In an opinion piece published yesterday by Bloomberg View and available here, Harvard Law professor Noah Feldman questions the constitutionality of the enumerated Article 134 offense of adultery with the demonstrably-false assertion that:
The adultery prohibition violates the fundamental right to privacy, regardless of whom it covers.
Professor Feldman’s piece was prompted by the claim of an Air Force Colonel (who is charged with rape, assault, and adultery) that the adultery offense discriminates against homosexuals because, according to this report:
the military’s definition of adultery as sex between a man and a woman hasn’t keep place with its definition of marriage, which now includes same-sex couples. That’s because the military’s adultery law requires “sexual intercourse” as an element of guilt, which the Pentagon defines as an act between a man and a woman.
“A homosexual man or woman couldn’t commit adultery as defined,” [the Colonel’s defense counsel] argued.
[Colonel] Caughey’s defense team maintains that because gay people get a pass, the charges violate the colonel’s rights under the 14th Amendment, which mandates equal protection under law.
This argument is nonsense, and has already been rejected by the Navy-Marine Corps Court of Criminal Appeals in United States v. Hackler, __ M.J. __, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (discussed here).
Professor Feldman, however, writes that “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.”
No professor. It’s not. Article 134 doesn’t discriminate on the basis of sex and it’s hard to imagine a court striking it down.
As I explained in this post, the crux of an adultery prosecution is its deleterious effect on the military mission and not morality or the sanctity of marriage. Article 134 is a broad prohibition on any conduct that is prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, and adultery is merely one of the many non-exclusive ways to violate Article 134 listed in the Manual for Courts-Martial. Even if homosexuals don’t engage in sexual intercourse as contemplated by the Manual for Courts-Martial, an extra-martial homosexual relationship is equally subject to prosecution under Article 134 as a heterosexual one. And because such a prosecution hinges on prejudice to good order and discipline or service discredit – and not merely sex outside marriage (discussed here) – it does not infringe upon any right to sexual privacy, heterosexual, homosexual, or otherwise.
Professor Feldman ignores all of these factors.
Moreover, if anything heterosexual adultery has greater protection from prosecution than homosexual adultery.