In This Issue: - Riverside County Bar Association

more effective inclusion and integration and may not only
eliminate exclusions based on sexual orientation, but also
have an effect on glass ceilings based on gender. However,
he notes that the military had seen a decline in female servicemembers
in combat positions after the first Gulf War,
but there has not been the same kind of societal impetus
to act urgently on that issue. It remains to be seen whether
integration regarding gay and lesbian servicemembers will
generate benefits for female servicemembers generally.
The Ruling Itself and the Pending Appeal
I asked Dean Chemerinsky about two of the more controversial
aspects of the ruling. First, as to the separation
of powers issue mentioned above, Dean Chemerinsky also
added, “I do not agree that this case presents a separation of
powers issue. The case is a classic instance in which a federal
law is being challenged for violating the Constitution.
It does not matter whether it comes from the executive
or from a statute. Neither the President nor Congress
can violate the Constitution.” And second, on whether
the ruling is limited only to the group of plaintiffs, much
as was argued about limiting the sweep of Judge Vaughn
Walker’s ruling in Perry v. Schwarzenegger to the named
county defendants, he said, “I think this is very different
than the Prop. 8 litigation. That was an initiative for just
California. Judge Walker declared it unconstitutional, with
the Governor and the Attorney General as the defendants.
DADT is a national law. To what extent can a judge in one
district issue a nationwide injunction and thus preclude
judges in other circuits from being able to rule on the
question? There is remarkably little law on the ability of a
district court judge to issue a nationwide injunction.”
Detractors of the decision notwithstanding, Professor
Cruz and Dean Chemerinsky are two of many constitutional
law scholars who thought Judge Phillips wrote an opinion
well-supported by constitutional law after conducting
a thorough trial on the merits, complete with witnesses
and evidence. The government’s case was rather weak – it
basically submitted the legislative record for DADT and
asked the court to defer to the government’s military
policy. However, as Judge Phillips wrote in the conclusion
to her opinion, “deference does not mean abdication.” 9 It
remains to be seen how much deference an appellate court
would give to DADT, but based on legislative action, possibly
motivated by Judge Phillips’ injunction, this case may
not even reach that point.
Christopher J. Buechler, a member of the RCBA Publications
Committee, is a paralegal for Riverside County Department
of Child Support Services and a private attorney. He can be
reached at chris.buechler@gmail.com.
9 Citing Rostker v. Goldberg, 453 U.S. 57 at 67, 70 (1981).
Riverside Lawyer, May 2011 11