Military Experts’ Testimony about Combat Eligibility Deemed Relevant to Understand Gender-Based Classification

Rostker v. Goldberg

Memorial Day, observed on the last Monday of May, commemorates all men and women who have died in military service for the United States. It started as an event to honor Union soldiers who had died during the American Civil War. It was inspired by the way people in the Southern states honored their dead.

Let’s take a moment to examine crucial decisions in the military history of United States of America such as the  Supreme Court case that upheld the male-only requirement for selective service registration.

Facts

Section 3 of the Military Selective Service Act (MSSA) granted the President authority to mandate the registration of all male citizens and resident aliens aged 18 to 26 for potential conscription. Despite the draft’s discontinuation in 1975, President Carter in 1980 recommended reactivating registration, proposing Congress to amend the Act for inclusive registration and conscription of both genders. However, Congress acknowledged the need to resume registration but allocated funds solely for male registration, declining to amend the Act for women’s registration. Subsequently, the President directed the registration of specific male groups under Section 3.

Nearly a decade later, in a case initiated by several men challenging the Act’s gender discrimination, the U.S. District Court for the Eastern District of Pennsylvania ruled against the Act. The court found its gender-based discrimination violating the Fifth Amendment’s due process clause, issuing a permanent injunction against registration under the Act.

Court Discussion

It was argued that the present case is quite different from the gender-based discrimination cases despite appellants’ assertions. Even the military experts who testified in favor of women’s registration remained opposed to drafting women into service. It was suggested that in the scenario of a 650,000-draft, approximately 80,000 female inductees could be accommodated by the military. These 80,000 women could fill non-combat positions, thus enabling men to assume frontline duties.

However, the District Court’s decision to invalidate the MSSA by relying on this testimony was an overreach of its authority, particularly as it disregarded Congress’ considered response to this argument. Congress, after deliberation, chose not to include women in draft and registration plans, deeming it impractical and burdensome.

In deeming the MSSA unconstitutional, the District Court heavily relied on the President’s move to seek authorization for women’s registration and the testimony from executive and military members supporting this action. Witnesses from the administration emphasized before Congress that the President’s decision was driven by principles of equity. While some argued for female registration based on equality, Senator Sam Nunn of the Senate Armed Services Committee stressed that the primary consideration should be military necessity.

The Government did not defend the exclusion of women from registration on the ground that preventing women from serving in the military is substantially related to the effectiveness of the Armed Forces. At the congressional hearings, officials from both the Department of Defense and the Armed Services provided testimony indicating that the involvement of women in the All-Volunteer Armed Forces had greatly enhanced military effectiveness.

Held

The recommendation from the Defense Department to include women in registration plans stemmed from its assessment that drafting a limited number of women could contribute to military effectiveness. Military experts, in light of this, opined that “equity” favored registration of women. By “considerations of equity,” military experts recognized that female conscripts are capable of performing as well as  male conscripts.

However, the United States Supreme Court overturned the District Court’s decision on appeal. It was concluded that exempting women from registration did not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.

Key Takeaways