Criminal Justice & the Rule of Law

The National Commission on Public Service Is Right to Endorse Women’s Draft Registration

Max Z. Margulies
Friday, March 27, 2020, 9:37 AM

A national commission just recommended mandatory draft registration for women. While proponents agree that this is good for the military, few have examined how it might also be good for women.

Women with a U.S. Marine Female Engagement Team operating in Europe. (U.S. Marine Corps photo by Sgt. Michelle Reif)

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On March 25, the National Commission on Military, National, and Public Service published its final report advising Congress, the president and the American people on how to foster an ethos of national service. As part of this mission, the independent and bipartisan commission held numerous hearings, published reports, and interviewed stakeholders to review the status of the Selective Service System (SSS), the agency responsible for registering young men for the military draft and—if Congress and the president ever deem it necessary—inducting draftees into the military. While there may be debate about other aspects of the commission’s report, it makes at least one recommendation that Congress should implement as soon as possible: As long as the SSS continues to exist, women should be included in mandatory draft registration.

The United States has never included women in any military draft, going back to the federal government’s first use of conscription during the Civil War. The current legislation authorizing the draft, the Military Selective Service Act, does not even allow women to register voluntarily. In fact, women have been eligible to serve in all the same military occupations as men only since December 2015.

As the commission report notes, there were good reasons to have included women in selective service registration even before 2015. However, now that the last distinction between women’s and men’s military service has been formally eliminated, there is no excuse for continuing to exclude women today.

Unfortunately, in recent years, the loudest voice on the issue of women’s inclusion in selective service has come from the men’s rights movement. This argument views selective service registration policies as placing an unfair burden on men: By excluding women, the argument goes, the draft exposes men, and only men, to possible punishments for failure to comply. Therefore, women should also be required to register so as to distribute the burden equally.

Perhaps unsurprisingly, forcing a historically disadvantaged group to take on additional hardship may not receive enthusiastic support. Requiring women to register on the basis of this reasoning almost guarantees that the policy change will be unpopular with a large portion of the population. A 2016 Rasmussen Reports poll found that while 61 percent of male voters thought women should be required to register for the draft, only 38 percent of female voters agreed; 52 percent of women thought they should not be required to register. A YouGov poll the same year found remarkably similar results. Women may be rejecting selective service registration as something that they feel will adversely affect them.

Instead, women’s registration should be viewed as a fundamentally feminist policy. Other arguments that favor women’s registration—namely, those taking a pragmatic standpoint that emphasizes the benefits to the military or nation of having more women in the military—have received considerable attention elsewhere. But the idea that women’s registration is also good for women has not been examined in as much detail. Some strands of feminism oppose women’s inclusion because it exposes them to harm and requires participation in a fundamentally patriarchal or masculine institution. However, as Judith Stiehm argues, “[F]eminism includes refusing to be excluded.”

Advocates of women’s registration often frame the issue as a matter of either burden sharing or improving military effectiveness—but policymakers and the public should also understand that women’s inclusion in the draft could fundamentally alter women’s position in society for the better. Far from being an antiquated agency, the SSS reinforces cultural ideas about service and citizenship. A renewed draft that would require either men or women to serve against their will is unlikely—for reasons related to both political expediency and military necessity. Nonetheless, the act of registration reflects important principles of citizenship and political participation. Women’s registration would affirm the notion that women can provide equal contributions to national security. Expanding draft registration to women would be an important symbolic act that undermines stereotypes about gender roles, as the commission report notes, and in doing so reduces barriers to women’s participation as equals throughout society.

What Almost Was

Given that unprecedented opportunities for women in the military have resulted from the recent abolition of legal barriers to remaining tactical roles, it would be reasonable to assume that today’s debates represent the high-water mark for support for women’s inclusion in the draft. However, the United States has had close calls with a gender-neutral draft on at least two other occasions: several times throughout World War II, and again in the early 1980s, when President Jimmy Carter resumed selective service registration. On each of these occasions, there was substantial support for women’s inclusion in the draft—by some measures, even more than today.

If ever there was a time that would justify women’s conscription, World War II was it. Even though women could not serve in combat, full-scale mobilization for an existential conflict created a situation in which it was important to “free a man to fight,” as the common saying went. The more women served in the military, the more men could be sent to combat on the front lines. With American allies already conscripting women, proposals to do the same in the United States appeared within the War Department in 1942. For the next two years, Gallup polls repeatedly revealed high levels of support for drafting single women before married men, with support among draft-eligible women holding steady at between 70 and 80 percent. Support among the rest of the public was typically not far behind. Eventually, however, the issue fell by the wayside without going to a vote, as Congress saw no clear financial or military need at the time.

The United States again grew close to drafting women in 1945, when high casualty rates following the invasion of Normandy led to an acute shortage of nurses. A bill conscripting nurses—who were overwhelmingly women—into the army passed the house in March 1945 by a vote of 347 to 42, without anyone offering testimony in favor of a male-only draft. But the war ended before the Senate was able to vote, and the bill was withdrawn.

There was no serious discussion of drafting women again for another 35 years, though there was discussion of it during debates surrounding President Harry Truman’s proposed Universal Military Training plan. In fact, support for drafting women decreased drastically after World War II, including during the Korean War. It was only after Carter reactivated draft registration in 1980—following its suspension five years earlier—that the question arose again. Of the speakers who appeared before Congress to address whether women should register, all 11 who argued for a position argued in the affirmative. Despite this, and despite Carter’s preference that women register as well, the Military Selective Service Act allocated funds only for the registration of men.

It was not long before Robert L. Goldberg—a draft-eligible man—and others challenged the Military Selective Service Act’s constitutionality on due process grounds. They argued that male-only registration harmed men because it increased the probability of induction into the military in the event of a draft taking place. In 1981, the U.S. Supreme Court upheld male-only registration in Rostker v. Goldberg. Writing for the majority, Chief Justice William Rehnquist opined that Congress had carefully considered the utility of female draftees against the costs of registering women, and that the district court “was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress’ evaluation[.]” The Supreme Court emphasized a congressional determination—appearing nowhere in the text of the Military Selective Service Act but inferred from debates in committee—that the primary purpose of the draft was to provide troops for combat. Since law and policy excluded women from combat, the court deemed it reasonable to exclude women from the requirement to register for the draft—despite the history of World War II debates about drafting women for noncombat roles in order to free men to fight.

Rostker’s conclusion rested heavily on the Supreme Court’s traditional judicial deference to elected officials’ responsibilities for decisions relating to military affairs, including decisions over personnel policies and military justice. When then-Secretary of Defense Ash Carter removed the last formal barriers to women’s combat service in 2015, he undermined the primary legal argument for a male-only draft as well.

Since then, there have been two more opportunities to change this policy. The first, curiously enough, came from a vocal opponent of women’s service in combat. Republican Rep. Duncan Hunter introduced an amendment to the National Defense Authorization Act (NDAA) in February 2016 that would have required women to register for selective service. The idea of the “Draft America’s Daughters Act” was to put supporters of the repeal of the combat exclusion in the awkward position of having to vote for, as Hunter put it, forcing women to “rip the enemy’s throats and kill them for our nation.” It was a put-up-or-shut-up dare.

Hunter’s amendment was more popular than he expected. Although he voted against it, the amendment passed in committee before being dropped from the final version that went to the House floor. Meanwhile, the Senate passed, 85-13, a version of the NDAA that included a provision expanding selective service to women. At the end of the day, the final version of the bill did not require women to register for the draft, instead establishing the National Commission on Military, National, and Public Service to review this option as a compromise.

With Congress choosing to support the status quo, the National Coalition for Men—a men’s advocacy group—filed suit in April 2013 on the same grounds that Goldberg did: that the male-only draft registration requirement violates the Fifth Amendment’s Due Process Clause. The group noted that eligible men are required to register and continually update the SSS with address changes on penalty of fines and imprisonment. In February 2019, the U.S. District Court for the Southern District of Texas determined that the issue was ripe. In his decision, Judge Gray Miller found that the factual basis of Rostker—women’s ineligibility for combat—“can no longer justify the [Military Selective Service Act’s] gender-based discrimination.” The case is working its way through an appeal before the U.S. Court of Appeals for the Fifth Circuit and could end up before the U.S. Supreme Court if Congress does not act first.

Outdated Arguments

The idea of requiring women to serve in the military is not necessarily an unpopular one. The question, though, is what type of arguments are most persuasive to those who control policy. Writing in the early 1990s, Mady Segal and Amanda Hansen examined congressional testimony to determine what arguments experts made to support or oppose women’s expanded roles in the military, and divided experts’ rationales into those based on military effectiveness and those based on citizenship rights and responsibilities. The second category emphasized the “opportunities afforded by military service” and viewed military service as “an intrinsic privilege of citizens” —a very different argument than those made by the plaintiffs in Rostker and National Coalition for Men. The plaintiffs in those cases argued that women’s exclusion disadvantaged men, whereas the claims about citizenship maintain that such exclusion disadvantages women.

The first category of argument that Segal and Hansen examined—military effectiveness—would oppose women’s inclusion in selective service on the grounds that inclusion would at best impose unnecessary costs with no appreciable impact on military readiness, and at worst would undermine the military’s missions. Proponents of this view, like U.S. Marine Corps veteran Jude Eden, point to women’s average lower physical fitness, along with the higher injury rates of women in the military, compared to men. Historically, those making these military effectiveness arguments have been more likely to oppose women’s inclusion. However, as many others have persuasively argued, there is little evidence to support the idea that women’s inclusion—including in combat—hurts readiness. Especially in the event of a major conflict that would require the draft, militaries should want access to the best recruits across the country. As Norway’s minister of defense said, “We don’t introduce conscription for men and women because we are in need of more soldiers, but because we need the best.”

Expanding the number of women in the military does not undermine the armed forces’ ability to accomplish their missions—and indeed, the addition of more women can improve the military. This is particularly true at a time when military standards may prevent the recruitment of people with important skills and experts have voiced concerns about reaching a broad and diverse enough segment of the population. Furthermore, the SSS has always been about who is not drafted as much as about who is. Amy Rutenberg’s thoroughly researched book “Rough Draft” demonstrates the power of “manpower channeling”—the strategic application of deferments and exemptions to incentivize civilian investment in desirable careers. In other words, the architects of the SSS have always recognized that some citizens could make better contributions to national security in vital civilian fields rather than in the military, and they designated exemption categories accordingly. Although modern exceptions for avoiding the draft would likely differ from those of the Cold War era, the poor physical fitness of today’s draft-eligible cohorts—along with the large numbers of people in those cohorts—suggests that it would still be necessary to channel people away from military service. Excluding women from a renewed draft not only might harm military effectiveness but also would be an inefficient use of the civilian labor force.

With little evidence to support the idea that women harm military effectiveness, opponents of women’s draft registration—including the U.S. government—now often argue that including women would provide only a marginal benefit that is not worth the additional administrative cost. In other words, it is unnecessary to expand selective service policies to women to achieve the desired results for national security. This narrow cost-benefit analysis focuses on what women can bring to the military, ignoring what inclusion can provide women. It implicitly rejects the citizenship argument and views women as merely a means to an end. Instead, a feminist approach—one that asks, “how do policies impact women” or “how do policies perpetuate gendered conceptions of power”—to selective service might acknowledge that mandatory registration for women has benefits not only for women but also for American society as a whole through supporting a more inclusive approach to national security policies.

An Inclusive Selective Service System

There is a perceived link between military service, national security and American citizenship that makes “first-class citizenship” difficult to achieve for those who have never served in the military. American culture also reinforces the idea that the citizen-soldier is the ideal form of national defense, and scholars and political leaders alike have often argued that military service is a civic duty. In practice, the idea that there is a “price” of citizenship is at odds with liberal theories of individual rights prized by many countries today, and military service has rarely been as universal as national myths have implied, even in countries that treated it as the principal basis of citizenship. Nonetheless, rhetoric that privileges military service as the highest form of patriotism or civic duty has real consequences for equality and inclusion in everyday life.

For this reason, requiring women to register for the draft—and, by extension, expose themselves to the risks of war—can paradoxically bring benefits. When military service is integral to national identity, those who are excluded from an obligation to serve have a different relationship to the state. This relationship need not establish the excluded group’s inferiority or noncitizenship. Exemptions to conscription policies construct alternative ways that individuals can implicitly earn citizenship or serve the nation, such as through contributions to agriculture, industry, or family and moral life. Nonetheless, there is a difference between the explicit logic by which these groups are exempt and the reasons that have typically kept women out of the draft. Whereas some groups fulfill citizenship obligations in other ways, the exemption of women has been based on the logic that their contributions are less than the service of men and, therefore, are unnecessary.

The Supreme Court expressed this reasoning in the Rostker case, and other courts have responded similarly to legal challenges in other countries. Many commentators criticized the absence of a clear logic in the European Court of Justice’s 2003 decision in Dory v. Bundesrepublik Deutschland, which found that Germany’s male-only conscript system did not violate European law on equal treatment between men and women—reasoning that while European law could constrain national policies with respect to military organization, it could not constrain their “choices of military organization for the defence.” This reasoning seems to permit member countries’ right to pass legislation with disparate negative consequences for men and women, as long as it is in the interest of national security.

Given that it is the state’s ability to demand military service of men that constitutes the price of membership in a political community, rather than military service per se, it is difficult to argue that the ability to volunteer for service—even for the same positions as men—is sufficient for women’s equality if men are the only ones required to serve. Rules about exclusion send signals about whom the state considers important for the provision of national security. States that obligate military service only for men explicitly define women’s contributions to national security as less important. This is all the more true when people prioritize military service as the principal way to contribute to national security.

While the inclusion of women in drafts puts them more in harm’s way, gender-neutral conscription can pave the way for greater gender equality and inclusion of women in the political and social community. Much progress has been made toward undermining the traditional gender role dichotomy that Jean Elshtain described as “Just Warriors and Beautiful Souls.” In her formulation, patriarchal norms are reinforced through the development of ideal male and female identities in Western culture that are innately intertwined with both each other and the conduct of war: The male role is to protect the female noncombatant, who is helpless on her own. However, the problematic notion that women are less suited to combat and military life persists. Mark Coppenger, who was invited to testify to the National Coalition on Military, National, and Public Service, has argued that “women, in the prime years for bearing and raising children, should not be consigned by the state away from hearth and home[.]” Others have similarly argued that women are better suited to contributions in the familial sphere or are “physically and emotionally” unprepared for battle. When Duncan Hunter says that “he could stomach the notion of his son being conscripted to go off and die, but not his daughters,” this is also a statement implying that men must protect women from the horrors of war—that men can handle it, and women cannot.

Male-only conscription remains an important arena in which men can continue to claim a monopoly on the warrior-role: Men’s contribution to national security is vital, while women’s contribution is unnecessary and supplemental to the real effort supplied by men. As the military tries to combat sexual assault and redefine itself as a profession where women can succeed on equal footing, it is vital to eliminate stereotypes that paint women as nurturers rather than fighters. Their continued exclusion from the rhetoric of an equal national security role undermines desired social and organizational change. As long as law continues to embody a difference between women’s and men’s abilities to contribute to national security, men will continue to act as though women need to prove themselves, leading to a hostile environment for women in military units. As Stiehm argues in “Bring Me Men and Women,” when women “take on this male-only role, men will no longer be able to use it to define themselves.” Even when women serve in the same capacity as men, the denial of their equal responsibility to serve—regardless of whether it is based on arguments about ability or necessity—nonetheless contributes to explicit and implicit bias.

Including women as members of the community obligated to take the greatest risk to protect the nation can also have more immediate consequences for women’s equality. Military service has historically helped disadvantaged groups gain rights and equality: For example, the Druze in Israel successfully framed their demands for political equality as derived from their military service. As scholars such as Theda Skocpol and Jennifer Mittlestadt have shown, participation in the military has also played a key role in the expansion of social welfare benefits. Historically, this has allowed men to acquire certain privileges and status in society. This is certainly how the National Organization for Women viewed the impact of a male-only draft when it submitted a brief in support of the plaintiff in Rostker that argued the exclusion of women denied them “the full rights and privileges of citizenship” perceived to follow from draft registration, and that it perpetuated the “myth that all men are more competent than all women.” By challenging stereotypes about women’s roles in society, registration for the draft could improve women’s position in the struggle for better conditions and opportunities, both inside and outside the military.

And a Boon for All

Greater equality not only affects the daily lives of women but also has ripple effects throughout government. Possibly of greatest note to those opposed to the expansion of women’s inclusion in the military, sharing the obligation of service can lead to improvements in national security. A larger portion of the population will come into contact with the SSS, triggering introspection about their relationship to the military and possibly increasing the number of people who volunteer to serve. By eliminating the last legal distinction between men’s and women’s relationship to the military, it might bolster arguments in favor of women’s equality within the military. And anything that improves women’s contributions to national security would by definition improve national security overall.

Forcing women to register for the draft in order to improve their standing in society may come across as a form of victim-blaming: placing the onus of remedying systematic biases on the people harmed by them. Selective service registration imposes some costs on women, but these costs are minimal in peacetime—limited, for most, to the completion of small amounts of paperwork. The small cost that draft registration places on women is easily outweighed by the larger benefit of eliminating an argument that men can use to justify continued privileges in society. Furthermore, while women incur a small cost in the requirement of registration, they bear a greater burden when they are excluded from privileged arenas.

As long as the all-volunteer force can meet American security needs, selective service registration remains a primarily symbolic act. Yet symbols have meaning. They shape how people understand their national communities. Rather than a burden placed unfairly on men, or a burden placed on women to remedy societal problems, gender-neutral selective service registration should be understood as a statement about American values. It is the legal manifestation of the belief that women are equal contributors to national security and do not belong to distinct social spheres. In an ideal world, there would be no need for anyone to be called on to risk life and limb for their country. But until swords become ploughshares and as long as selective service continues to exist as a draft-ready mechanism, it is important to minimize the inequities knowingly left in the system.

Max Z. Margulies is an assistant professor of international affairs and executive director of the Rupert H. Johnson Grand Strategy Program at the United States Military Academy at West Point. His research focuses on military recruitment and personnel policies, military effectiveness, and civil-military relations. The views expressed here are his personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government.

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