AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."
Turning to the facts of the case, the court reasoned:
[W]e conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. This is such a case. In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).
As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.
My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.