Did Marcum establish an additional element in an Article 125 consensual sodomy case?

Yesterday we noted Major Joel P. Cummings' very interesting article on Article 125 in the most recent Army Lawyer, available here. Twice in the article, MAJ Cummings opines that Marcum essentially created a new "prejudicial to good order and discipline" element for consensual sodomy charges preferred under Article 125. Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 7, 9 ("the Marcum court essentially added to Article 125 the element of prejudice to good order and discipline from Article 134."; "In effect, the Marcum court made consensual sodomy like an Article 134 offense requiring an element of prejudice to good order and discipline.").

We also noted that during yesterday's oral argument in Harvey at the Air Force Court, both the appellate defense and appellate government counsel agreed that Marcum had created a new de facto element for consensual sodomy charges tried under Article 125 (though the appellate government counsel argued that this de facto element didn't apply to consensual sodomy charges tried under Article 133). Unbeknownst to me until today, at some point yesterday the Air Force Government Trial and Appellate Counsel Division (JAJG) tried to call an oral argument Mulligan. This is from a motion JAJG filed yesterday at some point after the oral argument:

Appellee would like to clarify a position taken by counsel during oral argument concerning the applicability of the Marcum factors. In cases where Marcum factors apply, the factors do not involve questions of fact that would be given to the members to determine. The United States does not believe that Marcum factors apply or should be given as part of the instructions to panel members in cases where a violation of Article 133, UCMJ, is charged. As explained during oral argument, a charge of Article 133 is wholly different in its nature and the considerations involved than a charge of Article 125. If, however, this Court determines that Marcum factors apply when Article 133 is charged, this means that the military judge should consider the Marcum factors as a question of law to determine if the charge is constitutional as applied to an accused. It does not mean that the members are given instructions as if the Marcum factors are a part of the elements to determine findings of fact. This is the position of the United States despite counsel's statements during oral argument.

Likewise, in cases like Marcum where a violation of Article 125, UCMJ, is charged, the Marcum factors apply in that the Court should consider the factors as a matter of law to determine whether the charge is constitutional as applied to that case. This is what the Court did in Marcum regarding sodomy with a subordinate, and the Court found that the charge was Constitutional as applied rather than remanding the case for a finding of fact. The application of the Marcum factors does not mean that the factors become a part of the elements for sodomy or that instructions to the members should include the Marcum factors. Marcum means that the Court should consider the Marcum factors as a matter of law to determine whether the charge is constitutional as applied.

I'm actually surprised by JAJG's attempt to walk back its position. If I were government counsel at a court-martial, I would prefer that the members rather than the military judge decide whether the case fell within one of the three Marcum factors. If it's treated as a question of fact, then the members decide it, subject only to a factual and legal sufficiency review by the CCA and possible legal sufficiency review by CAAF and the Supremes. If, on the other hand, it's treated as a question of law, then it's subject to de novo review by the CCA, by CAAF, and by the Supremes. On the defense side of the house, at the trial level I would prefer it to be a question of law that I could ultimately win at CAAF rather than a factual question that the members would, in essence, definitively resolve. In some future Article 125 prosecution, a trial defense counsel who has the same view as me can now rely the government's Harvey motion from yesterday in support.