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Sign Her Up? Women and Selective Service in a Post-Rostker v. Goldberg Era

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The Selective Service System was first adopted in 1917 prior to the United States’ participation in World War I.[1] After the country experienced two global wars, the Military Selective Service Act (MSSA) was reenacted in 1948 with the goal of maintaining America’s armed forces.[2] For the purpose of sustaining “adequate armed strength” to “insure the security of this Nation,” adult males are required to register for military service.[3] Given recent events taken by the Defense Secretary, the applicability of this statute may be extended to adult females as well.

In December 2015, Defense Secretary Carter opened up all military positions to women, including combat and special operations positions.[4] This historic move that is currently in the process of being implemented among America’s armed forces puts forth the question of whether all adult female citizens will be required to register for military service. This question had been answered in the past through Rostker v. Goldberg.[5]

This case was brought to the Supreme Court after plaintiffs, several men who were subject to registration and subsequent entry into the armed services, filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the constitutionality of MSSA, particularly for the gender-based discrimination.[6] In 1980, the District Court found MSSA unconstitutional on the grounds that it violated the Due Process Clause of the Fifth Amendment. Utilizing the “important government interest” test from Craig v. Boren, the District Court struck down MSSA and held that having women registrants available would increase flexibility in the armed forces; thus, the court rejected Congress’ contention that registering women would result in “inconsistent positions.”[7]

The Supreme Court reached a different conclusion and reversed the District Court’s decision in 1981. Citing a Senate Report discussing the possibility of registering women, the Court reasoned that both Houses of Congress found that “[if] mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements.”[8] Since women as a group were ineligible for combat positions, the exemption of women from registration in MSSA was deemed closely related to Congress’ purpose in authorizing and limiting registration to men, and did not violate the Due Process Clause.[9]

However, since all positions without exclusion are now available to women, the Supreme Court’s reasoning in Rostker no longer applies. This opens up the possibility to require women to register like their male counterparts, and presents opportunities for women to participate in physically demanding positions, including infantry and Special Operations jobs like the Navy SEAL and Green Beret.[10] Although registration is merely the first step and does not necessarily mandate service, sending eighteen and twenty year old women into combat is an uncomfortable topic to talk about.[11]

Although the topic is difficult to discuss, key figures have spoken in the affirmative about requiring female citizens to register. General Mark Milley, chief of staff of the Army, and General Robert Neller, the Marine Corps commandant, stated that they were on board with the change during a Senate Armed Services Committee hearing discussing the complete integration of women in the military on February 2, 2016.[12] Furthermore, the Defense Department intends on beginning associated changes in training and evaluation of women in combat roles by April 1 this year.

Needless to say, whether one sees this as a civic duty that women must fulfill or placing women in unnecessary danger, imposing a requirement for women in the United States to register would be significant moment in American military history.

[1] Dan Lamothe, Army and Marine Corps chiefs: It’s time for women to register for the draft, The Washington Post (February 2, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/02/army-and-marine-corps-chiefs-its-time-for-women-to-register-for-the-draft/

[2] Selective Service Act of 1948, Publ. L. No. 80-759, 62 Stat. 604 (1948).

[3] 50 U.S.C. § 3801 (2015).

[4] Supra Note 1.

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

[6] Id. at 61.

[7] Craig v. Boren, 429 U.S. 190, 197 (1976) (quoting Reed v. Reed which held that in order to withstand constitutional challenge “classifications by gender must serve important governmental objectives and must be substantially related to achieve those objectives”); Rostker, 453 U.S. at 63.

[8] Rostker, 453 U.S. at 76 (quoting S. Rep. No. 90-826, at 160 (1980)).

[9] Id. at 77-79.

[10] Supra note 1.

[11] Dan Lamothe, There’s a rift opening on how the U.S. should handle women and military drafts, The Washington Post (February 5, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/05/theres-a-rift-opening-on-how-the-u-s-should-handle-women-and-military-drafts/?tid=sm_tw

[12] Supra note 1.


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