Rostker v. Goldberg, 453 U.S. 57, was a decision of the United States Supreme Court holding that the practice of requiring only men to register for the draft was constitutional. After extensive hearings, floor debate and committee sessions on the matter, the United States Congress enacted the law, as it had previously been, to apply to men only. Several attorneys, including Robert L. Goldberg, subsequently challenged the gender distinction as unconstitutional. In a 6-3 decision, the Supreme Court held that this gender distinction was not a violation of the equal protection component of the due process clause, and that the Act would stand as passed.
Draft and registration laws
The Military Selective Service Act authorizes the President to require the registration for possible military service of males, but not females, the purpose of registration being to facilitate any eventual conscription under the Act. However, registration for the draft was discontinued by Presidential Proclamation in 1974. In early 1980, President Jimmy Carter re-established the Military Selective Service System primarily because the Soviet Union had invaded Afghanistan. President Carter also recommended that the Act be amended so that the MSSA extended to include women. The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. On April 22 in the House and June 12 in the Senate, a Joint Resolution to resume the registration process was passed. However, the full requested fund amount was not granted, rather just the funds required to register men. Registration of young men started on July 21, 1980.
Case background
In 1971 an anti-war group, the Philadelphia Resistance, gathered a group of young male high school students, including Andrew Rowland, his brother, David Sitman and David Fruedman to protest the draft. In Rowland v. Tarr the United States District Court for the Eastern District of Pennsylvania heard a challenge to the MSSA on several grounds, one of which was gender discrimination. In 1974, they were not granted a 3-judge court opinion because the draft was now discontinued. This group of men petitioned again in 1974 in Goldberg v. Tarr. Robert Goldberg was a medical student at Penn State who registered and claimed to be a conscientious objector. In July 1980, just a few days before registration was to commence again, the district court offered an opinion claiming that the MSSA violated the Due Process Clause of the 5th Amendment. The director of the Selective Service System, Bernard Rostker, filed an appeal and the circuit judge stayed the court decision and registration began as scheduled. Rostker v. Goldberg moved up to the Supreme Court.
Case arguments
The Army and Marine Corps precluded the use of women in combat as a matter of established policy, and both the Navy and the Air Force restricted women's participation in combat. Even the president, who had originally suggested that women be included, expressed his intent to continue the current military policy excluding women from combat. Since the purpose of registration was to prepare for a draft of combat troops, and since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided funds should not be used to register them. As one Senator said, “It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The Committee finds this a confused and ultimately unsatisfactory solution." As the Senate Committee recognized a year before, "training would be needlessly burdened by women recruits who could not be used in combat." All in all, the proponents of the current MSSA advocated not using government funds to register people who were excluded from the job anyway. The main point of those who favored the registration of females was that females were in favor of it because of gender equality principles; women, as full citizens, ought to have the same civic duties and responsibilities as men.
Ruling
In the majority opinion, Justice William Rehnquist wrote "he existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them." Implicit in the obiter dicta of the ruling was to hold valid the statutory restrictions on gender discrimination in assigning combat roles. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft therefore, there is no violation of the Due Process Clause. The Supreme Court therefore reversed the decision of the district court.
Dissenting opinion
White, Marshall, and Brennan dissented. Justice White did not think that excluding women “offended the Constitution” but rather that Congress did not “conclude that every position in the military, no matter how far removed from combat, must be filled with combat ready men.” Marshall dissented on the principle of equal civic obligation.
Later developments
In 2013, the US military removed the restriction on women in certain combat situations, and by 2015, had eliminated all restrictions barring women from combat. A new suit, brought by the National Coalition for Men, charged that with the removal of service restrictions, the Selective Service System's men-only requirement failed the Equal Protection clause. Judge Gray H. Miller of the United States District Court for the Southern District of Texas ruled in National Coalition for Men v. Selective Service System in February 2019 in favor of the plaintiffs, that the Service's men-only requirement was unconstitutional, though issued no order or injunction. Judge Miller wrote that while at the time Rostker was decided, women were banned from serving in combat, the situation has since changed with the 2013 and 2015 restriction removals.
