Women in Combat and the Constitutionality of Male-Only Draft Registration

The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft.

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon’s most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist’s majority opinion also relied heavily the courts’ “lack of competence” on national security issues and the consequent need for “healthy deference to legislative and executive judgments in the area of military affairs.” That deference might justify upholding male-only draft registration even if all or most combat positions are open to women. The federal government could argue that, in the expert judgment of the military, few women have the strength and endurance needed for many combat positions, even if they are not categorically barred from them. Thus, female draftees might still be less useful to the military than male ones. A court applying “healthy deference” might choose not to contest that assertion.

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military. If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the selective service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled. For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts’ taking a strong line against sex discriminatory laws.

Even if Rostker is overruled, it does not follow that women will ever actually be drafted or that such a draft would be constitutional. Elsewhere, I have argued that a draft of any kind violates the Thirteenth Amendment’s ban on involuntary servitude, and that the Supreme Court’s 1918 decision upholding the draft against a Thirteenth Amendment challenge is poorly reasoned and badly misguided, as was a 1916 precedent upholding a Florida law requiring able-bodied male citizens to perform forced labor on public roads. For reasons I outlined here, I am not much moved by arguments that, in some extreme cases, a draft might be the only way to ensure national survival.

I doubt that the Supreme Court will overrule these decisions in the near future. But even if it doesn’t, we are unlikely to see the reinstatement of the draft. Conscription is gradually declining around the world because it is both unjust and inefficient, and tends to degrade the quality of armed forces that rely on it. The public, some 80% of recent veterans, and most political elites oppose the return of the draft in the US. Ultimately, the best way to ensure that women will never be drafted is to not have a draft at all. Men and women should be allowed to serve in the military on an equal basis, but neither should be forced to do so.

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