Women and the Draft: Can we Require Only Males to Register?

Tom Warwick

The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them.” – Justice Rehnquist, Rostker v. Goldberg

A few weeks ago, John, Winston, and I published an article on the history of the draft as well as a point-counterpoint article about whether or not a draft is even necessary.  To round out this unlikely suite of articles, I thought it would be interesting to take a look at the gender discrimination built into the system, and whether or not requiring only males to register is  constitutional.

In case you missed my last article, the modern day Selective Service was first instituted in September of 1940 when Congress passes the Selective Training and Service Act.  The Act required that all men between the ages of 21 and 45 register for the draft, and if selected from the draft lottery, serve for at least one year in the armed forces.  By the end of the Second World War over fifty million men between 18 and 45 had registered for the draft and over 10 million had been selected for service.  After victory was declared, the original authorization bill was allowed to expire effectively ending the draft.  However, less than two years later Congress voted to enact a similar law in order to maintain the military manpower needed as a result of the Cold War. The most infamous use of the Selective Service System came with the escalation of the Vietnam War in 1969. As the situation in Vietnam began to deteriorate there was a need to fill the vacancies left open by the lack of volunteers, by the end of the war 1,857,304 men would be inducted into the armed forces. The unpopularity of the war in Vietnam among young Americans combined with its seemingly unending causality count, resulted in a major backlash against the Draft and the leaders who enacted it. As a result in 1973 the Department of Defense announced that the military would become an all-volunteer force, and in 1975 President Ford signed a bill ending the Selective Service Act. A short five years later President Carter reenacted the Selective Services with the approval of Congress and the modern Selective Services System was created.

Today all men between the ages of 18 and 26 must register for the Selective Services or face the possibility of fines up to 250,000 dollars, five years in jail, or the denial of access to federal programs or jobs.  While all men are required to register within six months of turning 18, women have never been required to register. This exception, based solely on gender, opens the door to potential equal protection challenges. While past attempts have not been successful, recent changes to Department of Defense policy addressing the role of women in combat roles has presented a new element to this constitutional question.   

The first challenge to the “male-only” system came in 1981 with Rostker v. Goldberg. Shortly after Congress reinstated the Selective Service, a group of college age men challenged the law citing that it was a violation of the Fifth Amendment’s Due Process Clause.  In the opinion written by Justice Rehnquist, still a few years away from being Chief Justice Rehnquist, the court held 6-3 that it was constitutional for Congress to exclude women from the draft.  The Court reasoned that the exclusion of women from the selective services was not “the accidental by-product of a traditional way of thinking about females” but rather a case of two parties that were not similarly situated. In 1981 military policy dictated that women were prohibited from taking a combat role; because the selective services were re-established primarily as a response to the invasion of Afghanistan by the Soviet Union and the potential for conflict the court reasoned that since women could not take part in the actual combat roles they were not similarly situated for the purposes of draft registration.  Since ,in the six of the justice’s opinion, men and women are not similarly situated, Congress was justified in its discrimination.

Needless to say a lot has changed both in the world and the military since 1981.  Women have been playing a much bigger role in combat operations, and in military conflicts such as the ones we are seeing in the Middle East as many soldiers end up in combat situations regardless of their Military Occupation Specialty (MOS). In the past few years we have seen examples of women actively taking on combat roles, such as in August of 2015 two women graduated from Army Rangers School. Many prominent military leaders have also been vocal about the subject; Former Secretary of the Navy Ray Mabus has frequently expressed his desire to see women as both Navy SEALs and as Marine Infantry Units. Since the original Rostker case military policy concerning women in combat roles has shifted from blanket exclusion to the idea that if you can meet the standards you should be able get to perform the job.  Which begs the question, are women and men still not “similarly situated” when it comes to exclusion from the draft?

If the primary reasoning for the “not similarly situated” decision in Rostker was to reflect military policy, this motivation is no longer present. If a similar case was heard today, the exclusion of women from the draft should be found unconstitutional for two main reasons. The first is the facts that women are being accepted into combat roles, if the purpose of the draft is too quickly compile soldiers for combat it would not make sense to exclude a group that has proven that it is capable of fulfilling this role. The second is that since female soldiers have shown they can meet the required physical standards, the law no longer meets the requirements to pass the Intermediate Scrutiny Test.  The Intermediate Scrutiny Test is a standard used by the Supreme Court to judge cases of discrimination, under this test the government has to provide a “compelling reason” for excluding a group of people.  Since there have been cases of women meeting the standard originally used for excluding them the government no longer has a “compelling reason” to exclude them.  With this is mind, it would be hard to argue that the discrimination seen against women in the Selective Services is still constitutional.

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