Harvard Journal on Legislation

G.I. Jane and the Selective Service: Equal Protection Challenges to Male-Only Selective Service in the Modern Military[*]

By Russell Spivak, JD ‘17 & Lieutenant Adam Aliano, USN, JD ‘17

[*] This article in no way reflects the views of the Department of Defense.

In 1981, the Supreme Court approved a requirement that men alone register with the Selective Service in Rostker v. Goldberg. The Court relied on the military’s disparate treatment of men and women with respect to their ability to serve combat to hold that male-only registration passed Equal Protection Clause analysis. In 2015, however, Defense Secretary Ash Carter opened all military jobs to qualified women. By mid-2016, both the Senate and House had passed their versions of the National Defense Authorization Act of 2017. The Senate’s version contains a provision requiring women to register with the Selective Service, while the House’s version’s analogous provision was stripped after being approved. The provision’s ultimate fate is up to a conference committee. However, in light of the changes in women’s ability to serve, the committee’s decision is academic: male-only registration is unconstitutional under the Equal Protection Clause.

I. Introduction

On June 14th, 2016, the United States Senate passed the latest National Defense Authorization Act, or NDAA.[1] Its most controversial provision amends the Selective Service Act—which authorizes the federal government to raise a military fighting force composed of those registered—to require women to register with the Selective Service Administration.[2] Since the Selective Service Act’s original enactment in 1917, only men were required to register, meaning only men could be compelled to serve in a draft under the act.

Some opposed the provision. Among its most vocal critics was former Presidential candidate Ted Cruz (R–TX), who said in a prepared statement, “The idea that we should forcibly conscript young girls in combat to my mind makes little sense at all. . . . I could not in good conscience vote to draft our daughters into the military, sending them off to war and forcing them into combat.”[3] Many others within the conservative movement were also up in arms at the provision. The Heritage Foundation’s Action for America released a statement decrying the provision: “Allowing our daughters to be forced into combat if there is a draft is a clear example of Washington placing more value on liberal social engineering than military objectives and preparedness.”[4] In the end, despite an attempt on the Senate floor from Sen. Mike Lee (R–UT) to strip the language, the bill passed.[5]

The House struggled with a similar debate over their version of the NDAA. While the bill was in the House Armed Services Committee, Rep. Duncan Hunter (R–CA) offered an amendment that would require women to register for the selective service.[6] The amendment just barely passed, 32–30, in late April.[7] In an “unusual but not unprecedented procedural move,” the “Rules Committee members instead voted to cut off consideration of the issue on the House floor and strike that entire section of the bill.”[8] The respective House and Senate versions of the NDAA will now head to a conference committee, or a temporary panel of Senators and Congresspersons, to negotiate the differences between the iterations.

Media reporting of the issue has primarily focused on legislative efforts and political reactions.[9] But attention to the issue may be best directed to the legal issue underlying the debate: equal protection.

In 1981, the selective service requirements were challenged on equal protection grounds. A three-judge panel of the United States District Court for the Eastern District of Pennsylvania originally deemed the law unconstitutional and subsequently enjoined it.[10] The case made its way to the Supreme Court,[11] where the Justices upheld the law’s constitutionality based on the—implicitly constitutional—distinction for women in military service.[12]

Today, that distinction has all but disappeared. In late 2015, Secretary of Defense Ashton ‘Ash’ Carter broke down the barriers of where women can and cannot serve in uniform.[13] Particularly, women can now serve in combat,[14] have served in submarines, and have been admitted to and passed Ranger School, one of the Military’s most selective and difficult training programs.[15] Given the changes to both legal and factual restrictions on when and how women have played a de facto combat role in recent battle situations,[16] a single-sex draft no longer passes muster under the Equal Protection Clause.

In this essay, we consider the equal protection arguments now facing a male-only selective service, and conclude that single-sex registration no longer stands up to constitutional scrutiny. We begin with a brief history of military conscription and selective service in the United States, which has withstood protracted legal battles in years past. Next, we turn to the structure of equal protection battles today. Finally, we juxtapose the Rostker decision with the new military reality for women in light of the Obama Administration’s drastic changes. In sum, we conclude that the Administration’s changes undermine any argument for distinct, gender-based requirements for selective service registration.

II. A Brief History of Conscription in the United States

i. The Founding Era

Which branch of government holds what war power has been, is, and will remain a battle. The executive branch undoubtedly holds some power, as does the legislative branch. The judiciary reprises its typical role of mediating, ensuring neither branch overreaches on the other’s turf.

Our Founding Fathers, the constitution’s “framers[,] intended to grant Congress broad discretionary powers to conscript or not to conscript, as Congress saw fit.”[17] The history of the Constitution’s adoption demonstrates this point; it can be seen particularly clearly in the arguments from the father of the Virginia Plan, Governor Edmund Randolph.

Urging the Constitutional delegates to adopt the plan, he specifically invoked the term “draft” to remedy the grave weaknesses left by the “the inability of the Confederation to raise a national army under the Articles, and the Confederation’s consequent reliance on the militia of the several states for military force.”[18] Alexander Hamilton argued the same principle in the Federalist Papers:

The authorities essential to the care of the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed . . . .[19]

Regardless of the tug of war between the executive and legislative branches in the realm of waging war, the power to enact the draft is an arrow decidedly in the legislative quiver.

ii. Historical Application

Interestingly, though, national conscription was not enacted until a few decades into the nation’s tenure.[20] During the War of 1812, President James Madison unsuccessfully tried to institute a draft—which would have netted the budding nation’s armed force by 40,000 troops.[21] The Civil War brought the enactment of the first successful conscription in the United States. Of the 2,100,000 Union soldiers, only 8% were drafted via conscription, only one-quarter of whom were draftees and the remainder of whom were serving as substitutes paid by draftees.[22] The drafts were not universally approved: to the contrary, news of Congress’s passage of the draft was met with the second largest civil insurrection in United States history—second only to the Civil War itself—in New York City, commonly referred to as the Draft Riots.[23] The Confederacy also enacted a conscription service, but it was a staggering failure due to civilian resistance, desertion, and bribery.[24]

Passed soon after the United States entered World War I, the Selective Service Act[25] brought the next generation of conscription troops and is the foundation for today’s Selective Service enrollment. But World War I also turned out to be the first time the constitutionality of conscription was challenged. In Arver v. U.S.,[26] Chief Justice Edward Douglass White reviewed the convictions of six young men who failed to present themselves for registration as required by the Act.[27] The Chief Justice interpreted Congress’s Section 8 powers to permit the raising of an army, including conscripting servicemembers, “[a]s the mind cannot conceive an army without the men to compose it . . . .”[28] Put another way:

To argue that as the state authority over the militia prior to the Constitution embraced every citizen, the right of Congress to raise an army should not be considered as granting authority to compel the citizen’s service in the army, is but to express in a different form the denial of the right to call any citizen to the army.[29]

For good measure, the Court also reviewed conscription from an historical and original perspective, citing Parliament’s conscription powers at the time of the Constitutional Congress and individual States’ constitutions that explicitly permit conscription at the national level.[30] Finally, the Court flippantly dismissed the last two contentions: that the act is simply repugnant to the Constitution and that it vests legislative discretion to administrative offices.[31] Without reason to strike down the law, the Court affirmed the men’s convictions.[32] With the act upheld, the United States eventually drafted into military service more than 2.8 million men, making up over 58% of American armed forces, out of the over 24 million registered.[33]

World War II relied on the Act in a largely similar fashion: the country inducted over 10 million troops via registration.[34] The Act’s provisions were challenged again in Falbo v. U.S.,[35] when an ordained minister was convicted of “willfully fail[ing] to obey [his] local draft board’s order to report.”[36] In adjudicating the minister’s conviction and sentence, the Court constrained itself to the narrow procedural inquiry of “whether Congress has authorized judicial review of the propriety of a board’s classification . . . .”[37] Deferring significantly to Congress’s will that the draft laws were meant to provide an “efficient [means] for inducting great numbers of men into the armed forces,” the Court upheld the procedures of the statute and affirmed Falbo’s conviction.[38] This began the trend of court challenges to the procedural aspects of the draft—particularly from those who sought exemptions under myriad exceptions—rather than its underlying principles.

The Korean War required another full-scale conscription: the United States inducted another 1.5 million men,[39] inviting additional legal challenges. Particularly, 1953 brought two more cases about draft procedures whose decisions demonstrate the significant deference the Court afforded Congress in military affairs. In U.S. v. Nugent,[40] the Court examined the procedures around those seeking an exemption. The Draft Board must classify individuals seeking an exemption as meeting one of a handful of acceptable grounds.[41] The Department of Justice may aid in the Board’s decision.[42] The Court held that a declaration from the Justice Department claiming the person is entitled to the exemption does not bind the Board, but merely aids the Board’s adjudication.[43]

And in Orloff v. Willoughby,[44] Dr. Stanley Orloff, “a physician educated at government expense and beyond the usual draft age, was inducted into the Army under the Doctors’ Draft Law, which authorizes special conscription of certain ‘medical and allied specialist categories.’”[45] Orloff, in his application for a commission, refused to state whether he had a connection to the Communist Party and was therefore denied a commission and assigned duties as a medical technician rather than as a doctor.[46] Orloff petitioned for a writ of habeas corpus, arguing that because the law under which he was conscripted is particularized for doctors, his service as a medical technician despite his credentials violated the law, rendering him ineligible.[47] One of the Court’s most famous pragmatists, Justice Robert Jackson, wrote a predictably practical opinion. Deferring to the Military’s expertise regarding its troops’ efficacy and the needs of military planning, he upheld the decision to place Orloff in a non-medical unit,[48] writing,

[J]udges are not given the task of running the Army. . . . The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.[49]

Justice Jackson’s words neatly summarize the Court’s hands-off approach to many war powers, particularly the draft: the Court intervenes only when a facially obvious and cognizable constitutional claim exists.

The Vietnam War, the final time a draft was enacted under the Selective Service protocols, presented its own infamous challenges given national civil disobedience and protests against of the war effort. Again, the Court’s first instinct was deferential. It would step in when the drafting of individuals presented obvious and egregious violations,[50] but otherwise did little to amend the draft structurally.

When President Nixon terminated the draft in 1973, the Selective Service Act also lay dormant. President Carter’s 1980 Presidential Proclamation 4771 reinstated the Selective Service requirement: it mandated that all males born in or after 1960 register,[51] a rule which remains in effect today.[52]

In recent years, especially during the waning years of the Iraq War, there have been discussions, if not outright attempts, about opening Selective Service eligibility to women[53] or to entirely reinstate the draft.[54] Proponents of these measures have stated that adopting one or the other would compel greater Congressional scrutiny as to the value of the military objective; Members and Senators who would otherwise be enthusiastic for military involvement in a given conflict may not be so zealous if they had relatives, including female relatives, who could be drafted.[55] Until the recent push to require women to register, neither option had gained a substantial footing in Congress.[56]

III. Equal Protection Considerations

i. The Basic Framework of Equal Protection Claims

Section 1 of the 14th Amendment to the Constitution holds that no State (or state actor) shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[57] The 14th Amendment is directly applicable to the State actions (legislative or otherwise), but the Equal Protection norms also apply to Federal Government actions through the 5th Amendment’s Due Process Clause.[58] Chief Justice Earl Warren cemented this legal norm in Bolling v. Sharpe, famously noting that, although the 5th Amendment’s Due Process Clause does not explicitly incorporate Equal Protection safeguards inherent in the 14th Amendment, “the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive.”[59] Warren held that “[D]iscrimination may be so unjustifiable as to be violative of due process,”[60] and that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government [than on the States].”[61]

When a claimant alleges an equal protection violation, the Court will first assess if the law or policy discriminates against a “suspect” class,[62] or a “discrete and insular minorit[y]” group that is particularly susceptible to prejudice.[63] Such groups are typically associated with immutable physical characteristics (i.e., races or ethnicities) political powerlessness, a history of purposeful discrimination, or a general subjugation to stigma and stereotype.[64] Should the Court find that the government action focuses on a suspect class, it analyzes the legislation’s purpose. If the legislation’s purpose is discriminatory “on its face,” the Court applies “strict scrutiny” to ensure that the action or policy is “suitably tailored to serve a compelling state interest.”[65] On the other hand, if the Court finds that the law is “neutral on its face,” the Justices examine if there exists underlying proof of an ulterior discriminatory intent, which, if proven, will again implicate some form of heightened scrutiny.[66] Indicia of this underlying discriminatory intent include but are not limited to inconsistency with historic legislative priorities and extremely disproportionate racial impact.[67] Otherwise, the Court applies a “rational basis review,” a lower standard merely requiring the government to prove the legislation in question is rationally related to a legitimate government purpose.[68]

ii. Gender Discrimination: A Hybrid Standard of Review

Though the Equal Protection Clause brought about changes in race-related legal discrimination almost immediately,[69] gender-based discrimination was addressed at a much more gradual pace. Historically, the Court did not give gender-based classifications, such as disparate employment opportunities based on gender, greater scrutiny than rational basis review, as gender was not yet considered a suspect classification.[70] As a result, the Court upheld statutes creating distinct and limiting opportunities for women until nearly the middle of the 20th Century. Much of the underlying policy decisions were founded in then-contemporary views on gender roles. In 1873, for example, the Supreme Court upheld an Illinois Supreme Court decision that affirmed the exclusion of women from the Illinois state bar—a requirement to practice law—because, among other things, “[t]hat God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply and execute the laws, was regarded as an almost axiomatic truth” at the time the statute excluding women was passed.[71] In a separate concurrence, Justice Joseph P. Bradley stated:

Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband . . . many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.[72]

This sort of analysis typified the era’s untenable subordination of women.

Simultaneously, however, the women’s rights movement was picking up steam. The year prior to the Court’s exclusionary decision, Illinois passed a law that prohibited barring anyone from any occupation or employment because of sex.[73] Moreover, 1872 saw the first argument that the 14th Amendment qualified women to vote. The organizer subsequently arrested for trying to vote under that theory? Susan B. Anthony.[74] In 1875, the Supreme Court would declare that the Amendment did not, in fact, authorize women’s suffrage.[75] So, while the women’s rights movement succeeded in highlighting the discrepancies in treatment between men and women at the turn of the 20th century and was the driving force behind the 19th Amendment, it would take another 52 years for the Supreme Court to apply a heightened level of scrutiny in gender-based equal protection cases commensurate with the evolving national sentiment on womens’ rights and societal role.

Even by the halfway mark of the 20th century, for example, the Supreme Court sustained what we today would consider gender-discriminatory laws. In 1948, for example, the Court upheld a Michigan state law prohibiting women from working as bartenders unless they were the “‘wife or daughter of the male owner’ of a licensed liquor establishment.”[76] The majority held that the distinction between wives and daughters of owners and the wives and daughters of non-owners was “not without a basis in reason,” and that Michigan “could, beyond question, forbid all women from working in a bar.”[77] The Court’s “basis in reason?” “[B]artending by women may . . . give rise to moral and social problems against which [the legislature] may devise preventive measures. . . .Michigan evidently believes that the oversight [of a barmaid’s husband or father] . . . minimize[d] hazards that [might] confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan Legislature.”[78]

Reed v. Reed,[79] however, marked the first time Supreme Court mandated heightened scrutiny in a gender classification case by striking down a statute that gave men preference over women in the administration of intestate estates.[80] The majority required that the “relationship between the classification and the statutory objective be ‘fair and substantial’ instead of merely ‘rationally related.’”[81]

The plurality in Frontiero v. Richardson[82] built on Reed’s application of heightened scrutiny for gender-based classifications. Justice Brennan’s plurality opinion discussed Congressional sensitivity towards gender-based classifications, and concluded that such classifications “are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”[83] Specifically, the opinion asserted that:

[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility.’[84]

Though Justice Brennan applied strict scrutiny in invalidating the rule for female service members’ accrual of benefits, his “opinion only garnered four votes . . . and [the use of strict scrutiny for gender-based classifications] never commanded a majority of the Court.”[85] Therefore, strict scrutiny did not become the constitutionally-mandated test for gender-based equal protection claims.

In Craig v. Boren,[86] though, the Court upped the ante, holding that classifications based on gender must be “substantially related” to the achievement of “important government objectives.”[87] This case was the first time a majority of the Court applied any form of heightened judicial scrutiny—albeit “intermediate” rather than “strict” scrutiny—for gender-based classifications.[88] Solidifying and strengthening Craig, the Court’s use of closer scrutiny in similar cases, such as J.E.B. v. Alabama[89] and United States v. Virginia,[90] established that not only must the government’s interest be important, there must be an “exceedingly persuasive justification” for the government’s action to survive scrutiny.[91] Many legal scholars consider this “extremely persuasive” review more demanding than intermediate scrutiny but not quite as demanding as strict scrutiny.[92]

Additionally, the Court overtly investigates the justification for any gender-based discrimination and incorporates that into its analysis. For example, the Court is more likely to permit state gender-based action grounded in physical or biological differences than that grounded in societal gender norms. For example, in Geduldig v. Aiello,[93] the Court held that excluding disability benefits for injuries resulting from pregnancy complications was not unconstitutional as the distinction was based solely on physical disparities between the sexes and was thus “noninvidious.”[94] On the other hand, if the classification promotes a gender-based stereotype, (e.g., denying women benefits due to an outdated idea of their role as “homemakers”), the Court is less likely to find that the action passes scrutiny.

iii. Equal Protection and the Draft

In 1981, the Supreme Court decided Rostker v. Golberg.[95] Several men had filed suit against the Selective Service Director, challenging the constitutionality of the Military Selective Service Act (MSSA).[96] The question presented to the Court was whether the MSSA violated the Fifth Amendment to the United States Constitution by “authorizing the President to require the registration for the draft of males and not females.”[97]

In analyzing the law’s constitutionality, then-Justice Rehnquist, writing for the majority, began by explicitly giving broad deference to Congress’s Article I power to raise and regulate armies and navies.[98] The Court admitted that it “lack[ed] . . . competence” in the realm of military composition, training, and equipping,[99] and that “[t]he responsibility for determining how best our Armed Forces shall attend to [the business of fighting wars] rests with Congress and with the President.”[100]

The Court considered the distinct treatment of men and women in the Military in light of the considerable deference afforded to Congress on the MSSA and the President on military organization. In 1981, women, even those who volunteered, were restricted from myriad jobs in the Military: for example, they could not “be assigned to duty on vessels or in aircraft that are engaged in combat missions.”[101] Gender-based disparate treatment, the Court held, was not a result of “archaic and overbroad generalizations, but instead, the demonstrable fact that male and female line officers . . . are not similarly situated with respect to opportunities for professional service.”[102]

Furthermore, the Court quoted a Senate report that offered that the “principle that women should not . . . engage in combat is fundamental, and enjoys wide support amongst our people.”[103] Rehnquist supported this conclusion by examining the House and Senate’s consideration and rejection of the idea of female registration twice, both in funding for the Selective Service Agency and explicitly in both Houses’ Armed Services Committees.[104] Moreover, the majority cited Department of Defense leadership as universally supportive of the notion that women should not intentionally be assigned to combat roles.[105]

Then the Court pivoted to registration’s purpose: the draft. The Court says we must view the registration requirement in light of the draft “since under the MSSA induction is interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing a pool for the draft.”[106] This sets up the true theory of the majority’s case: “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.”[107] In essence, if we instituted a draft, we would need people in combat and other strategic roles; if women are barred[108] from serving therein, the United States need not draft them, and if the country need not draft them, they need not register.[109]

Because women could not serve in specific roles—including some of the most arguably vital roles, such as combat infantry for ground forces or submariners as nuclear deterrents—the distinction with which the draft treated the sexes was merited.[110] The government’s interest in creating a pool of “combat ready” troops through the Selective Service process was clearly an important—if not fundamental—government interest,[111] and the restriction on women from the draft was held to be “closely” related to the furtherance of the important interest.[112] In sum, as long as opportunities to serve differed by gender, a draft that differed by gender would be constitutional.

IV. Today’s Fighting Force

Today’s Military no longer resembles the fighting force of 1981. Since 2015, women can now serve in any and all billets if deemed physically qualified. As a result of this recent change, the Court’s giving its blessing to a single-sex selective service registration can no longer stand.

i. Changing the Rules

In 1994, the Military issued the Direct Ground Combat Definition and Assignment Rule. The 1994 rules prevented women from holding specific roles—commonly referred to as billets or military occupational specialties, “MOSs” for short. The rule states in part that:

[s]ervice members are eligible to be assigned to all positions for which they are qualified, except that women shall be excluded from assignment to units below the brigade level whose primary mission is to engage in direct combat on the ground.[113]

According to a February 2012 Defense Department Report to Congress reviewing the rules almost two decades later, these restrictions were put in place “due to permissible restrictions such as co-location, direct ground combat, privacy and berthing, special operations or long-range reconnaissance.”[114] The same report, however, modified those rules, “opening up over 14,000 positions previously closed to women.”[115] Still, as of September 2012, 20 of the Army’s 438 MOSs remained off-limits to women.[116]

More change was to come. In January 2013, Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey issued a joint memorandum entitled Elimination of the 1994 Direct Ground Combat Definition and Assignment Rule.[117] The memorandum “rescinded effective immediately” the prohibitions, mandating that “[c]urrently closed units and positions . . . be opened by each relevant Service” and requiring Military Departments submit detailed plans for implementation by May 15, 2013 and execute them by January 1, 2016.[118] Finally, the directive left room for requests for exceptions, though such requests would require approval from both the Chairman and Secretary.[119]

Fast-forward nearly three years. The current Secretary of Defense, Ashton Carter, finished executing a plan, initiated by former Secretary Panetta and Chairman Dempsey, to remove the restrictions on women’s participation in combat roles across the services.[120] The Secretary began by tracing the history and his underlying thinking: “Anyone, who can meet operationally relevant and gender neutral standards, regardless of gender, should have the opportunity to serve in any position.”[121] Importantly, Carter proffered scientific data collected by the Military Services and Special Operations community—that would be made available to the public—to buttress his thinking, which “revealed concrete ways to help mitigate [a higher] injury rate [amongst women participating in ground combat training] and the impact to individuals and the teams in which they operate,” blunting arguments that women would substantially hurt their units’ fighting capacities.[122] Finally, the Secretary addressed concerns of culture, both internally and externally, suggesting that the military is “prepared to meet this challenge” of culture shift, but that it would remain vigilant—as it has in the past—of situations where “the presence of women in some units may complicate cooperation with allies and partners who are culturally opposed to working with women.”[123]

ii. Applying Today’s Rules To Rostker

Even in the aforementioned February 2012 Defense Department Report to Congress, the DoD maintained the position that Rostker was correctly decided because:

[w]omen are still restricted from assignment to units below the battalion level whose primary mission is to engage in direct ground combat and will continue to be excluded from assignments in closed military occupational specialties, such as infantry. Thus, men and women are not similarly situated for purposes of the Act.[124]

However, in light of the enormous changes in the roles of women, Rostker will likely no longer stand.

In Rostker, the majority’s theory rested on the distinct treatment of men and women in the military as justifying the distinct treatment of men and women with respect to selective service registration.[125] Then-Justice Rehnquist began the opinion by tracing Congress’s opinions, then military leadership, and, finally, the purpose of the draft itself. Now, the fundamental premise of the majority’s argument no longer stands. Women are legally permitted to serve in combat. (And have already!) Thus, they are now amongst the pool of citizens who could serve in any role in the event of a draft.[126] Rehnquist’s theory is out of step with today’s reality. And with the Senate’s approval of an NDAA with a female registration provision[127] and the House Armed Services Committee’s approval[128]—despite the House at large never voting on the issue due to the Rules Committee’s bait and switch[129]—Rostker’s pivot to Congressional support is similarly undermined. More, Defense Department leadership nearly universally approved the switch. Only one of the four Service Chiefs requested even a partial exemption.[130]

Finally, let us look again to the draft, which the Court recognized as the purpose of the MSSA. Justice Rehnquist’s opinion recited how female inductees would, according to Congress, “be positively detrimental to the important goal of military flexibility.”[131] Whether he had Rostker in mind or not, Secretary Carter alluded to the value of including women in increasing the military’s talent pool and flexibility: “To succeed in our mission of national defense, we cannot afford to cut ourselves off from half the country’s talents and skills.  We have to take full advantage of every individual who can meet our standards.”[132] Secretary Carter’s statement directly undercuts Justice Rehnquist’s “positively detrimental” argument and frustrates his purpose-driven analysis.

Unquestionably, implementing a draft via a selective service registry that includes women will create some administrative challenges. Provisions for single motherhood, for example, will have to be worked out. But these sorts of challenges are insufficient to overcome the scrutiny a gender-biased draft would call for. So while the House and Senate squabble to decide whether or not the provision should remain in the next iteration of the NDAA, they should rest assured that the judiciary may well end up making the decision for them.

V. Conclusion

The Roskter decision may have been correct in its time, reflecting the underlying facts and prevailing military wisdom of its time. But times have changed. Women have served with as much honor, discipline, and valor as their male counterparts, undergirding the Obama Administration’s decision to officially open combat positions to women. The prior jurisprudence on the equal protection implications of a male-only selective service registry rested on Congress’s disparate treatment of the sexes in the military. Given women’s equal treatment in military service, the courts will be unable to sustain a single-sex selective service registration requirement under the prescribed intermediate scrutiny standards.

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[1] National Defense Authorization Act for Fiscal Year 2017, S. 2943, 114th Cong. (as passed by Senate, June 14, 2016).

[2] Id. at § 591 (“Section 3 of the Military Selective Service Act (50 U.S.C. § 3802) is amended [to insert]:

“(b) (1) The duty to register imposed on male citizens and persons residing in the United States by subsection (a) shall apply to female citizens of the United States and female persons residing in the United States who attain the age of 18 years on or after January 1, 2018.

“(2) The responsibilities and rights of female registrants under this Act shall be the responsibilities and rights of male registrants under this Act, and shall be subject to such terms, conditions, and limitations as are applicable under the provisions of this Act to similarly situated male registrants.

“(3) Any reference in this Act to a registrant or other person subject to the duties, responsibilities, and rights of a registrant under this Act shall be deemed to refer to female citizens of the United States and female persons residing in the United States registering pursuant to this subsection.”)

[3] Jennifer Steinhauer, Senate Votes to Require Women to Register for the Draft, N.Y. Times (June 14, 2016), http://www.nytimes.com/2016/06/15/us/politics/congress-women-military-draft.html [https://perma.cc/ZWA6-BVKR].

[4] Id.

[5] Id. The final vote count was 85-13 (with 2 senators not voting). 162 Congr. Rec. S3841 (daily ed. June 14, 2016) (statement of the Presiding Officer recording the vote’s roll call).

[6] See Steinhauer, supra note 3.

[7] Rebecca Kheel, Defense bill would require women to register for draft, Hill (Apr. 27, 2016), http://thehill.com/policy/defense/277962-defense-bill-would-require-women-to-register-for-draft [https://perma.cc/UM5E-RP7E]. Interestingly, Rep. Hunter voted against his own amendment. See Steinhauer, supra note 3. Before introducing the amendment, though, Hunter stated his opposition to the idea generally, but specifically cited his desire to stir national conversation on the topic as his reasoning to introduce the Amendment: “‘If he didn’t do this in the committee and spur the national debate, who was going to do it?’ Joe Kasper, Mr. Hunter’s chief of staff, said. ‘So, mission accomplished.’” Id.

[8] Leo Shane III, House drops plans to make women register for draft, Mil. Times (May 17, 2016), http://www.militarytimes.com/story/military/2016/05/17/ndaa-house-women-draft-stripped/84481376/ [https://perma.cc/XC8S-ZS7V].

[9] See, e.g., Steinhauer, supra note 3.

[10] Goldberg v. Rostker, 509 F. Supp. 586, 605 (E.D. Pa. 1980), rev’d, 453 U.S. 57 (1981).

[11] Rostker v. Goldberg, 453 U.S. 57 (1981).

[12] Id. at 83.

[13] See Memorandum from Ashton Carter, Sec’y, Dep’t of Def., to the Chiefs of the Military Servs., Implementation Guidance for the Full Integration of Women in the Armed Forces 1 (Dec. 3, 2015), http://www.defense.gov/Portals/1/Documents/pubs/OSD014303-15.pdf [https://perma.cc/UW23-CNVL] [hereinafter 2015 Memo].

[14] See Ashton Carter, Sec’y, Dep’t of Def., Press Briefing at the Pentagon Briefing Room (Dec. 3, 2015) (transcript available at http://www.defense.gov/News/News-Transcripts/Transcript-View/Article/632578/department-of-defense-press-briefing-by-secretary-carter-in-the-pentagon-briefi [https://perma.cc/HG4L-8XPK]) [hereinafter Carter Press Briefing Transcript].

[15] Id.

[16] Id. (“[B]y that time the issue of women in combat per se was no longer a question.  It was a reality, because women had seen combat throughout the wars in Iraq and Afghanistan, serving, fighting, and in some cases making the ultimate sacrifice alongside their fellow comrades in arms.”).

[17] Michael J. Malbin, Conscription, the Constitution, and the Framers: An Historical Analysis, 40 Fordham L. Rev. 805, 807 (1972).

[18] Id. at 810 (citing I The Records of the Federal Convention 19 (Maxwell Farrand ed. rev. ed. 1937)).

[19] The Federalist No. 23, at 114 (Alexander Hamilton) (Lawrence Goldman, ed., 2008).

[20] The Revolutionary War was fought under the Articles of Confederation, so mandatory conscription could only have been accomplished through individual states. This did not occur.

[21] The President was unsuccessful thanks in no small part to then-Representative Daniel Webster’s impassioned speech on the floor of the House. See Holmes v. United States, 391 U.S. 936, 939 n.3 (1968) (Douglas, J., dissenting from denial of certiorari) (“Daniel Webster strenuously argued in the House of Representatives that the draft bill was unconstitutional. He noted that the draft power claimed for Congress by Madison and Monroe was not limited to time of war or invasion and would permit a draft of men for any type of military service, at home or abroad, at the discretion of the Government. (Daniel Webster, Speech Against the Conscription Bill, House of Representatives, December 9, 1814, in L. Schlissel, ed., Conscience in America 67 (1968). And see 86 Cong. Rec. 5210). ‘Who will show me,’ he argued, ‘any constitutional injunction, which makes it the duty of the American people to surrender every thing [sic] valuable in life, & even life itself, not when the safety of their country and its liberties may demand the sacrifices, but whenever the purposes of an ambitious & mischievous Government may require it? Sir, I almost disdain to go to quotations & references to prove that such an abominable doctrine has no foundation in the Constitution of the country.’ (Id., at 68.)”).

[22] John Whiteclay Chambers II, The Oxford Companion to American Military History 181 (1999).

[23] Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877, at 32–33 (1988).

[24] E. Merton Coulter, The Confederate States of America 1861–1865, at 315–18 (1950).

[25] Selective Service Act, H.R. 3545, 65th Cong. (1917) (enacted).

[26] 245 U.S. 366 (1918).

[27] Id. at 375 (citing Selective Service Act, H.R. 3545).

[28] Id. at 377.

[29] Id. at 381.

[30] Id. at 379–80.

[31] See id. at 389.

[32] Id. at 390.

[33] See Induction Statistics, Selective Serv. Sys., https://www.sss.gov/About/History-And-Records/Induction-Statistics [https://perma.cc/H6TV-G4Z4] (last visited July 1, 2016).

[34] Id.

[35] 320 U.S. 549 (1944).

[36] Id. at 550.

[37] Id. at 554.

[38] Id. at 554–55.

[39] See Induction Statistics, supra note 33.

[40] 346 U.S. 1 (1953).

[41] Id. at 8.

[42] Id.

[43] Id. at 9.

[44] 345 U.S. 83 (1953).

[45] Id. at Syllabus (citation omitted) (citing 50 U.S.C.App. § 454(i)).

[46] Id.

[47] Id.

[48] Id. at 95.

[49] Id. at 93–94.

[50] Compare, e.g., United States v. O’Brien, 391 U.S. 367, 382 (1968) (refusing to strike down a law that permits the government to prosecute those who burn draft cards in protest because the government had an interest in “the smooth and efficient functioning of the Selective Service System”) with Clay v. United States, 403 U.S. 698 (1971) (overturning Muhammad Ali’s conviction as a conscientious objector). In the latter case, although the Court cited a technical error as its justification, Ali’s conviction on merits alone would have garnered significant—albeit not a majority—of support from the Court. See Bob Woodward & Scott Armstrong, The Brethren: inside the Supreme Court 157–60 (1981).

[51] Proclamation 4771, Registration Under the Military Selective Service Act, 45 Fed. Reg. 45,247 (July 2, 1980).

[52] Benefits and Penalties, Selective Serv. Agency, https://www.sss.gov/Registration/Why-Register/Benefits-and-Penalties [https://perma.cc/B9LY-QJS5] [hereinafter Benefits and Penalties] (last visited Jul. 1, 2016). Failure to register is a felony punishable by up to five years of imprisonment, a $250,000 fine, or both. Id. While prosecution is extremely unlikely—and has not used been since 1986 because such trials have proven counterproductive, see Steven Nelson, Gender-Neutral Draft Registration Would Create Millions of Female Felons, U.S. News (May 3, 2016), http://www.usnews.com/news/articles/2016-05-03/gender-neutral-draft-registration-would-create-millions-of-female-felons [https://perma.cc/RU9H-E3WM]—failure to register can also prevent one from obtaining federal benefits such as citizenship for aliens, federal financial aid or government employment. See Benefits and Penalties, supra.

[53] See, e.g., Universal National Service Act, H.R. 5741, 111th Cong. (2010).

[54] Pelosi says no to draft legislation, CNN (Nov. 20 2006), http://www.cnn.com/2006/POLITICS/11/20/rangel.draft/ [http://perma.cc/9ST2-T5AY]; Sara Kugler, VA Head: Draft Beneficial to Society, CBS (Dec. 22, 2006), https://web.archive.org/web/20080515235056/http://www.cbsnews.com:80/stories/2006/12/22/ap/national/mainD8M5I0IO0.shtml [http://perma.cc/B5MK-E82P]; Bush War Adviser Supports Considering a Military Draft, FOX News (Aug. 11, 2007), http://www.foxnews.com/story/2007/08/11/bush-war-adviser-supports-considering-military-draft.html [http://perma.cc/TM98-3LHA].

[55] These are the proverbial “it’s not them or their sons fighting” argument.

[56] See Part I, supra.

[57] U.S. Const. Amend. 14, § 1.

[58] See Bolling v. Sharpe, 347 U.S. 497, 498 (1954).

[59] Id. at 499. This concept would later be known as “reverse incorporation,” wherein the Federal government incorporated Equal Protection norms through the 5th Amendment. See, e.g., Peter J. Rubin, Essay, Taking Its Proper Place in the Constitutional Canon: Bolling v. Sharpe, Korematsu, and the Equal Protection Component of Fifth Amendment Due Process, 92 Va. L. Rev. 1879, 1883 (2006).

[60] Bolling, 347 U.S. at 499.

[61] Id. at 500.

[62] Id. at 498.

[63] United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

[64] Id; see also, e.g., Hirabayashi v. United States, 320 U.S. 81 (1943) (establishing racial classifications as suspect); Korematsu v. United States, 323 U.S. 214 (1944) (applying strict scrutiny to racial classifications); Graham v. Richardson, 403 U.S. 365 (1971) (upholding strict scrutiny for state actions regarding alienage); Lyng v. Castillo, 477 U.S. 635 (1986) (holding that the trait of one in a suspect class must be immutable and or high visible); Grutter v. Bollinger, 539 U.S. 306 (2003) (applying strict scrutiny for “government racial classifications”).

[65] City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

[66] Washington v. Davis, 426 U.S. 229, 241 (1976).

[67] See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–68 (1977). See also

Washington, 426 U.S. at 242 (holding that a discriminatory purpose can be inferred when a legislation’s impact “bears more heavily on one race than another); Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (finding that the administration and execution of a statute was overtly discriminatory, and so the Court did not need to ask if the statute itself was discriminatory); cf. Lane v Wilson, 307 US 268, 277 (1939) (holding voter restrictions passed after Guinn v. United States to restrict African American voters unconstitutional under the 15th Amendment, stating “the means chosen as substitutes for the invalidated ‘grandfather clause’ were themselves invalid under the Fifteenth Amendment. They operated unfairly against the very class on whose behalf the protection of the Constitution was here successfully invoked”); Guinn v. United States, 238 U.S. 347, 365 (1915) (finding grandfather clause exemptions to literacy tests to be unconstitutional under the 15th Amendment).

[68] See Jason M. Scaggs, Justifying Gender-Based Affirmative Action Under United States v. Virginia’s Exceedingly Persuasive Justification Standard, 86 Cal. L. Rev. 1169, 1172 (1998). Rational basis review provides broad leeway for the government to act where there are non-suspect groups affected by a given action. Examples of government interests that meet this threshold include economic, pedagogical, and safety-related goals. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955); Railway Express Agency v. New York, 336 U.S. 106 (1949); U.S. v. Virginia, 518 U.S. 515 (1996).

[69] See, e.g., Strauder v. W. Va., 100 U.S. 303, 304 (1879).

[70] See, e.g., Bradwell v. State, 83 U.S. 130, 139 (1873) (upholding the denial of bar admission to women.)

[71] In re Bradwell, 55 Ill. 535 (1869), aff’d sub. nom Bradwell v. People of State of Illinois, 83 U.S. 130, 132 (1872).

[72] Bradwell, 83 U.S. at 141 (1872) (Bradley, J., concurring).

[73] Interestingly, Ms. Bradwell, the women barred from the law’s practice, did not re-apply to the Illinois State bar. Ms. Alta M. Hulett drafted the legislation, spoke on the floor of the Illinois State House to lobby for its passing, and become Illinois’s first female lawyer after passing the bar in 1873 two days after her nineteenth birthday. Ms. Bradwell was ultimately licensed in 1890, “when the state supreme court, on its own motion, reconsider[ed] her 1869 application and grant[ed] the license nunc pro tunc, backdating its effect to the original date.” Lisa Small, A Timeline of Women’s Legal History in the United States (1998), http://wlh-static.law.stanford.edu/articles/cunnea-timeline.pdf [https://perma.cc/2FU4-6EV7]; see also Bar None: 125 Years of Women Lawyers in Illinois, Chicago Bar Association, https://www.chicagobar.org/barnone/sect2.html [https://www.chicagobar.org/barnone/sect2.html] (last visited July 24, 2016).

[74] For an excellent history of Ms. Anthony’s strategy, vote and subsequent arrest, see The Trial of Susan B. Anthony, Fed. Judiciary Ctr., http://www.fjc.gov/history/home.nsf/page/tu_anthony_narrative.html [https://perma.cc/8JKC-FNJ2] (last visited July 24, 2016).

[75] Minor v. Happersett, 88 U.S. 162, 171 (1874).

[76] Goesaert v. Cleary, 335 U.S. 464, 465 (1948).

[77] Id. at 465–66.

[78] Id. at 466.

[79] 404 U.S. 71 (1971).

[80] See Scaggs, supra note 69 at 1172.

[81] Id.

[82] 411 U.S. 677 (1973).

[83] See id. at 688; id. at 687 (“Congress has itself manifested an increasing sensitivity to gender-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of ‘race, color, religion, sex, or national origin.’ Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act ‘shall discriminate . . . between employees on the basis of sex.’” (internal citations omitted)).

[84] Id. at 686. It is worth noting that Justice Brennan frequently compares gender-based classifications to those based on race. Both gender and race are immutable characteristics that are classifiable.

[85] See Scaggs, supra note 69 at 1172; id. at 1172 n. 19 (“Justice Powell’s concurring opinion, joined by Chief Justice Burger and Justice Blackmun, agreed that the statutes constituted unconstitutional discrimination against servicewomen, but found it ‘unnecessary for the Court in this case to characterize sex as a suspect classification.’”).

[86] 429 U.S. 190 (1976).

[87] Id. at 197–98.

[88] See id. at 210 (holding that a law prohibiting males aged 18-21 from purchasing “nonintoxicating alcohol” did not substantially relate to the government’s purpose in enhancing traffic safety.)

[89] 511 U.S. 127 (1994) (holding peremptory strikes solely on the basis of sex violative of the Equal Protection Clause because such discrimination does not substantially further the state’s legitimate interest in achieving a fair and impartial trial).

[90] 518 U.S. 515 (1996) (invalidating the Virginia Military Institute’s single-sex admissions policy and striking down its proposed alternative remedy of an allegedly parallel institution because the alternative would not have offered a congruent education or experience).

[91] J.E.B., 511 U.S. at 136.

[92] See Scaggs, supra note 69, at 1187–88.

[93] 417 U.S. 484 (1974).

[94] Id. at 496.

[95] 453 U.S. 57 (1981).

[96] Id at 61–64.

[97] Id. at 59.

[98] Id. at 64–65.

[99] Id. at 65 (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).

[100] Id. at 71, citing U.S. Const., art. I, § 8, cls. 12–14 & art. II, § 2, cl. 1. It is also an interesting historical note that of the nine men on the Rostker Court (Justice O’Connor would join the Court the month after the decision was handed down), seven had served in the military, including multiple high-ranking officers and decorations conferred amongst them. Despite—or maybe because of—the depth of military experience amongst the Justices, they still heavily deferred to the other branches on military matters. Compare that to today’s Court, where none of the sitting Justices—nor the President’s nominee—have any experience in uniform.

[101] See id. at 76 (quoting 10 U.S.C. § 6015 (1976)).

[102] Id. at 67 (quoting Schlesinger v. Ballard, 419 U.S. 498, 508 (1975)).

[103] Id. at 77 (quoting S. Rep. No. 96-826 at 157 (1990), reprinted in 1980 U.S.C.C.A.N. 2647).

[104] Id. at 72–74 (“Hearings held by both Houses of Congress in response to the President’s request for authorization to register women adduced extensive testimony and evidence concerning the issue . . . . [The Armed Services Committees’ decisions not to enact a gender-neutral draft] establishes that the decision to exempt women from registration was not the “‘accidental byproduct of a traditional way of thinking about females.’) (citing Califano v. Webster, 430 U.S. 313, 320 (1977)).

[105] Id. at 80–81.

[106] Id. at 75.

[107] Id. at 77.

[108] Technically, only the Air Force and Navy had statutory restrictions; the Army and Marine Corps established it through executive policy. See id. at 76.

[109] Rehnquist cites the fact that female volunteers would sufficiently fill the needs of the military in a national emergency that called for a draft.  Id. at 81.

[110] Id. at 67–68.

[111] Id. at 70.

[112] Id. at 79.

[113] Nat’l Women’s Law Ctr., Assignment Policies for Military Women: History and Status (2016), http://nwlc.org/wp-content/uploads/sites/17/2015/06/Women-in-Military-Assignments-A-Brief-History_REVISED.March-2016-1.pdf [https://perma.cc/BC8Q-HWSP].

[114] Dep’t of Def., Report to Congress on the Review of Laws, Policies and Regulations Restricting the Service of Female Members in the U.S. Armed Forces 2 (2012), handle.dtic.mil/100.2/ADA556468 [https://perma.cc/KQX6-QBB5].

[115] Memorandum from Leon Panetta, Sec’y, Dep’t of Def., & General Martin Dempsey, Chairman of the Joint Chiefs of Staff General Martin Dempsey to the Chiefs of Mil. Servs. 1 (Jan. 24, 2013), http://www.defense.gov/news/WISRJointMemo.pdf [https://perma.cc/52SA-XMHU] [hereinafter 2013 Memo].

[116] See Dep’t of Def., supra note 114 at 7. These included infantry, armor, or field engineer.  Id. For an excellent and exhaustive history of the interim studies and reports made on women in the military, see generally Nat’l Women’s Law Ct., supra note 112.

[117] 2013 Memo, supra note 115.

[118] Id. at 1.

[119] Id. at 1–2.

[120] Id.

[121] Id.

[122] Id. at 2.

[123] Id. at 2–3.

[124] Dep’t of Def., supra note 114 at 15.

[125] Rostker v. United States, 453 U.S. 57, 67 (1981) (citing Schlesinger v. Ballard, 419 U.S. 498, 506 (1975)).

[126] Aside from medical restrictions or occupational or philosophical exemptions already in place.

[127] See supra notes 1, 2 and accompanying text.

[128] See Kheel, supra note 7 and accompanying text.

[129] See Shane III, supra note 8 and accompanying text.

[130] The current Chairman of the Joint Chiefs, General Joseph F. Dunford, who was the Commandant of the Marine Corps at the time of this directive, was the only Service Chief to request such an exception, and only did so specifically for combat Marines. Secretary Ashton Carter, Secretary Panetta’s successor, denied General Dunford’s request. See Carter Press Briefing Transcript, supra note 14.

[131] Rostker v. United States, 453 U.S. 57, 81–82 (1981).

[132] See Carter Press Briefing Transcript, supra note 13.