for Andry, and I know neither will you,” said Toczylowski.
Friday’s rally took place hours after Attorney General Pam Bondi said Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador, had returned to the U.S. Abrego will face federal human trafficking charges in Tennessee.
National
A husband’s story: Michael Carroll reflects on life with Edmund White
Iconic author died this week; ‘no sunnier human in the world’
Unlike most gay men of my generation, I’ve only been to Fire Island twice. Even so, the memory of my first visit has never left me. The scenery was lovely, and the boys were sublime — but what stood out wasn’t the beach or the parties. It was a quiet afternoon spent sipping gin and tonics in a mid-century modern cottage tucked away from the sand and sun.
Despite Fire Island’s reputation for hedonism, our meeting was more accident than escapade. Michael Carroll — a Facebook friend I’d chatted with but never met — mentioned that he and his husband, Ed, would be there that weekend, too. We agreed to meet for a drink. On a whim, I checked his profile and froze. Ed was author Edmund White.
I packed a signed copy of Carroll’s “Little Reef” and a dog-eared hardback of “A Boy’s Own Story,” its spine nearly broken from rereads. I was excited to meet both men and talk about writing, even briefly.
Yesterday, I woke to the news that Ed had passed away. Ironically, my first thought was of Michael.
This week, tributes to Edmund White are everywhere — rightly celebrating his towering legacy as a novelist, essayist, and cultural icon. I’ve read all of his books, and I could never do justice to the scope of a career that defined and chronicled queer life for more than half a century. I’ll leave that to better-prepared journalists.
But in those many memorials, I’ve noticed something missing. When Michael Carroll is mentioned, it’s usually just a passing reference: “White’s partner of thirty years, twenty-five years his junior.” And yet, in the brief time I spent with this couple on Fire Island, it was clear to me that Michael was more than a footnote — he was Ed’s anchor, editor, companion, and champion. He was the one who knew his husband best.
They met in 1995 after Michael wrote Ed a fan letter to tell him he was coming to Paris. “He’d lost the great love of his life a year before,” Michael told me. “In one way, I filled a space. Understand, I worshiped this man and still do.”
When I asked whether there was a version of Ed only he knew, Michael answered without hesitation: “No sunnier human in the world, obvious to us and to people who’ve only just or never met him. No dark side. Psychology had helped erase that, I think, or buffed it smooth.”
Despite the age difference and divergent career arcs, their relationship was intellectually and emotionally symbiotic. “He made me want to be elegant and brainy; I didn’t quite reach that, so it led me to a slightly pastel minimalism,” Michael said. “He made me question my received ideas. He set me free to have sex with whoever I wanted. He vouchsafed my moods when they didn’t wobble off axis. Ultimately, I encouraged him to write more minimalistically, keep up the emotional complexity, and sleep with anyone he wanted to — partly because I wanted to do that too.”
Fully open, it was a committed relationship that defied conventional categories. Ed once described it as “probably like an 18th-century marriage in France.” Michael elaborated: “It means marriage with strong emotion — or at least a tolerance for one another — but no sex; sex with others. I think.”
That freedom, though, was always anchored in deep devotion and care — and a mutual understanding that went far beyond art, philosophy, or sex. “He believed in freedom and desire,” Michael said, “and the two’s relationship.”
When I asked what all the essays and articles hadn’t yet captured, Michael paused. “Maybe that his writing was tightly knotted, but that his true personality was vulnerable, and that he had the defense mechanisms of cheer and optimism to conceal that vulnerability. But it was in his eyes.”
The moment that captured who Ed was to him came at the end. “When he was dying, his second-to-last sentence (garbled then repeated) was, ‘Don’t forget to pay Merci,’ the cleaning lady coming the next day. We had had a rough day, and I was popping off like a coach or dad about getting angry at his weakness and pushing through it. He took it almost like a pack mule.”
Edmund White’s work shaped generations — it gave us language for desire, shame, wit, and liberation. But what lingers just as powerfully is the extraordinary life Ed lived with a man who saw him not only as a literary giant but as a real person: sunny, complex, vulnerable, generous.
In the end, Ed’s final words to his husband weren’t about his books or his legacy. They were about care, decency, and love. “You’re good,” he told Michael—a benediction, a farewell, maybe even a thank-you.
And now, as the world celebrates the prolific writer and cultural icon Edmund White, it feels just as important to remember the man and the person who knew him best. Not just the story but the characters who stayed to see it through to the end.
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