Scholars question authority of judge

October 14, 2010 at 12:00a.m.

McClatchy Newspapers

WASHINGTON

Legal scholars questioned Wednesday whether a federal judge in California can bar the entire armed services from dismissing openly gay service members, as the Obama administration considered how to respond to the sweeping ruling.

The Justice Department is expected to appeal Judge Virginia Phillips’ order overturning the law and halting all Defense Department proceedings aimed at discharging gay and lesbian personnel. Last month, government lawyers cited a number of legal opinions in a brief that warned the judge against issuing an order that went beyond the handful of plaintiffs who sued in her court.

Vikram Amar, a University of California Davis law professor, agreed that the judge’s authority extends only to the plaintiffs in this specific case, not to the entire nation. “‘The ‘don’t ask, don’t tell’ case was not certified as a class action,” Amar said. Most federal appellate courts have said that a judge cannot issue a ruling that goes well beyond the parties who brought the suit.

Others disagreed. University of Southern California law professor David Cruz said Phillips’ ruling in favor of the Log Cabin Republicans, a gay rights group, determined that the “don’t ask, don’t tell” law was “facially unconstitutional.” In such a suit, the plaintiffs do not argue that law is unfair to them, but rather that it is unconstitutional for all.

Once a judge declares the entire law unconstitutional, “she has the authority to issue a ruling binding all the defendants,” Cruz said, which in this instance, would be the branches of the U.S. military.

Pentagon officials said Wednesday they had not received any guidance on whether to continue with pending cases.