Last Thursday, Secretary of Defense Leon Panetta and the Chairman of the Joint Chiefs of Staff, Army General Martin Dempsey released a directive to all branches of the United States armed forces that women are no longer barred from serving in combat roles. The news was immediately greeted with indignation and outrage on the part of conservative political leaders. As but one example, Senator James Inhofe, R-Okla. announced his intention to pass legislation continuing the ban on female service personnel serving in combat positions.
Exactly why Inhofe wants to substitute his own preferences in military matters for those of our military leaders, I can’t guess. But whatever the reason, lifting the ban on women in combat raises another distinct possibility – that women will be required to register with the Selective Service System and therefore subject themselves to a military draft should one occur. In fact, an examination of the legal reasons for why that’s not already the case shows that, with the Pentagon’s directive, there is now no reason to exempt women from the draft.
As things stand now, young men between the ages of 18 and 25 are required by law to register with the Selective Service System. Failure to do so is a criminal offense punishable by up to five years in prison and a $250,000 fine.
Back in the early 1970s, a group of young men challenged the military draft saying its sex-based provisions denied them the equal protection of the laws. It took seven years, but eventually their case found its way to the United States Supreme Court which ruled that sex bias in the military draft was legally acceptable. But the Court, in the case of Rostker v. Goldberg, 453, U.S. 57, 1981, ruled as it did for precisely the reason that now should mean the Selective Service System requires women to register.
The seven-member majority in Rostker examined the legislative history of the law creating the Selective Service System in 1948, and determined that Congress had carefully considered whether to include women and decided not to. It had done so, according to the court, for the specific reason that the purpose of the draft was to have at the nation’s disposal in times of emergency, a pool of personnel who could be channeled into combat. That, plus the fact that the military’s own written policy excluded women from combat, meant that men and women were not situated the same legally regarding eligibility for the draft. Therefore, a law like the Military Selective Service Act that drew clear distinctions between the sexes could withstand constitutional scrutiny. And so it did.
The two-member dissent pointed out the obvious fallacy in the majority’s reasoning. Justices White and Brennan noted that many of the personnel requirements of the armed services were not for combat positions. Indeed, most personnel play a support role and so the majority’s emphasis on combat was misplaced. Put simply, women should be required to register with the Selective Service System and, in the event of a draft, simply placed in non-combat roles.
Exactly why the dissent’s plain thinking didn’t carry the day at the high court is anyone’s guess, but mine is that the justices didn’t want to whack the hornet’s nest of public opinion by invalidating the draft on grounds of sexual inequality.
Whatever the case and whether rightly decided or not, Rostker v. Goldberg is the law of the land regarding women in combat. And it should escape no one’s notice that, by its own reasoning, women should now be required to register with the Selective Service System and be drafted into the military equally with men should the need arise.
After all, Rostker held that the only reason for not requiring women to register at the time was their exclusion from combat roles by military policy. Last Thursday, that policy changed; women are no longer barred from serving in combat. Therefore, according to the logic of the majority in Rostker v. Goldberg, all women should be required to register with the SSS when they turn 18.
We’ll see. Doing so will require either changing the Military Selective Service Act or bringing a case before the Supreme Court. In the process we’ll be able to judge whether my guess about why the minority view in Rostker didn’t prevail in the first place. Do politicians and judges fear imposing the same requirement on women that they’ve imposed on men since 1948? Will feminists lobby for equality of the sexes in the case of the military draft?
Stay tuned.
