Criminal Justice & the Rule of Law

Should Women Register for Selective Service? The Legacy of Rostker v. Goldberg

Russell Spivak, Adam Aliano
Friday, December 23, 2016, 10:00 AM

On December 1st, National Security Council spokesman Ned Price expressed President Obama’s support for requiring women to register for Selective Service when they turn 18, as their male counterparts must. “As old barriers for military service are being removed, the administration supports—as a logical next step — women registering for the Selective Service,” Price stated. Given President Obama’s brief time left in office, this statement may be purely symbolic.

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On Dec. 1, National Security Council spokesman Ned Price expressed President Obama’s support for requiring women to register for Selective Service when they turn 18, as their male counterparts must. “As old barriers for military service are being removed, the administration supports—as a logical next step — women registering for the Selective Service,” Price stated. Given President Obama’s brief time left in office, this statement may be purely symbolic. Additionally, Congress’ recent consideration and rejection of this idea suggests this position may not be carried forward. But the Commander-in-Chief and Congress are not the only voices that matter here: the third branch, the federal judiciary, may ultimately decide whether this policy is effectuated.

Selective Service’s History

Passed soon after the United States entered World War I, the Military Selective Service Act (MSSA) authorized Congress to conscript male troops, and the Supreme Court upheld it soon after against First and Thirteenth Amendment challenges. (Notably, President Roosevelt supported amending the act to conscript women—albeit only as nurses—during World War II; that bill “passed in the House and came within one vote in the Senate before the surrender of Germany.”)

Throughout the 20th century, the Supreme Court regularly adjudicated the MSSA’s procedures and exemptions. But in 1981, the Court considered it in a different light: sex discrimination. The case, Rostker v. Goldberg, considered whether the male-only requirement to register for the Selective Service—the database to be used for a military draft—was a violation of the Equal Protection Amendment. The court analyzed the law under the framework of intermediate scrutiny established under Craig v. Boren, which states that a law’s disparate treatment by gender can be upheld only if the law furthers an important government interest and that the law, including its gender-disparate treatment, must be substantially related to that interest. Because at the time, “women [were] excluded from combat,” the court upheld Congress’s decision not to have them register.

Times Have Changed

In January 2013, Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey issued a joint memorandum that “rescinded effective immediately” a 1994 rule that barred women from serving in roles that “engage[d] in direct combat on the ground.” Moreover, the Panetta memo required Military Departments to submit detailed plans for implementation by May 15, 2013 and execute them by January 1, 2016.

Panetta’s successor, Defense Secretary Ash Carter, executed Secretary Panetta and Chairman Dempsey’s plan to remove the restrictions on women’s participation in combat roles across the services. “Anyone, who can meet operationally relevant and gender neutral standards, regardless of gender, should have the opportunity to serve in any position,” Carter explained. The Secretary also addressed the two main arguments against women serving in combat: that women would substantially hurt their units’ fighting capacities, and that it would have a negative impact on the unit’s culture. Carter’s memorandum proffered scientific data to show women did not hurt their unit’s capacities. And in his press conference announcing the change, Carter noted that to “succeed in our mission of national defense, we cannot afford to cut ourselves off from half the country's talents and skills. We have to take full advantage of every individual who can meet our standards.” As for the “cultural argument” against women serving alongside men in combat, Carter stated in his report that military is “prepared to meet this challenge.”

Congress’s Posture

Every year, Congress must pass a National Defense Authorization Act (NDAA) in addition to defense appropriations to set defense funding for the year. This year, the Senate Armed Forces Committee required both men and women to register for the Selective Service in their draft NDAA. So, too, did the House Armed Forces Committee.

But, according to the Military Times, in an “unusual but not unprecedented procedural move [the] Rules Committee members instead voted to cut off consideration of the issue on the House floor and strike that entire section of the bill.” This is not to say that Congressional support for women’s registration is universal: far from it. Senator Ted Cruz, for example, has called such measures “nuts.” (Interestingly, Rep. Duncan Hunter, the Congressman who proposed the amendment to require women to register, is strongly opposed to women serving in combat and actually voted against the measure. According to The Atlantic, he “offered the amendment as a dare, confident that progressives on gender equality in the service were all talk.”)

When the two bills went to markup in conference, the final NDAA did not require women to register for the Selective Service. Instead, according to the Conference Report, the “GAO will study the Selective Service, examining its utility and future use.”

Moving Forward

On the campaign trail, President-elect Trump was criticized for defending a years-old tweet attacking gender integration in the armed services:

Retired Marine four-star General James Mattis, the President-elect’s choice for Secretary of Defense, has also indicated opposition to allowing women to serve in combat, saying, “‘It would only be someone who never crossed the line of departure into close encounters fighting that would ever even promote such an idea as putting women into close combat.”

These views do not necessarily mean that the incoming Administration would be hostile to the idea of women registering for the draft: as Rep. Chris Gibson noted, supporting a dual-sex draft does not mean supporting women in combat. Ultimately, as neither Trump nor Mattis has spoken directly on the issue, how these men feel about their predecessor’s policy is anyone’s guess. But this may not matter. An unlikely champion could bring this policy to fruition: the bench.

In April 2013, James Lesmeister and the National Coalition for Men sued the Selective Service Administration in the Central District of California for injunctive and declaratory relief, citing the discriminatory features of the MSSA. The District Court dismissed the case on the grounds that at the time, not all positions in the armed services were open to women. Thus, the court concluded, the case gives rise to “hypothetical and abstract, not definite and concrete” questions.

In February of this year, however, the Ninth Circuit Court of Appeals overturned the dismissal. Given the then-impending opening of combat roles to women, the Circuit Court found the suit gave rise to a “legitimate controversy that is ‘fit for adjudication.’” And according to the panel, the district court could address the harms alleged “either by extending the burden of registration to women or by striking down the requirement for men.”

As the Ninth Circuit notes, “numerous specific changes in statutes, policies, and practices … have happened since the Supreme Court’s decision in Rostker” in 1981. And it’s true. Not only can women now serve in combat, but they have reached countless service-related milestones. The first woman to command a U.S. Navy vessel did so in 1990. In 1991, women were cleared to fly fighter jets in combat; two years later, Congress authorized women to serve on combat ships at sea. 1998 marked the first female fighter pilots to fly combat missions off of an aircraft carrier. The first women to command a U.S. Navy warship and U.S. Air Force fighter squadron were given their commands in 1998 and 2004, respectively. By 2010, women were cleared to serve aboard submarines. According to the Army, by September 2015 “437 women earned awards for valor to include two Silver Stars, three Distinguished Flying Crosses, 31 Air Medals, and 16 Bronze Stars.” As Secretary Carter noted, between the 2013 memorandum and the 2015 policy change, we also saw “women soldiers graduate from the Army's Ranger School.”

Arguably as important to women’s achievements in the field have been the losses suffered. The Congressional Research Service reports, “[a]s of October 2015, 161 women have lost their lives and 1,016 had been wounded in action as part of Global War on Terror (GWOT) operations.”

Even more changes have happened since the Ninth Circuit’s ruling in February. For example, Army Capt. Kristen Griest, one of the first women to graduate the Army’s Ranger School, became the first female infantry officer in history in April. The same month, “[t]he Army approved requests from 22 women . . . to enter as 2nd Lieutenants into the Infantry and Armor branches” should they complete the training requirements. The Marine Corps approved its first female rifleman and machine gunner in May, and the Army graduated its first women from Infantry and Armored officer training courses in October and December, respectively (the latter on the same day as the President announced his support for female registrants for Selective Service).

Applying These Changes to Rostker

The Rostker Court rooted its decision in the purpose of the draft and the realities of then-contemporary military service. The MSSA, citing the Act’s purpose, enabled the U.S. to maintain “adequate armed strength ... to insure the security of [the] Nation.” In the court’s eyes, that aim was met by “develop[ing] a pool of potential combat troops.” In 1980, when Rostker was filed, women were excluded from combat roles such as service on a vessels of aircraft engaged in combat missions—which they may now perform. Since the purpose of registration—and the draft—is to fill the ranks of these combat positions, women could not effectuate that goal. Thus, the court concluded that preventing women from entering the aforementioned pool was closely related to the furtherance of the government’s interest. In sum, as long as opportunities to serve differed by gender, a draft that differed by gender was constitutionally permissible.

On the grounds that the Justices “lack[ed] competence” in the realm of military affairs and that “[t]he responsibility for determining how best our Armed Forces shall attend to [the business of fighting wars] rests with Congress and with the President,” the court bolstered its conclusion by citing executive officials against requiring women to register as well as House and Senate Armed Services Committees’ votes against female registration.

The changes to women’s role in today’s military undermine much of Rostker’s logic. As detailed above, women’s opportunities in the military, both in support and combat roles, are essentially equal to men’s. Women can even pursue Special Operations billets, including Navy SEALs and Army Green Berets. Thus, reapplying Rostker’s analysis to today’s military reality, the court would be hard-pressed to hold that restricting women from registering from the Selective Service furthers the government’s interest in establishing a pool of “combat ready” troops. Indeed, given the difficulties the military faces in filling its ranks with qualified men, opening Selective Service to women may be more important than ever: according to a 2009 report from nearly 80 retired flag officers and many other high ranking military officials, “75 percent of young people ages 17 to 24 are currently unable to enlist in the United States military [due to] failure to graduate high school, a criminal record, and physical fitness issues, including obesity.” And unlike in 1981, judicial deference to the executive and legislative branches would demonstrate support, rather than opposition, for such measures.

However, since the Ninth Circuit’s ruling, questions of the court’s justiciability have arisen. The government has filed an additional motion to dismiss for lack of standing, incorrect venue, and failure to state a claim. The Department of Justice asserted that the plaintiffs have failed to establish standing: Lesmeister because he has failed to assert both an injury-in-fact and a cognizable harm, and the National Coalition of Men because it could not show its members would have standing. The government further argued the venue was improper because neither Lesmeister nor the NCM were in California, nor was any part of their claim. And on the plaintiff’s failure to state a claim, the Justice Department moved to dismiss Fourteenth Amendment causes of action on the grounds that the case represents federal, not state action, and Fifth Amendment Equal Protection causes because the “relief plaintiffs seek plainly would intrude on the political branches’ constitutional power to raise and regulate the armed forces.” The motion also cites Supreme Court precedent, which states “even when the underpinnings of a decision have been called into question,” lower courts are to abide by Supreme Court precedent. Thus, the motion argues, Rostker remains binding despite changes in women’s military service opportunities.

Unsurprisingly, plaintiffs disputed each of the government’s contentions with multiple counterarguments. To assert standing, plaintiffs claim that sex discrimination is injurious per se, that the DOJ’s theory of standing would require men violate the law to have standing, that Lesmeister has standing by his increased likelihood of being drafted if a draft is enacted, and that the trial court in Rostker found standing under nearly identical facts. Extending these arguments to members of the NCM, plaintiffs counter that NCM does indeed have organizational standing for its members. As far as the causes of action themselves, plaintiffs stress the high bar required to grant motions to dismiss for failure to state a claim. Notably, the case was also transferred to the Southern District of Texas four weeks ago in an effort to cure alleged venue problems.

Ultimately, the trial court may decide the case on its justiciability, effectively punting on the merits issue. A delay in adjudicating the merits may spell even more trouble for the plaintiffs: if the incoming administration decides to roll back women’s military opportunities, particularly in combat positions, the force of the equal protection argument may be blunted significantly. But if the case does reach the merits, only time will tell whether the trial court concludes that these developments, in concert with Congressional approval from both chambers, undermine Rostker and no longer justify disparate treatment. Either way, the court’s decision may ultimately have major implications for Selective Service under the incoming administration.

Russell Spivak is a graduate of Harvard Law School and the Massachusetts Institute of Technology. He has previously interned in the Office of the Chief Prosecutor in the Office of Military Commissions.
Lieutenant Commander Adam Aliano is a Navy Judge Advocate. He is a graduate of the United States Naval Academy, Harvard Law School, and the Naval War College. After graduating from the Naval Academy, LCDR Aliano served as a Surface Warfare Officer aboard USS PREBLE (DDG-88) for over five years, deploying three times in support of national tasking. He was selected for the Navy’s Legal Education Program in 2014 and graduated from Harvard Law School in 2017. Since graduation, LCDR Aliano served in various capacities in the Navy JAG Corps to include leadership billets abroad.

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