Over at The Skeptical Libertarian, Daniel Bier observes that the Pentagon’s recent decision to lift the bar on women in combat roles may place previous Supreme Court rulings regarding gender-based Selective Service on shaky ground:
In 1981, the District Court for the Eastern District of Pennsylvania ruled that the practice did in fact violate the 5th Amendment, and it prohibited further registration under the Act. The government appealed to the Supreme Court. In the 6-3 decision in Rostker v. Goldberg, the Court ruled in favor of the Selective Service. Justice William Rehnquist wrote the majority opinion defending the discriminatory practice, saying, “Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.”
The Court ruled that the gender-based distinction was not unconstitutional because the draft was designed to recruit soldiers for combat duties, and because the military did not and could not place women in combat, the law was consistent in excluding them from registration. The reason Congress excluded women from registration is not because they are women, said Rehnquist, but rather because of the unrelated regulation prohibiting them from serving in combat roles.
With the Pentagon’s decision to remove the ban on women in combat, the Court’s logic no longer holds, and the government will find itself once again afoul of the Constitution, based on the decision that saved the Selective Service Act the last time. If the law faces a legal challenge, the courts would likely have to once again issue an injunction stopping Selective Service registration, unless Congress fixes the law to include the now combat-approved women.
I think this analysis is sound. Rehnquist’s now-infamous argument in Goldberg was that women are not “similarly situated” with respect to combat duty, such that Congress could reasonably decide that a male-only draft system was in the national interest. However, with the ban now being lifted, there is one extraordinarily important sentence in the case that places its core holding in present jeopardy:
[T]he Constitution requires laws to treat similarly situated individuals equally, not that Congress “engages in gestures of superficial equity.”
By lifting the ban, the Pentagon has essentially destroyed the notion that men and women are not similarly situated with respect to military service. That places gender-specific Selective Service within the cross-hairs of Rehnquist’s decree: if the Constitution does require laws to treat similarly situated individuals equally, and it turns out that men and women are in fact similarly situated with respect to combat duties, then gender specific Selective Service becomes difficult to justify under the Goldberg framework.
If Goldberg was struck down, then it would likely mean that we’d see a gender-neutral Selective Service. This would of course be a historic moment for gender equality. Justice Marshall, in his dissent in Goldberg, chastized the Court for “placing its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women[,]’”—namely, that they are fragile and thus ill-suited for ‘man’s work,’ such as combat. Both Marshall and Brennan argued that by excluding women from a fundamental civic obligation like military service, the majority was essentially incorporating misogynistic gender-based assumptions about the abilities of women. This, of course, invokes some of the objections contained in the Declaration of Sentiments, wherein the Suffragettes noted the injustice of laws that rendered women “civilly dead,” and laws which “made [women], morally, an irresponsible being[.]” A Selective Service that affects only males, Marshall argued, tends to invoke these evils by infantilizing women. As Justice Marshall noted in his Goldberg dissent:
Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing sexual stereotypes about the `proper place’ of women and their need for special protection… . Where, as here, the [Government’s] … purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the [Government] cannot be permitted to classify on the basis of sex.
With the “similarly situated” logic of Goldberg displaced, I think there is solid ground to suppose that Justice Marshall’s logic would carry the day in a future legal challenge. With the ban on women in military combat roles lifted, we may see a universal Selective Service sometime in the near future.