Women In Combat May Kill the Draft – Or Expand It

Marine Corporal Heather Sample patrols a region of Afghanistan in 104-degree heat.

Senior Pentagon officials today leaked the news that Secretary of Defense Leon Panetta plans to end the military’s long-standing ban on women serving in combat. This decision, which could potentially give women access to over 230,000 previously denied roles, comes on the heels of last year’s move that opened up over 14,000 combat positions to women.

The groundbreaking move recommended by the Joint Chiefs of Staff overturns a 1994 rule prohibiting women from being assigned to smaller ground combat units. Panetta’s decision gives the military services until January 2016 to seek special exceptions if they believe any positions must remain closed to women.

A senior military official says the services will develop plans for allowing women to seek the combat positions. Some jobs may open as soon as this year. Assessments for others, such as special operations forces, including Navy SEALS and the Army’s Delta Force, may take longer.

This move is being heralded as a long overdue victory for women’s rights, for formally recognizing the women who are already serving in combat and for allowing women the equal opportunity to compete for military jobs. But there is another implication to this decision, which may result in backlash against the Department of Defense, and could eventually reach the Supreme Court of the United States. This issue is the draft: by repealing the ban on women in combat, Panetta may have unwittingly opened the door to a constitutional challenge to the Selective Service Act.

In 1980, President Jimmy Carter ordered the Selective Service to reactivate the registration of young Americans for the draft under the Military Selective Service Act. Carter asked Congress to appropriate funds for that purpose and recommended changing the Act to include the registration of females as well as males.

Congress only authorized funds for registering men and declined to amend the law to permit registering females. Several men then sued the government, arguing that the Act was unconstitutional because it violated the 5th Amendment’s equal protection clause by excluding women from registration. In essence, the equal protection principle states the government cannot discriminate based on arbitrary criteria — they must treat similar situations the same way — and therefore it was unconstitutional for the Selective Service to require only men to register for the draft.

Carter reactivated Selective Service registration in response to the Soviet invasion of Afghanistan.
Carter reactivated Selective Service registration in response to the Soviet invasion of Afghanistan.

In 1981, the District Court for the Eastern District of Pennsylvania ruled that the practice did in fact violate the 5th Amendment, and it prohibited further registration under the Act. The government appealed to the Supreme Court. In the 6-3 decision in Rostker v. Goldberg, the Court ruled in favor of the Selective Service. Justice William Rehnquist wrote the majority opinion defending the discriminatory practice, saying, “Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.”

Rehnquist argued that the practice of excluding women from the registration process “was not the ‘accidental by-product of a traditional way of thinking about females’” but was based on legitimate and non-arbitrary distinctions made by the military. He wrote, “[t]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” (emphasis added).

The Court ruled that the gender-based distinction was not unconstitutional because the draft was designed to recruit soldiers for combat duties, and because the military did not and could not place women in combat, the law was consistent in excluding them from registration. The reason Congress excluded women from registration is not because they are women, said Rehnquist, but rather because of the unrelated regulation prohibiting them from serving in combat roles.

With the Pentagon’s decision to remove the ban on women in combat, the Court’s logic no longer holds, and the government will find itself once again afoul of the Constitution, based on the decision that saved the Selective Service Act the last time. If the law faces a legal challenge, the courts would likely have to once again issue an injunction stopping Selective Service registration, unless Congress fixes the law to include the now combat-approved women.

But another possibility also presents itself, which is ending the Selective Service System altogether. Since registration was reactivated over three decades ago, it has cost taxpayers over $700 million. Scrapping it would save the government about $24 million a year, and with budget cuts and debt ceiling talks at the forefront of the national debate, getting rid of the outmoded and unnecessary agency could be a symbolic gesture of Congress’s commitment to fiscal responsibility. It isn’t politically impossible, either: in 1993 and 1999, the House of Representatives voted to dismantle it, although both times the measure was later retracted.