Central European University
Although there was brief consideration of drafting women nurses during WWII, women have never been required to register with the Selective Service System, and have never been drafted. However, women have been actively recruited into the All Volunteer Force (AVF) since the mid-1970s.
Commitment to maintaining a male-only draft system was reaffirmed in 1981 when the Supreme Court determined that women cannot register with Selective Service. President Jimmy Carter had requested in 1980 to renew draft registration, and to incorporate women’s registration. This prompted Congress to hold hearings on women’s registration, at the end of which Congress determined that, “a male-only system best serves our national security.” Many members of Congress were disturbed by the effect women’s registration could have upon the American family. However, the final formal argument against women’s registration was that since women were barred from combat positions, registering women would place an unreasonable administrative burden on the military, and would decrease military flexibility.
In response to the renewal of a male-only registration, three male plaintiffs filed suit in Pennsylvania, claiming that all-male draft registration was unconstitutional on the grounds of sex discrimination. They had at their disposal a new legal architecture to make their case. Just a few years earlier, the judicial doctrine of intermediate scrutiny was fully articulated, which views sex discrimination as a violation of the Fifth and Fourteenth Amendments. Since then, a gender-based distinction within state and federal law can pass intermediate scrutiny if it, 1) serves important governmental objectives, and 2) is substantially related to achievement of those objectives.
The Eastern District Court of Pennsylvania concurred with the three male plaintiffs that women’s draft registration in fact increased military flexibility and therefore could not pass intermediate scrutiny. Just days before the new draft registration was set to start, the District Court ruled that male-only registration was unconstitutional.
The Selective Service System’s Director, Bernard Rostker, quickly appealed the District Court’s decision so that male-only registration could proceed, and the Supreme Court reviewed the case in Rostker v. Goldberg in March 1981. Persuaded that male-only registration passed intermediate scrutiny, the Supreme Court overturned the District Court’s decision in June 1981. The Supreme Court accepted that the primary purpose of draft registration was to draft soldiers for combat service. Given that women were barred from combat service, and given that Congress had determined that the prime purpose of registration was furnishing combat soldiers, the Court deferred to Congress and accepted that women’s registration would be “positively detrimental to the important goal of military flexibility.” Male-only registration therefore passed the test of intermediate scrutiny.
The legal grounds for male-only registration have rested until now on women’s combat exclusions. Now that those exclusions have been eliminated as of December 2015, constitutional, and policy-related, concerns are being raised regarding persistence of male-only registration and whether it can continue to pass intermediate scrutiny. The question remains, would women’s integration into the Selective Service System be a welcome development?
Dorit Geva is Associate Professor in the Department of Sociology and Social Anthropology, Central European University. She has written comparatively about the United States draft system in her book, Conscription, Family, and the Modern State: A Comparative Study of France and the United States (Cambridge University Press, 2013), and in several journal articles, a list of which can be found here. She can be reached at firstname.lastname@example.org, and her Twitter handle is @socioeurope