Originally published on Advocate.com August 16 2003 12:00 AM ET
A judge declined on Thursday to throw out the Marine Corps' case against an openly gay conscientious objector who claims he is being court-martialed because he publicly criticized the war in Iraq. Navy judge John A. Maksym also denied Lance Cpl. Stephen Funk's lawyer access to Marine files regarding who else may have been absent without leave, or AWOL, and how they were punished.
Funk's lawyer, Stephen Collier, had noted at a hearing Monday that a Marine sergeant said the Marines wanted to make an example of Funk, who attended antiwar rallies and made statements in the media criticizing training methods. But Maksym said a sergeant who may have made an inappropriate comment would not have the authority to initiate court-martial proceedings. "There is simply no evidence before the court that anyone with real authority within the Marine Corps or a department of the Navy targeted the accused for prosecution," Maksym said.
The judge has said he would allow Funk to introduce evidence concerning his conscientious objector beliefs. Collier said the judge's decision leaves open to doubt whether Funk was treated differently than other Marines who missed training in the months before the Iraq war.
Marine spokesman Capt. Patrick Kerr said Thursday's ruling "reinforced our belief that Funk is guilty of desertion and that we in no way singled him out."
Funk missed 47 days of training with his San Jose, Calif.-based unit last February as it mobilized for the war in Iraq. When Funk turned himself in to the Marines he applied for discharge as a conscientious objector. Funk also made public that he is gay, although he said that was not his reason for wanting to leave the Marines.
Funk was then transferred to New Orleans with other conscientious objectors for processing. But unlike the others, Funk now faces a court-martial in September on the charge of shirking important duty, a charge that could carry up to a year in military prison if he is found guilty.