In an 8-page opinion, U.S. Senior District Judge Edward F. Harrington upheld the right of Congress to exempt women from Selective Service registration for a possible future draft. In doing so, the Court frequently cited the landmark 1981 decision Rostker v. Goldberg, in which the Supreme Court affirmed the constitutionality of America’s male-only draft registration system. 2
Judge Harrington stated unequivocally that the Judiciary has neither the power nor the competence to undertake the awesome responsibility to make policy in this area.
“…thus, [the Court] should defer to the will of Congress in its carrying out the most fundamental and the most crucial purpose for the establishment of government – ‘to provide for the common defense,’ 3 [and] to insure the security of the United States.
“If a deeply-rooted military tradition of male-only draft registration is to be ended, it should be accomplished by that branch of government which has the constitutional power to do so and which best represents the ‘consent of the governed’ – the Congress of the United States, the elected representatives of the people.” (pp. 7-8)
As reported in the February 2003 edition of CMR Notes, the litigation in question was filed about the same time that liberal Rep. Charles Rangel (D-NY) made national headlines by introducing legislation to include young women in registration for the draft. Five students in Boston, MA, (four male and one female) challenged the constitutionality of military registration for men only. (New York Times, Jan. 9, 2003)
The Plaintiffs’ attorney was Harvey Schwartz, a lawyer affiliated with the American Civil Liberties Union (ACLU), which had challenged male-only draft registration, without success, 22 years ago. Schwartz said he would base his case on the changed role of women in the military in the decade following the first Persian Gulf War.
The Court, however, agreed with Selective Service Director Lewis C. Brodsky in disputing the point. The Plaintiffs had failed, said the Court, to show that the “government interest advanced by having a gender-based classification” in the federal Military Selective Service Act (MSSA) has changed since the 1981 Rostker decision.
Draft for Combat Troops Only
Noting that “the Constitution does not require what the Rostker decision described as “gestures of superficial equality,” the court noted that:
“The Supreme Court, after a comprehensive evaluation of the MSSA’s legislative history, determined the government’s interest to be the establishment of a system that would facilitate a draft of combat troops.” (Rostker, at p. 76, emphasis in original)
“Plaintiffs have not pleaded any facts that would lead to a different conclusion, nor could they because the governmental interest in a piece of legislation is necessarily fixed at the time of its passage.
“…Therefore, as the governmental interest advanced by the MSSA remains the preparation for a draft of combat troops and plaintiffs concede women continue to be barred [by DoD policy] from ground combat, plaintiffs have failed to state a claim. (pp. 5-6)
The Court went on to recognize a fundamental principle that has been upheld by the Supreme Court in several major decisions:
“Furthermore, the fact that Congress has reconsidered the constitutionality of excluding women from Selective Service registration since Rostker is ‘certainly’ reason to treat its conclusion with the ‘customary deference’ accorded a coequal branch of government…(Rostker, p. 64)
“In a report accompanying the National Defense Authorization Act for Fiscal Year 1994, which repealed some of the statutory bars to women in combat, the House Armed Services Committee noted that the decision to lift those prohibitions should not ‘be construed as tacit committee concurrence in an expansion of the assignment of women to units or positions whose mission requires routine engagement in direct combat on the ground, or be seen as a suggestion that Selective Service registration or conscription include women.’ ” 4
Court Cites Presidential Commission Recommendation
The Court went on to quote the November 1992 Report of the congressionally authorized Presidential Commission on the Assignment of Women in the Armed Forces in amplifying the point that there is no evidence of official support for the Plaintiffs’ goal of subjecting women to the draft:
“[The] Commission adopted a blanket recommendations against imposing any requirements on women with regard to conscription, regardless of the assignments for which they are eligible in the Armed Forces. It determined that important government interests exist which are substantially related to excluding women from draft registration; e.g., the military effectiveness of our land combat forces.” (Emphasis added by Court) 5
The Court also reaffirmed the historic nexus between land combat assignments and Selective Service obligations. Even though female soldiers have served and will serve their country in many ways, women’s exemptions from assignments in direct ground combat units, such as the infantry, armor, Special Forces, and associated helicopters, remain in policy for many good reasons. To summarize, in units that directly engage the enemy on land, women do not have an “equal opportunity” to survive, or to help fellow soldiers survive.
As a consequence of that policy, said the Court in an interesting footnote, the exemption of young women from Selective Service registration is on solid ground:
“As the Supreme Court noted in Rostker, the number of women volunteers is unrelated to the aims of the registration system… ‘Women volunteers do not occupy combat positions; so encouraging women to volunteer is not related to concerns about the availability of combat troops. In the event of a draft, however, the need would be for combat troops or troops which could be rotated into combat.’ (Rostker, p. 16) Accordingly, the Court considers the increasing numbers of female volunteers irrelevant to this case.” (p. 5)
Lack of Congressional Support for a Unisex Draft
On June 10, 1980, the Senate Armed Services Committee summarized a number of reasons why the Committee was not persuaded, after many hearings, to support a legislative proposal to include young women in the draft. Despite the advocacy of then-President Jimmy Carter, the Committee Report affirmed that: “[A]ny attempt to assign women to combat positions could affect the national resolve at the time of mobilization, a time of great strain on all aspects of the Nation’s resources.”
After noting the significant contributions that women make in combat support units, the Committee added, “[A]n induction system that provided half men and half women to the training commands in the event of mobilization would be administratively unworkable and militarily disastrous.” (Emphasis added)
It is not likely that the draft will be reinstated unless there is a compelling need for great numbers of “combat replacements” (the technical term for soldiers deployed to replace those fallen in combat) in a future war. Nor will the draft be reinstated, for young men or both sexes, without sufficient support in Congress.
Judge Harrington noted that legislation sponsored in the House and Senate by Rep. Rangel and others—which would require young men and women to register with the Selective Service—is still pending. Said the Court, quoting Rostker at p. 66,
“[I]t is not for a district court to substitute its ‘judgment of what is desirable for that of Congress,’…It would be the very opposite of ‘healthy deference’ for this Court to hear this case while such legislation is pending before Congress, the body to which the Constitution assigns the power over the nation’s military.” (p. 7)
A Victory for the U.S. Constitution
Legal counsel for the Selective Service Administration, led by Department of Justice attorney Ms. Rupa Bhattacharyya, deserve thanks and congratulations for winning this case. Their victory, which was virtually ignored by major media, is especially important to young women who would have had to register for the draft if the Schwartz litigation had succeeded. (There are no indications that an appeal will be filed.)
Judge Harrington’s ringing re-affirmation of the principle of “deference to the military” is encouraging, especially in view of attempts by homosexual activist groups to use the Supreme Court’s recent Lawrence v. Texas decision. That controversial ruling, which struck down all laws regarding sodomy, is already being cited in new litigation challenging the 1993 law excluding homosexuals from the military.
If the same type of sound legal strategy is used by the Bush Administration to defeat those lawsuits, they will be defeated as well.
1. Samuel Schwartz et al. v. Lewis C. Brodsky, Director of the U.S. Selective Service and Thomas Reilly, MA Attorney General, Civil Action No. 03-10005-EFH, May 29, 2003.
2. Rostker v. Goldberg, 453 U.S. 57 (1981).
3. Referring to the Preamble of the U.S. Constitution.
4. H.R. Report 103-200, July 30, 1992, at 283, accompanying P.L. No. 103-160, added emphasis in original, quoted on p. 6.
5. Report to the President, November 15, 1992, p. 40, quoted by the Court on pp. 6-7. The Center for Military Readiness brought to the attention of Selective Service counsel the findings of the Presidential Commission, which did considerable research on the draft registration issue in 1992.