ROSTKER V. GOLDBERG

A U.S. Supreme Court decision, Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), upheld the constitutionality of a male-only draft registration law enacted by Congress in 1980. Emphasizing its traditional deference to Congress in the areas of military affairs and national defense, the Court refused by a vote of 6–3 to apply precedent that might have invalidated the law because of gender discrimination. Even the dissenters, however, did not challenge the right of Congress to exclude women from combat.

Rostker v. Goldberg actually began years before Congress enacted the Military Selective Service Act (MSSA) (50 App. U.S.C.A. § 451 et seq.) in 1980. In 1971, during the last part of the vietnam war, Robert Goldberg and several other men challenged the male-only draft policy, arguing that equal protection of the laws, as guaranteed by the fifth amendment, had been violated. When Congress discontinued military conscription in 1972, the lawsuit became inactive, but it was not dismissed. It was revived in 1980 when Congress, acting at the request of President jimmy carter, revived the registration process. Carter was concerned about the Soviet Union's invasion of Afghanistan and believed that the government had to be ready to draft soldiers if the situation warranted it.

In his proposal to Congress, Carter asked for the authority to register both men and women. Congress refused to allocate funds to register women but did fund the registration of males. Carter signed MSSA, and on July 2, 1980, he ordered the registration of specified groups of young men pursuant to the authority conferred by Section 3 of the act. Registration was to commence on July 21, 1980.

At that point Goldberg's lawsuit took on new life and became a class action lawsuit. A three-judge panel in the U.S. District Court for the Eastern District of Pennsylvania held a hearing on the plaintiffs' claims against Bernard Rostker, director of the selective service system, the agency that administers military registration. The plaintiffs again asserted that the law violated equal protection. The panel agreed, declaring it unconstitutional three days before registration was to start. Rostker requested that the court's order be stayed (temporarily lifted) pending appeal. Justice william j. brennan jr. granted the stay, allowing registration to proceed.

In his majority opinion, Justice william h. rehnquist rejected the idea that MSSA violated the Fifth Amendment in authorizing the president to require the registration of males and not females. Rehnquist noted that the statute involved national defense and military affairs, areas in which the Court traditionally had deferred to Congress. Under the Constitution, Congress has broad powers to raise and regulate armies and navies. More important, Rehnquist stated, the Court's "lack of competence" had to be considered when assessing legislation in this area.

Rehnquist concluded that Congress had not acted unthinkingly or reflexively in rejecting the registration of women. He pointed out that the question had received national attention and was the subject of public debate in and out of Congress. Congress heard testimony and collected evidence during the legislative process. All these actions persuaded the Court that the decision to exempt women from registration was not the accidental by-product of a traditional way of categorizing females.

The key issue for Congress in planning a future draft was the need for combat troops. Rehnquist noted that "women as a group, unlike men as a group, are not eligible for combat" under statute and established policy. These combat restrictions meant that Congress had a legitimate basis for concluding that women "would not be needed in the event of a draft." Therefore, there was no need to register women.

Turning to the issue of equal protection, Rehnquist ruled that because of the combat restrictions on women, men and women "are not similarly situated for purposes of a draft or registration for a draft." The law did not violate equal protection because the exemption of women from registration closely related to the congressional purpose of registration as a way to "develop a pool of potential combat troops." Rehnquist concluded by noting that the "Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality."

Justices Brennan, byron r. white, and thurgood marshall dissented. In his dissent, Marshall lamented the majority's failure to apply the "heightened" scrutiny test announced in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). In that case the Court held that gender-based classifications "must serve important governmental objectives and must be substantially related to achievement of those objectives." The burden is on the party defending the classification to meet these requirements.

In Marshall's view, there was a difference between registration and conscription. He did not agree that exclusion of women from draft registration "substantially furthers the goal of preparing for a draft of combat troops," or that the registration of women "would substantially impede its efforts to prepare for such a draft." The majority had crafted a "hypothetical program for conscripting only men," where "conscripts are either assigned to those specific combat posts presently closed to women or must be available for rotation into such positions." He noted that only two-thirds of those persons conscripted in a future draft would serve in combat roles. There appeared to be no important or substantial government objective in not registering women for the draft.

Marshall, however, did not discuss the more fundamental issue of excluding women from combat. Both the majority and minority opinions assumed that it was legitimate to exclude women from the front lines. In other contexts, this type of gender-role classification has been ruled unconstitutional.

further readings

Kamens, William A. 2003. "Selective Disservice: The Indefensible Discrimination of Draft Registration." American University Law Review 52 (February).

Oberwetter, Ellen. 1999. "Rethinking Military Deference: Male-Only Draft Registration and the Intersection of Military Need with Civilian Rights." Texas Law Review 78 (November).

cross-references

Armed Services; Sex Discrimination; Women's Rights.

Rostker v. Goldberg, 453 U.S. 57 (1981), argued 24 Mar. 1981, decided 25 June 1981 by vote of 6 to 3; Rehnquist for the Court, White (joined by Brennan) and Marshall (joined by Brennan) in dissent. In 1971, several men facing the draft for the Vietnam War challenged male‐only conscription on the basis of the equal protection principle contained in the Fifth Amendment's Due Process Clause. The draft was discontinued and the case entered legal limbo for several years until 1980, when President Jimmy Carter reinstituted registration (although not actual conscription). The lawsuit was then revived, with Goldberg litigating on behalf of himself and all similarly situated males against Rostker, head of the Selective Service. On 18 July 1980, three days before the new draft registration was to begin, a federal district court declared the act unconstitutional and enjoined the government from requiring registration. Rostker immediately requested a stay pending appeal, and Justice William J. Brennan granted it. Registration began on time.

Rejecting Goldberg's claims, the majority argued that judicial deference is at its peak when the Court, as here, is considering the combined executive‐legislative power over national security. The majority further held that the test of “heightened scrutiny” articulated in Craig v. Boren (1976) for measuring the constitutionality of gender discrimination was satisfied because military flexibility was an important government goal. The exclusion of females from registration for a potential draft substantially furthered that goal, since women, unlike men, could not be rotated from combat into noncombat positions. The Court did not consider the possibility that women could occupy combat roles.

Justice Byron White's dissent read the legislative record differently, and he urged a remand for hearings on the relation between registering women and military flexibility. Justice Thurgood Marshall's dissent emphasized the distinction between registration for the draft and conscription itself, insisting that the government had failed to demonstrate that excluding women from registration substantially furthered any important governmental interest. Neither dissent challenged the rule of excluding women from combat.

Leslie Friedman Goldstein