Does the Constitution Require Drafting Women?

President Ford ended draft registration in 1975, and President Carter restarted it in 1980. But by then feminists, the media and even Carter himself was pushing the Equal Rights Amendment for a unisex society, energizing a challenge to the draft as discriminatory.

ERA was never ratified, but that did not stop a district court from invalidating the all-male draft registration as unconstitutional sex discrimination. The case went directly the Supreme Court on appeal.

In a narrow 6-3 verdict, the Supreme Court upheld the constitutionality of an all-male draft. Rostker v. Goldberg, 453 U.S. 57 (1981). Recently a new legal challenge to an all-male draft began in connection with the expected invasion of Iraq, and it is worth revisiting Rostker.

Justice Rehnquist wrote the decision, assigned to him by Chief Justice Burger (whom Rehnquist later replaced). Rehnquist procured the backing of liberal Justices Blackmun and Stevens, a feat unimaginable a decade later.

One rationale for the Rostker decision remains true today, while another basis is gone. The enduring rationale is the enormous deference by the Court to military decisions, as in declining Michael New’s appeal to forcibly serving under U.N. command.

Maximum deference can be explained by the dependence of the Supreme Court on Congress for its authority. Congress can remove jurisdiction by the courts over the military or other subject matter.

Prior to the Rostker decision, there were published reports that Congress had the votes to strip the Court of authority if it invalidated an all-male draft. Justice Blackmun and others may have supported Rostker to avoid a defrocking of the Court, a movement that gained strength in outrage over Roe v. Wade and school prayer decisions.

The other rationale for the Court’s decision, however, is more tenuous today. In 1981, women were completely barred from combat, and this justified excluding them from draft registration.

“This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration,” the Court held. “Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.”

But eight years of feminist control under the Clinton Administration has muddied these waters considerably. Even the first President Bush used women in combat in Iraq, and some were captured and reportedly sexually abused as prisoners of war.

Justice Brennan, who once fell just a few votes short of engrafting by judicial fiat an Equal Rights Amendment into the Equal Protection Clause, joined both dissents in Rostker. This was unconstitutional sex discrimination, in his view, to require only men to register for the draft.

Rostker remains, to coin an increasingly voguish expression, “settled law.” It is constitutional to force someone to die for his country, even for a war he opposes, and it is constitutional to impose this ultimate burden on only young males.