dissenting:
The primary issue to be determined is whether private sodomy between consenting adults in a heterosexual relationship is constitutionally protected by the right of privacy. I believe that it is.
Resolution of the issue begins with the landmark case of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), which dealt with the constitutionality of Connecticut’s statutes criminalizing the use of contraceptives by married couples and criminalizing the activities of those who aided and abetted in their use. The Court struck down the Connecticut statute recognizing, for the first time, a constitutionally protected right of privacy. It also set forth what many later cases have termed a “eulogy” of the marital relationships:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any invoked in our prior decisions.
Griswold v. Connecticut, 381 U.S. at 486, 85 S.Ct. at 1682.
Because of this foregoing language, many cases subsequent to Griswold assumed that the right to privacy inhered in the marriage relationship alone and was inapplicable to a situation in which the parties were not married. See Pruett v. State, Tex.Cr. 463 S.W.2d 191 (1970); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (1971); Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972); Dixon v. State, 256 Ind. 266, 268 N.E.2d 84 (1971).
In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the Court extended the right of privacy under Gris-wold far beyond the narrow view taken by Washington, Pruett, Hughes, and Dixon, supra. In Eisenstadt the Court held violative of the equal protection clause a Massachusetts statute that prohibited distribution of contraceptives to unmarried persons but not to married persons. In the course of its opinion the Court stated:
It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia, 394 U.S. 557 [89 S.Ct. 1243, 22 L.Ed.2d 542] (1969).
Eisenstadt v. Baird, 405 U.S. at 453, 92 S.Ct. at 1038 (footnote omitted).
This language makes it clear that the right of privacy is a right of all persons, whether married or not. The better reasoned cases after Eisenstadt have indicated that convictions of consenting adults for “unnatural” sex acts committed in private violate the right of privacy. In Lovisi v. Slayton, 363 F.Supp. 620, 625-26 (E.D.Va. 1973), the court stated in dictum:
the rationale expressed in Eisenstadt extends to protect the manner of sexual relations between unmarried persons. It is not marriage vows which make intimate and highly personal the sexual behavior of human beings. It is instead, the nature of sexuality itself or some*1013thing intensely private to the individual that calls forth constitutional protection. ******
included among ... protected areas, this Court concludes, are intimate sexual relations between consenting adults, carried out under secluded conditions.
In United States v. Brewer, 363 F.Supp. 606, 607-08 (M.D.Pa.1978), aff’d 491 F.2d 751 (3rd Cir.1973), the court stated in dictum:
While there has been no Supreme Court decision on the precise issue of the Constitutional validity of statutes aimed at preventing ‘deviant sexual conduct,’ the apparent trend of recent decisions would indicate that such a right among or between consenting adults does exist. The broad ‘victimless’ Pennsylvania sodomy statute invoked in the instant case certainly cannot even claim a purpose as weighty as that of the abortion statutes struck down as unconstitutional, where harm to the fetus was brought into question.
******
If the simple question of adult consensual sodomy were invoked, this Court might strike down the statute.
I believe that in view of Griswold and Eisenstadt and the cases following them, no sound argument can be made that the right of privacy in sexual conduct between consenting heterosexual adults is “fundamental” only when the consenting adults are married to each other. The right of privacy is deemed fundamental because it is basic to the concept of the individual in our American culture and because it is a necessary prerequisite to the effective enjoyment of all our other fundamental rights. As Eisenstadt and its progeny have recognized, these reasons are wholly unrelated to the existence vel non of a marriage relationship. I believe that a right of sexual privacy between consenting heterosexual adults is fundamental. In so doing, I do not pass on the constitutionality of the crime of cohabitation. Nor would I extend this holding to the crime of adultery.
Having concluded that the right is fundamental, any regulation limiting the right must be justified by a “compelling state interest.” See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
The Government argues that acts of oral sex are deviant conduct1 and therefore subject to regulation by Congress. The State of Arizona in State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976) held that the state’s sodomy statute was constitutional when applied to both married and nonmarried individuals because the state can regulate “sexual misconduct.” The majority in Bateman and in the case sub judice base their label of misconduct upon the Bible and early English law.2 Although recognizing that in our modern society there are some people who believe such conduct is “deviant,” the Bate-*1014man court and the majority believe history forms a basis for the legislature to validly proscribe such conduct while the judicial branch must stand mute. I do not agree with this reasoning. The Arizona Court found a “rational basis” for the law. That is not enough. There must be a “compelling state interest.” I am unable to perceive of any injury or any danger that will accrue to anyone by allowing private consensual sodomy by heterosexual adults. It is not the function of penal law to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values. See People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980) (where the court held New York’s sodomy law to be unconstitutional).
I believe that Article 125, UCMJ, is unconstitutional when applied to private, consensual sodomy between heterosexual adults. In so doing I am mindful of United States v. Scoby, 5 M.J. 160 (C.M.A.1978) wherein Judge Cook states at page 166 that the Article is constitutional even as to consenting heterosexual adults. I note that Scoby involved homosexual conduct and therefore do not feel bound by this dictum.
As a general principle of Constitutional Law, I agree with the needs discussed in the concurring opinion. The aggravating facts and circumstances of the case sub judice at first blush appear to balance the scale in favor of the needs for a disciplined armed force. However, Griswold v. Connecticut, supra, and its progeny set forth a constitutionally protected right which may not be circumvented lightly. I cannot make the jump in logic that the absolute need for a disciplined armed force is as broad a compelling governmental interest so as to proscribe the private sexual acts between consenting adults in a heterosexual relationship. When I look at the balance of these competing rights, the scale is tipped in favor of the individual service member’s right of privacy.
Accordingly, I dissent from the majority’s holding concerning the constitutional question of Article 125, UCMJ, raised by the appellant. In all other respects, I agree with the majority’s disposition of the assignments of error.
. Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925 (1976) broadly defines sodomy as “unnatural carnal copulation.” Paragraph 204, Manual for Courts-Martial, United States, 1969 (Revised edition) explains:
It is unnatural carnal copulation for a person to take into his or her mouth or anus the sexual organ of another person or of an animal; or to place his or her sexual organ in the mouth or anus 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; or to have carnal copulation in any opening of the body of an animal.
For definitions of various terms, see United States v. Dearman, 7 M.J. 713 (A.C.M.R.1979).
. What is considered immoral, unnatural or deviant sexual conduct may vary by time and circumstances. This is a matter of some controversy wherein I take no position. It is noted that in his 1953 book, Sexual Behavior in the Human Female, at page 361, Dr. Kinsey found that in the pre-coital techniques of married partners, oral stimulation of the female genitalia by the male occurred in 54 percent of the sampled cases and of the male genitalia by the female in 49 percent of the sampled cases. In their 1967 book, The Freedom of Sexual Love, Joseph and Lois Bird at page 116, state “Oral-genital stimulation in the pre-coital love-making of husband and wife is not immoral. Nor is it unnatural of perverted.” They go on to state that there are a number of studies verifying the prevalence of this variety of love-making among married couples. This book indicates that its contents are consistent with the teachings of the Roman Catholic Church.