Wednesday, June 18, 2008

Such a Strained Argument

PFLAG reported here last week that, at a Thursday afternoon ceremony, President Bush plans to honor Retired General Peter Pace - the former Chairman of the Joint Chiefs of Staff - with the Presidential Medal of Freedom, one of our nation's highest honors. The decision to honor Pace, which PFLAG was the first national organization to oppose, comes despite his much-publicized comments maligning LGBT service members as "immoral."

The list of six honorees for tomorrow's event with the President, however, includes another infamous foe of gay military personnel.
Judge Laurence H. Silberman (pictured) wrote a 1994 opinion upholding the military's exclusion of gay Americans which was one of the first judicial decisions to support firing lesbian, gay and bisexual patroits from our armed forces. It was the case of Joe Steffan, a former Navy Midshipman dismissed under the pre-"Don't Ask, Don't Tell" ban on open service.

According to The New York Times, "Judge Silberman said the military's ban on those who avow homosexuality did not violate equal protection guarantees and indeed was no different from the Navy's height or eyesight requirements, for instance."

Silberman dismissed Mr. Steffan's legal challenge to the law as having "a certain superficial attractiveness," but also said that ". . . it is more clever than real."

"Steffan's claim that the Government cannot rationally infer that one who states he or she is a homosexual is a practicing homosexual, or is at least likely to engage in homosexual acts, is so strained a constitutional argument as to amount to a basic attack on the policy itself," Silberman wrote at the time.

In her dissent to Silberman's opinion, Judge Patricia M. Wald wrote that the majority decision "runs deeply against our constitutional grain."

"In years to come, we will look back with dismay at these unconstitutional attempts to enforce silence upon individuals of homosexual orientation, in the military and out," Wald wrote. "Pragmatism should not be allowed to trump principle, or the soul of a nation will wither."

While the history of the past decade has proven Wald right, as more and more Americans say they support allowing LGBT Americans to serve, there are some who still favor unconstitional silence over the principles of patriotism and military readiness.

And that, truth be told, is neither clever nor real (smart) . . . and it's "such a strained argument" as to seem even more ridiculous today than it did way back then.

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