Rostker v. Goldberg

ROSTKER, DIRECTOR OF SELECTIVE SERVICE v.

GOLDBERG al. et No. Argued 80-251. March 1981 Decided June 25, 1981 Burger, Court, which opinion of the J., delivered Rehnquist, JJ., joined. Stevens, and Blackmun, Powell, Stewart, J.,C. and dissenting p. 86, J., post, filed Marshall, post, p. J., White, joined. J., Brennan, which opinions, in appellant. cause McCree argued General Solicitor Attorney General Assistant were briefs on the him With Martin, Deputy Attorney General Daniel, Acting Assistant Etkind, William Claiborne, Barbara E. General Solicitor H. Gallant. Mark Ranter, appellees. With Weinberg argued cause L.

Donald Savett, him Kohn, on the brief were Harold E. Stuart H. Pinzler, Ennis, Bruce J. Tribe* Isabelle Katz and Laurence H. Rehnquist opinion delivered the of the Court. Justice question presented Military is whether Selective Act, App. seq. (1976 Supp. Service S. C. 451 et ed. and § U. III), violates the Fifth Amendment States the United Constitution in authorizing regis require President tration of males and not females.

I given power under the Constitution “To support raise Armies,” provide “To and maintain a Navy,” and “To make Rules for Regu the Government and lation of the land and naval Forces.” Art. 12-14. I, 8,§ cls. Pursuant grant of authority has enacted Military Selective Service Act, App. seq. 50 U. S. 451 et § C. (1976 ed. Supp. III) (the and Act). MSSA or the Section 3 of the 62 Stat. 605, App. as 50 U. S. C. Act, amended, 453, § empowers by the President, proclamation, require reg istration of “every male citizen” and male resident aliens be ages tween the of 18 and 26. purpose registration The of this is to facilitate any conscription: eventual pursuant (a) to § Act, 62 Stat. as amended, App. 50 U. S. C. 454§ (a), persons those required register under 3 are liable for §

*Briefs of amici curiae urging by Rapps reversal were filed Dennis and A. David Stern for the Orthodox Draft; by Jewish Coalition on the and Stacy Nathan Lewin for Acker et al.

Briefs of amici curiae urging by affirmance were filed Daniel Marcus for Congressman al.; by Kenney Robert W. Kastenmeier et Paul for Men’s Rights, Inc.; by Brown, Phyllis Barbara Hart, A. Thomas Segal, J. N. and Judith Organization I. for the Women; .Avner National Judith L. Lichtman for Equity League Women’s Action Educational Legal Defense Fund et al. Popeo Paul

Daniel J. D. Kamenar Congressman filed a brief for Lawrence P. McDonald et al. as amici curiae.

training and service in the regis- Armed Forces. The MSSA tration provision beyond serves no other purpose providing pool for subsequent induction.

Registration for the under 3 was § discontinued in 1975. Presidential Proclamation No. (1971- 3 CFR 462 1975 Comp.), note following 50 U. S. C. App. §453. early 1980, President Carter determined that it was neces sary to reactivate the draft process.1 The im mediate impetus this decision was the Soviet in armed Afghanistan. vasion of Weekly Comp, of Pres. Doc. 198 (1980) (State of Address). the Union According to the ad ministration’s witnesses before the Senate Armed Services Committee, crisis resulting Southwestern Asia con vinced the President the “time has come” “to his use present authority to require registration necessary ... as a step to preserving or our enhancing security national inter ests.” Department of Defense Authorization for Appropria tions for Year Fiscal 1981: Hearings S. 2294 before the Senate Committee on Armed Services, 96th Sess., 2d Cong., 1805 (1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John P. White, Deputy Director, Office of Manage ment and Budget, Dr. Bernard Rostker, Director, Selective Service System, and Richard Danzig, Principal Deputy As Secretary sistant Defense). System Selective Service had been inactive, however, and funds were needed before registration. reactivating The President therefore recom mended that funds be transferred from the Department of Defense to the separate Selective System. Service H. R. Doc. No. 96-267, 2p. (1980). He also recommended that Congress take action to amend the MSSA to permit reg istration and conscription of women as well as men. See House Committee on Armed Services, Presidential Recom- 1 The President did not conscription. seek Since the Act was amended preclude conscription July 1, 1973, as of 92-129, Pub. L. 353, 85 Stat. 50 App. U. S. C. (c), any 467 conscription actual require § would further con gressional action. See Rep. S. 96-826, No. p. (1980). 155

61 mendations for Selective Service Reform —A Report to Con- gress Prepared Pursuant L. Pub. 96-107, 96th 2d Cong., Sess., (Comm. 20-23 Print No. 19, 1980) (hereinafter Presi- dential Recommendations), App. 57-61.

Congress agreed that it was necessary to reactivate the registration process, and allocated funds that purpose in a Joint Resolution which passed the House April 22 and the Senate on June 12. H. J. Res. 521, Pub. L. 96-282, Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those neces- sary register males. See Rep. No. 96-789, p. n. 1, p. 2 (1980); Cong. Rec. (1980) (Sen. Nunn). Al- though Congress considered the question great length, see infra, at 72-74, it declined to amend the MSSA to permit the registration of women.

On July 2, 1980, the President, by Proclamation, ordered of specified groups of young pursuant men to the authority conferred § 3 of the Act. Registration was to on July commence 21, 1980. Proclamation No. 82 (1980). CFR

These events year of last new breathed life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971 when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania chal- lenging the MSSA on grounds.2 several A three-judge Dis- 2Plaintiffs contended that the Act taking amounted to a property without process, due imposed involuntary servitude, rights violated free expression and assembly, was unlawfully implemented to advance an war, unconstitutional and impermissibly discriminated between males and females. The District Court plaintiffs’ denied application to convene a three-judge District Court suit, dismissed the Tarr, Rowland v. F. Supp. appeal, On Appeals the Court of for the Third Circuit affirmed the dismissal of all except claims claim, discrimination and remanded the case to the District Court to determine if this claim 62 claim consider the in 1974 to convened was

strict now before which is discrimination gender-based unlawful 1, the case to dismiss declined court July 1974, the us.3 On regis- authority to induct although moot, reasoning as under still were 1, supra, plaintiffs n. lapsed, trants had see registra- with in connection obligations affirmative certain more Nothing Tarr, Supp. F. 766. 378 Rowland v. tion. 1979, 6, Then, on June years. for the case five happened in governing rule to a local acting pursuant Clerk, the court Addi- dismissed. the case be cases, proposed inactive to moved ensued, and defendants discovery thereupon tional denied court The grounds. justiciability dismiss on various it an have before it did not dismiss, ruling motion to Sys- Service of the Selective operation record on adequate it. necessary to reactivate be action would and what tem 1980, July 1, Tarr, (1980). 292 On Goldberg Supp. F. v. who persons of “all male class the court certified a plaintiff App. C. under 50 U. S. subject or registered forces armed service training 453 or are liable § (h) 454, 456 App. §§ S. States under 50 U. C. of the United 589,4 (c).” Supp. 586, 509 F. and 467 three-judge of a court enough convening substantial warrant was plaintiffs (1970 ed.) and whether then-applicable under C. U. §2282 remand, On F. 2d 545 that claim. 480 standing had assert affirmative, resulting in the questions in the District Court answered both convening which decided the case below. three-judge court repealed as this was three-judge to hear claims authorizing courts such Act applicable 94-381, 2, 1119, remains 1976, 1 and 90 Stat. but Pub. L. §§ repeal, 1120. before 90 Stat. filed suits § Schlesinger 498, 500, Ballard, n. 3 v. 419 U. S. the Court stated in 3 As Equal (1975): as does the “Although no Protection Clause it contains Process Clause Amendment, Fifth Amendment’s Due Fourteenth engaging in discrimination that is prohibits the Federal Government Sharpe, Bolling process.’ v. due unjustifiable ‘so as to violative 497, 499.” U. S. July Court redefined entering judgment the District its When U. S. C. registered under 50 persons who are class to 11male include “[a] forces of in the armed training and service or are liable App. § July days On Friday, 18, 1980, three registration before was to commence, District opinion the Court issued an find ing that the Act violated the Due Process Clause of the Fifth Amendment permanently enjoined and the Government requiring registration initially under the Act. The court de standing that the plaintiffs termined had and case that the was ripe, challenged by determinations which are not here the rejected Government. Turning merits, the court plaintiffs’ suggestions equаl protection claim should , be tested under scrutiny,” rejected “strict and also defend

ants’ argument due in deference the area of military required application affairs of the traditional scrutiny” Applying “important govern test. 'minimum Boren, ment Craig interest” test articulated in v. 429 U. (1976), the court struck court down MSSA. The stressed that it not whether or extent was to what deciding combat, only women should registra serve in but the issue of tion, any and felt dispel this “should concern that we inappropriate mili injecting ourselves an manner into id., tary 599, affairs.” at 597. See also Supp., 509 F. proceeded nn. 17 and 18. The to examine the court then testimony presented Congress by hearing evidence military and the Executive representatives Branch, of the testimony “military on the basis of this concluded study, availability extensive is that opinion, backed materially registrants flexibility, would increase women Id., rejected contrary It hamper Congress’ it.” at 603. Congress’ of what part because it viewed as determination declining register yet positions” “inconsistent expand opportuni them and their funds to recruit spending military. Ibid. ties in the (h) App. 454, (c); under 50 S. C. and 467 United States U. §§ subject under are also either Presidential Procla- who (July 1980) presently registered 2, or are

mation No. 4771 with System.” Supp., 509 F. at 605. Selective Service immediately notice Service filed a Director of Selective July 1980, Saturday, appeal day, and the next Justice Justice for capacity as Circuit acting in his Brennan, stayed enjoining order Third the District Court’s Circuit, Registra S. 1306. 448 U. registration. commencement noted 1980, we Monday. tion next On December began the probable jurisdiction. 449 U. S. 1009.

II constitutionality of an to upon judge Whenever called and) duty that delicate Congres Act of most gravest s -“the Holden, Blodgett v. perform,” called to upon Court is accords (1927) J.) S. Court 142, (Holmes, 275 U. 148 —the Columbia “great Congress.” to of weight the decisions Commit Broadcasting System, Inc. Democratic National v. tee, coequal Congress The is a 94, (1973). 412 U. S. 102 we oath branch of the same government whose Members take Jus do States. As uphold to the Constitution of the United Commit Refugee tice Joint Frankfurter noted in Anti-Fascist opin McGrath, (1951) (concurring tee 164 v. U. S. is regard we “due fact that this ion), must have to sitting judgment but is exercising primary judgment a the Con to observe upon those who taken the oath also have carrying gov responsibility stitution and who have the judgments customary ernment.” The deference accorded the Congress Congress when, here, as certainly appropriate Act’s constitution specifically of the question considered the ality. 96-826, (1980); pp. 159-161 See, g., Rep. e. S. No. id., Cong. (1980) (Sen. Warner); Rec. 13880-13882 (Sen. Hatfield). custom merely case'involving a not, however,

This is The case ary decisions. congressional deference accorded de authority national Congress’ in the context of over ^arises has other area fense in no military affairs, perhaps and and the Court accorded Congress greater deference. In rejecting Congress women, explicitly upon relied its powers constitutional under I, 8, § Art. cls. 12-14. “specific section of the findings” Report of the Senate Armed adopted by Services later both Committee, Houses Con began by stating: gress, I,

“Article séction 8 of ex- the Constitution commits clusively Congress to powers support raise armies, provide and maintain a make rules Navy, and regulation forces, Government and of the land and naval pursuant powers to these it lies within the discretion expansion determine the occasions for of our Forces, Armed and the means best suited such expansion necessary.” it prove Rep. should No. 96- 826, supra, at 160.

See also S. No. Rep. 96-226, p. Court has This consistently recognized Congress’ power” “broad constitutional to raise and regulate navies, Schlesinger armies and Bal v. lard, 510 (1975). U. S. As the con Court noted in sidering challenge to the selective service laws: “The consti power tutional of Congress support to raise armies and necessary make all proper laws and to that end is broad and sweeping.” O’Brien, 367, United States v. 391 U. S. 377 (1968). States, Lichter v. 742, See United 334 S. 755 U. only scopе Congress’ is the power

Not constitutional competence part this area but the lack of broad, In Gilligan Morgan, the courts is marked. v. 101, 413 S.U. (1973), the Court noted: is difficult to of governmental conceive an area

“[I]t activity in which competence. the courts have less The subtle, complex, professional to decisions as the com- military training, position, and control of a equipping, essentially professional military force are judgments, 66 always

subject Legislative civilian control of the Executive Branches.”

See also Willoughby, v. 345 S. 83, (1953).5 U. 93-94 Orloff operation healthy legislative of a deference to executive judgments military the area of affairs is evident in several recent Levy, decisions of In Parker v. this Court. 417 U. 733, 756, (1974), S. 758 rejected vague the Court both ness and overbreadth challenges provisions of the Uniform Code of Military noting Justice, “Congress permitted to legislate both with greater breadth and with flexi greater bility” when the statute governs military society, and that military members of the are not excluded from “[w]hile protection granted by the First the different Amendment, character of military community military and of mis sion requires a different application protections.” of those Henry, v. (1976), U. the Court noted Middendorf considering process due claims in context of a summary court-martial it give particular “must deference to the determination of Congress, authority made under its regulate the land forces, and naval U. Art. I, 8,” S. Const., § concerning rights Id., what were available. at 43. See also id., at 49-50 (Powell, J., concurring). judg Deference to the ment of other branches in the area of affairs also played major a role in Greer Spock, v. U. S. 837-838 (1976), where the upheld political a ban on speeches by civilians on military Glines, a base, and Brown v. S.U. 348 (1980), upheld where the Court regulations imposing prior right restraint on the petition of military personnel. cert, States, Simmons v. United See also (CA5), 406 F. 2d denied, (1969) (“That 395 U. S. 982 competent this court is not em or powered to sit super-executive as a authority to review the of the decisiоns Legislative Executive and government branches of in regard to the neces sity, selection, method of composition and of our defense forces is obvious and needs no discussion”). further

67 States Wilson, United S. 137 (1953); Burns v. 346 U. also See (1931). MacIntosh, 622 283 U. S. v. a due considered Ballard, supra, Schlesinger v.

In Navy policy males, to the challenge, brought process at in which to than males longer period females a according The Court to continued service. necessary promotions tain un held discriminations gender-based distinguished previous v. Frontiero Reed, ‍​​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​‌​‌​​​‌​‌​​‌‌‌​​​‌​​‌​‌‌‌‍and (1971), in Reed v. 404 U. lawful classi cases, the In those Richardson, S.U. See generalizations.” on “overbroad were based fications the Court it, however, In before the case S., at 506-507. U. noted: naval offi- men and women different treatment

“[T]he generaliza- and overbroad not archaic reflects, . cers . . male fact that the demonstrable tions, instead, but, similarly situated Navy are not in the line officers female service. professional for opportunities respect with to current restrictions challenged has Appellee most sea in combat and participation women officers’ Id., duty.” at 508. not have women did restrictions, of the combat light it therefore men, as promotion opportunities

same between distinguish to Congress unconstitutional was not them. disregard is free to say to

None of this is military affairs. the area of it acts in when the Constitution area, subject remains any other, Congress In that as Milligan, parte Clause, Ex Process see Due limitations Ware- & Kentucky Distilleries v. (1866); Hamilton 4 Wall. limi- (1919), but tests Co., 251 U. S. house differ because of may applied tations respon- ultimate abdicate our do not of course We context. simply rec- question, but constitutional sibility decide the such deference requires itself Constitution ognize Broadcasting System, Columbia See choice. congressional Committee, Democratic National at 103. Inc. v. S., U. particularly deciding question the before us we must is judgment our of what desirable not to substitute careful or our own of evidence for a Congress, of evaluation for that Legislative the Branch. reasonable evaluation recognize appropriate District purported to Congress body exercising when was ness deference military constitutionally authority affairs, over delegated its not here Supp., 509 F. but it stressed that “[w]e military day-to-day concerned with or conduct operations Ibid. military into which we have no intrude.” desire Appellees civilians, also stress that this case involves not the registration mili military, impact and that “the on the tary only Appellees is indirect and attenuated.” Brief omitted). (emphasis find efforts to divorce reg We these istration from the military context, and national defense with singularly unper all the deference called for in context, O’Brien, United States v. suasive. (1968), 391 U. S. 367 rec ognized broad deference due selective Registration service area before us in this case. is end not an in itself in the civilian step world but rather the first in the military process induction into the one, Congress specifi and cally linked its consideration of induction, see, g., S. Rep. e. 96-826, pp. 156, No. Congressional judgments concerning registration and on the draft are based judgments concerning military operations g., e. needs, see, id., (“the point at 157 ap discussion of starting any propriateness of registering women for the draft is the ques proper

tion role of women in combat”), the defer unquestionably ence judgments necessarily due latter required in assessing the former Although as well. the Dis it trict Court stressed that was not intruding military ques tions, opinion its was based on military assessments of need flexibility in g., e. a time of See, mobilization. F. It Supp., blinking at 600-605. would be reality say our precedents requiring deference to Congress in military affairs implicated are not by the present case.6

The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress area of affairs and national security, Court should scrutinize the only MSSA to determine if distinction drawn between men and women beаrs a rational relation to legitimate some Government purpose, see S.U. Railroad Retirement Fritz, Bd. v. 449 S.U. 166 (1980), and should not examine Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court County, Sonoma of U. S. 464 (1981); Craig Boren, v. S.U. 190 (1976); Reed v. Reed, supra.7 We do think that the guar substantive antee of due process or certainty the law will be advanced by any further “refinement” the applicable sug tests as gested by the Government. Announced degrees of “defer ence” to legislative judgments, just as levels “scrutiny” of 6 Congress recognized that its decision on judg involved ments military on needs operations, and and that its decisions were particular entitled to deference: Supreme “The Court’s recent most teach ings in equal protection the field of cannot be read in isolation from its opinions giving great judgment deference to the Congress of military and in dealing commanders management military [with] of forces and requirements military discipline. The Court unmistakably has made it clear that even our most fundamental rights constitutional must in some circumstances be modified light in the needs, and that Con gress’ judgment necessary as to what preserve to our security national great is entitled to deference.” Rep. S. No. 96-826, pp. (1980). 159-160 Congress’ judgment Deference to awas consistent and dominant theme in lower court assessing decisions present g., e. See, claim. United Clinton, States v. 310 F. Supp. (ED United States v. 1970); La. Offord, Supp. 1117, (ED 373 F. 1974). Wis. 7 It is “[g]ender clear that rejected has never been impermissible as an classification in all instances.” Kahn Shevin, v. 351, 356, U. S. n. 10 making this observation the Court noted “Congress has not so far drafted women into the Armed Services, 50 U. C. App. 454.” Ibid. § classi- applies particular that it this Court announces which readily may too by all legislative body, fications made In this justify a result. facile abstractions used become Congress, upon to decide whether the courts are called case authority, grant acting explicit under an constitutional of indi- explicit guarantee аn transgressed that action has Simply authority so conferred. rights vidual which limits the “military” one hand on the labeling legislative decision automatically guide other does not “gender-based” or on the constitutional a court to the correct result. Boren, v. Craig deny one could that under the test

No supporting raising interest supra, the Government’s Congress interest.” “important governmental armies is an two al- and debated carefully its considered Committees was interest: first means of ternative furthering other only potential conscription, males for register alter- chose the former register both sexes. was equal protection challenged that is native. When decision not which alter- a court must decide is grounds, question decision- chosen, primary had it been the native it would have equal by Congress denies but whether that chosen maker, protection of the laws. cases that number of imposing it be denied

Nor can suggest judicial defer- previously cited authority is at its congressional exercise to such ence congressional author- legislative action under the apogee when regula- make rules and ity support to raise and armies and noted, challenged. previously As governance for their is tions The recon- does not mean abdication. supra, 67, at deference our own the deference due ciliation between perhaps instanced responsibility best constitutional Ballard, we stated: Schlesinger S., 510, where v. U. busi recognized primary is the “This Court has fit fight or be fight ready of armies and navies ness occasion arise.’ S. ex Toth wars should the rel.] [U. Quarles, v. 350 U. 17. See also Wil v. Orloff loughby, 345 U. S. 94. The responsibility for deter mining how best our Armed Forces shall attend to business rests with Congress, see U. S. Const., Art. I, 8,§ cls. 12-14, and with the President. See U. S. Const., II, Art. 2,§ cl. 1. We say cannot that, in exercising its broad power constitutional here, Congress has violated the Due Process Clause of the Fifth Amendment.” Or, put as a generation ago in a case not involving any claim of gender-based discrimination:

“[JJudges are not given the task of running Army. The respоnsibility for setting up channels through which . . grievances . can be considered and fairly settled upon rests the Congress upon the President of the United States and his subordinates. con- stitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be scrupulous as inter- fere with legitimate Army matters as the Army must be scrupulous not to intervene judicial matters.” Orloff Willoughby, v. S.,U. at 93-94.

Schlesinger v. Ballard did not purport to apply a different equal protection test because of the military but context, did stress the deference congressional due among choices alterna- tives exercising the congressional authority raise and support armies make rules for their governance. light of the floor debate Report and the of the Senate Armed Services Committee hereinafter discussed, apparent it is Congress fully was aware not merely of many the and facts figures presented to by it who witnesses testified its before Committees, but of the current thinking as to the of place in women the Armed Services. In such case, we cannot ignore Congress’ authority broad by conferred the Constitu- tion to raise support and armies when we urged to declare prefer- in alternative of one choice studied its unconstitutional goal. furthering for to another ence Ill gender-based the of several different quite case This appel- despite that, in considered have we cases

^discrimination or “unthinkingly” not act did Congress assertions, lees' for Brief reason.” any considered for and not “reflexively for women registering of question The 35. Appellees attention national considerable only received was but also debate, public wide-ranging subject of was debate, floor hearings, in Congress by considered extensively Con- of Houses both held Hearings in committee. authorization for request the President's response gress evidence testimony and extensive adduced register women Hearings on 2294; on S. Hearings See the issue. concerning thе Subcommittee before Women, of Registration R.H. Armed on House Committee of the Personnel Military on Hear- House (hereafter (1980) Sess. Cong., 2d Services, 96th pre- hearings held the other on built hearings These ings). question.8 same to the addressed year vious of registration for provide declined The House funds allocating the Joint Resolution passed it when 8601- Cong. Rec. See System. Service the Selective Joint considered Senate When (1980). amendment an debate, defeated, extensive Resolution, it after registration authorized have effect would which Id., earlier, noted As at 13876-13898.9 women. Military Under the Registration Procedures for Reinstitution See the Sub 226 before S. Hearing on S. Act: Service

Selective on Committee Senate Manpower and Personnel on committee 109 and (1979) (Hearing S. Services, Cong., 1st Sess. 96th Armed for the call the President's before 226). months Seven S. idea, rejected see Committee Services women, Armed Senate 96-226, pp. 8-9 Rep. No. be made available no funds “shall provided amendment

H. J. Res. 521 only authorized funds sufficient to cover the registration of males. The Report of the Senate Committee on Appropriations on H. J. Res. 521 noted that the amount authorized was below the President’s request “due to the Committee’s decision not provide $8,500,000 to register women,” and that amount “[t]he by recommended the Com- mittee would allow for registration of young men only.” Rep. S. No. 96-789, p. 2 (1980); see 126 Cong. Rec. 13895 (1980) (Sen. Nunn).

While proposals register women were rejected in being the course of transferring funds to register males, Committees in both Houses which had conducted hearings on the issue were also rejecting the registration of women. The House Subcommittee on Military Personnel of the House Armed Services Committee tabled a bill which would have amended the MSSA to authorize registration of H. women, R. March 6, 1980. Legislative Calendar, House Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980). The Senate Armed Services Committee rejected a proposal to reg- ister women, as it year had one before, see S. Rep. No. 96-226, pp. 8-9 (1979), adopted specific findings supporting its action. See S. No. Rep. 96-826, pp. 156-161 (1980). These findings were stressed in debate in the Sen- ate on Joint Resolution 521, see 126 Cong. Rec. 13893-13894 (1980) (Sen. Nunn); id., at (Sen. 13880-13881 Warner). They were later specifically endorsed House and Senate conferees considering the Fiscal Year 1981 Defense Authoriza- tion Bill. See S. Conf. Rep. 96-895, No. p. 100 (1980).10 implementing system which does not include women.” 126 Cong. Rec. 13876 10The findings were before the conferees because the Senate Armed Services Committee had provision added a to the 1981 Defense Authoriza tion Bill authorizing the transfer of register funds to young men as a stopgap measure should Joint Resolution 521 fail. See Rep. S. Conf. No. 96-895, at 100. adopted findings by passing Later both Houses the Re- port. Cong. 23126, 126 Rec. 23261 The Senate than a Report, therefore, considerably significant is more in typical report single House, findings of a and its are effect findings Congress. of the entire ex- clearly

The establishes that the foregoing decision “ by registration women from was not the 'accidental product way thinking of a traditional about females/” 313, Webster, (1977) v. (quoting ano 430 U. S. 320 Cali Calif Goldfarb, 199, (1977) J., v. con U. (Stevens, fano M., curring judgment)). n. S., Michael 450 U. at (plurality opinion), rejected we a similar argument because reject action Legislature considering California ing proposals to make a challenged statute on discrimination gender-neutral. grounds for rejecting argu cause considerably ment stronger here. The issue was consid great length, Congress clearly ered expressed pur its pose Westcott, and intent. Contrast v. S. 76, 443 U. Califano (1979) (“The gender qualification . escaped virtually . . hearings unnoticed and floor debates”).11 For the same reasons reject appellees’ argument we we constitutionality must consider of the MSSA solely on the basis of expressed by the views Congress in 1948, when the MSSA was first enacted in its modern Contrary form. suggestions appellees amici, and various reliance legislative history of Joint Resolution 521 the ac- tivity of the various Committees of the 96th Congress con- sidering of women not does violate sound principles appropriations legislation should be con- agree Nor can we with the characterization of the in the MSSA Brief for Organization National for Women as Amicus Curiae aas law which preclude[s] or performing “coerce[s] as a class from tasks jobs they or capable,” of which suggestion or the that this case involves military.” Id., exclusion of women from the Nothing “[t]he at 19-20. any way opportunities MSSA restricts in for women to volunteer service. sidered as modifying substantive legislation. Congress did not change the MSSA in it but did thoroughly recon- sider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional va- lidity of the exemption.

The MSSA established a plan for maintaining “adequate armed strength ... to insure the security of [the] Nation.” 50 U. S. C. App. §451 (b). Registration is the first step “in a united and continuous process designed to raise an army speedily and efficiently,” Falbo v. United States, 320 U. S. 549, 553 (1944), see United States Nugent, v. 346 U. S. 1, 9 (1953), and Congress provided for the reactivation of registration in order to “provid [e] means for early delivery of inductees in an emergency.” S. Rep. No. 96-826, supra, at 156. Although the three-judge District Court often tried to sever its consideration of registration from par ticulars of induction, see, g., e. 509 F. Supp., at 604-605, Congress rather clearly linked the need for renewed regis

tration with its views on the character of a subsequent draft. The Senate Report specifically found that ability “[a]n mobilize rapidly is essential preservation of our na tional security. ... A registration functioning system is a part vital of any mobilization plan.” S. Rep. No. 96-826, supra, at 160. As Senator Warner put it, “I equate registra tion with the draft.” Hearings on S. 2294, at 1197. See also id., at (Sen. 1195 Jepsen), 1671 (Sen. Exon). Such an ap proach is certainly logical, since under the MSSA induction

interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing

pool for the draft. Any assessment of the congressional purpose and its chosen means must therefore consider the registration scheme as a prelude to a draft in a time of na tional emergency. Any other approach would not be testing the Act in light of the purposes Congress sought to achieve. 76 would which draft, future any determined charac be would scheme, by the facilitated

be Report Senate The troops. combat for need by a terized Houses, by both adopted later finding specific in a explained, sce wartime in a ordered be were mobilization “[i]f re combat be for would need manpower primary nario, the id., at see (1980); 160 96-826, p. No. Rep. S. placements.” by the before a year made one echoed conclusion This 158. 6 2-3, pp. 96-226, Rep. No. S. Committee, see Senate same inbe would shortage “the it, put Jepsen Senator As Hearings drafts.” have why you That arms. combat 126 Jepsen); (Sen. 1195 id., at also See at 1688. 2294, S. on determi Congress’ Nelson). (Rep. (1980) Cong. Rec. a draft if troops combat for would need nation testimony adduced sufficiently supported was place took their make free courts so hearings at 2294, at Hearings on See question. on judgment own (Prin Bronars); Gen. Lt. Corps (Marine 1528-1529 (Lt. Clark); Army Secretary of Assistant Deputy cipal (As Hearings House Meyer); (Gen. Yerks); Gen. also Pirie). See Manpower Secretary Defense sistant Rogers). (Gen. and S. S. 109 Hearing prepare towas therefore, registration, purpose troops. combat are group, aas men unlike however, group, aas Women participation on the restrictions The for combat. eligible not are statu Force Navy Air and in combat in of women “women III), Supp. ed., (1976 § 10 U. C. tory. Under in aircraft or vessels duty on assigned may be § S. C. 10 U. under missions,” and combat in engaged assigned “may not Force Air of the members female and Army The missions.” combat engaged in aircraft duty mat as a combat of women use preclude Corps Marine spe 34, 58. App. 86, See policy. of established ter of women exclusion endorsed recognized сifically combat in exempting women from registration. In the words of the Senate Report:

“The principle that women should not intentionally routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally sup- ported by military leaders who have testified before the Committee .... Current law and policy exclude women from being assigned to combat our military forces, and the Committee reaffirms policy.” S. Rep. No. 96-826, supra, at 157. The Senate Report specifically found “[wjomen should not be intentionally or routinely placed in positions combat in our military services.” Id., at 160. See S. Rep. No. 96- 226, supra, at 9.12 The President expressed his intent continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat.13 Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U. S. 498 (1975), we must examine appellees’ constitutional claim concerning registra- tion with these combat restrictions firmly in mind.

. existence of the combat restrictions clearly indicates for basis Congress’ decision to exempt women from reg- istration. The purpose 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, therefore decided not to register them. Again turning to the Senate Report:

“In the Committee’s view, the starting point any major No country has women in combat jobs in their standing army. App. See 143. 13See Brief Appellees 1-2, 2n. (denying any concession of the validity of combat restrictions, but submitting restrictions are irrelevant present case). See App. also 256. women registering appropriateness of the

discussion role of women proper of the question is the for the of women the use precluding policy . . . The in combat. impor- most view, is, in Committee’s combat registration including not women for rеason tant 157.14 at 96-826, supra, No. Rep. S. system.” for military need stressed District Court The As registration. their issue of to the irrelevant was women constitutionally re- could not “Congress it: put that court or citizens only MSSA of black under registration quire religious any or single political out or only citizens, white persons sufficient contain groups those because simply group P. System.” Service the Selective fill the needs The rea- point. is beside reasoning 596. This Supp., at mili- because is not registration exempt are son women oh not a case This drafting men. tary be met needs can similarly two one of choosing burden arbitrarily or with an all-black the case would be as groups, such situated all-Repub- or an all-Lutheran, or or an all-Catholic all-white, women, be- Men and registration. all-Democratic lican or women, simply on restrictions the combat cause for or registration of a draft purposes for similarly situated a draft. only men, to authorize decision

Congress’ Congress focused suggestion that since Marshall’s Justice the Court male-only registration authorizing troops in need for combat program unconstitu male-only registration declare the forced to could “be opinion. our misreads peacetime draft of a tional,” post, the event aof troops in the event combat-eligible need for combat or perceived 96-826, g., Rep. No. See, e. draft. a wartime not limited draft was “[registering women with problems (considering associated at 157 peace positions in assigning to combat or assignment to combat combat between (need rotation id., at 158 time”) supplied); (emphasis war”). peace and positions “[i]n and noncombat

79 therefore, does not violate the Due Process Clause. ex emption of women from only sufficiently is not closely but also related to Congress’ purpose authorizing registration. M., See Michael S., (plurality U. at 472-473 opinion); Boren, v. Craig (1976); U. S. 190 Reed v. Reed, 404 (1971). U. S. 71 Congress The fact that the and Executive have decided that women should serve in com fully justifies bat Congress in not authorizing registra their tion, since the purpose of registration is to of develop pool potential combat troops. Schlesinger As was the case in v. supra, gender “the classification not individious, Ballard, realistically but rather reflects the fact that the are not sexes similarly M., situated” in this case. supra, Michael at 469 (plurality opinion). The requires Constitution that Con gress similarly treat persons situated similarly, not it engage in gestures superficial of equality.

In holding the MSSA constitutionally invalid the District heavily Court relied on the President’s decision to seek au- thority register and testimony of of members military Executive Branch and the support of that de- See, g., cision. e. Supp., 603-604, 509 F. and n. 30. As by stated the administration’s witnesses before Congress, how- ever, President’s “decision to ask for authority register women is based on equity.” Hearings (statement House of Secretary Assistant of Defense Pirie and Director of Selective System Service Rostker); see also Presidential Recommen- 3, 21, 22, App. 35, 59, dations 60; on Hearings 2294, at 1657 S. (statements of Executive Associate Director of Office of Man- agement Budget Wellford, and Director of Selective Service System Principal Deputy Secretary Rostker, Assistant of Defense Danzig). This was also the testimony basis Id., military officials. (Gen. Meyer), (Gen. at 710 Allen). Report, evaluating testimony The Senate before Committee, recognized argument for registra- “[t]he tion and induction of women ... is not based on military 96- No. Rep. equity.” considerations on but necessity, entitled, certainly was p. regulate raise powers its constitutional exercise need question focus navies, armies Senate Nunn Senator As “equity.”15 than rather it: put Services Committee Armed found We detail. very great into went committee “Our by any wit- necessity cited military no was there

that females. of registration the for nesses registra- the favored who those point main “The of in favor they were was made females of tration course, a of is, which issue, equality the of because this and necessity, military far as as But view. legitimate the considering in hópe, I primarily, arewe is what necessity military is no there bill, registration overall 13893 Rec. Cong. 126 this.” for talking (“You are Holt) (Rep. Hearings House also See military”).16 talking about I am equity. about favor in testified who experts military the Although drafting actual uniformly opposed registering and all, is, authority after of constitutional grant The military officials. or Executive to the not Congress’ termed it on what focused also District Court volunteer women to encouraging in positions” “inconsistent one service, on in the opportunities their expanding and service other. on the draft and registration from them exempting hand, and appreciate reasoning fails This 603-604. at Supp., F. registra volunteers encouraging women by served purposes different positions, combat occupy not do volunteers Women draft. tion about to concerns related not volunteer is encouraging women so need however, the draft, aof event troops. In availability combat into combat. rotated be troops could which troops or for combat would in clearly inconsistent positions Congress’ supra, at 76. See Congress’ understand failed to District Court as such treating them encour purpose in its distinguished as registration behind purpose volunteers. aging women

women, g., e. see, on S. Hearing 109 and (Gen. Rogers), there was testimony the event of a 650,000 the military could absorb 80,000 some female induc Hearings tees. on S. 2294, at 1661, 1828. The 80,000 would be used to fill noncombat positions, freeing to go men front. relying testimony striking down the MSSA, the District Court palpably authority exceeded its when it ignored Congress’ considered response to this fine of reasoning.

In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress did simply not consider it worth the added burdens of including women in draft plans. “It has been suggested that all women be registered, but only a handful actually be in- ducted an emergency. The Committee finds this a con- fused and ultimately unsatisfactory solution.” S. Rep. No. 96-826, supra, at 158. As the Senate recognized Committee year before, “training would be needlessly burdened women recruits who could not be used in combat.” S. Rep. No. 96-226, p. 9 (1979). See also S. Rep. No. 96-826, supra, (“Other at 159 problems administrative such housing as and different treatment regard with to dependency, hardship and physical standards would also exist”). It is not for this to dismiss problems such as insignificant in the con- military text of preparedness and the exigencies of a future mobilization.

Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether or 80,000 less, it could be bymet volunteers. id., See id., 160; at at (“Because 158 of the combat restrictions, the need would be primarily men, for and women volunteers would fill re- the quirements for women”); Hearings House (Rep. Holt). also See Hearings on S. 2294, at (Gen. Rogers). Most significantly, Congress determined that staffing non- positions combat with during women a mobilization would military of goal important to the detrimental positively be flexibility. preclude reasons military other

. . [T]here Military serving. women numbers very large move able commander flexibility requires the at located not ships or Units ships quickly. or units never- front scheduled previously not or front necessary. if action into move be able must theless is personnel rotation war, significant In and peace two into divide should necessary. We permanent one in and combat permanent groups —one must positions non-combat numbers Large support. duty return troops can combat to which be available at supra, 96-826, No. Rep. S. redeployed.” being before 158. see 160; id., at findings, specific repeated point was

The sum, 9. at supra, 96-226, Rep. No. S. also con- 80,000 testimony that carefully evaluated and of a in the event employed usefully could be scripts re- constitutional its exercise permissible in the it rejected at on S. Hearing See also sponsibility. District 1682. at Hearings on S. Rogers);17 (Gen. quotation: testimony merits Rogers' General Senator, of, sight lost thing is often Rogers. which One “General back reach Army had has often war, during emergency in an base, operating supporting elements base, support into into is, to emergеncy; in an the ranks soldiers pull forward fill front in the put them suit a tanker give them a rifle or them hand ranks. time, I believe one did that at Patton General “Senator WARNER. Bulge. Battle of Rogers. Absolutely. “General consists the rear operating base support base “Now, if reach opportunity have women, we don’t then large measure placed in a women should forward, because pull them back and too, that, enters So my opinion. tank, in position or in a fighting forward Court was quite wrong in undertaking an independent eval- uation of this evidence, rather than adopting an appropri- ately deferential examination Congress’ evaluation of that evidence.

In light of the we foregoing, conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordingly

Reversed. Justice White, with whom Justice Brennan joins, dissenting.

I assume what has not been challenged in this case—that excluding women from combat positions does not offend the Constitution. Granting that, it is self-evident that during if for war, all noncombat mobilization military positions must be filled combat-qualified personnel available to be moved into combat positions, there would be no occasion whatsoever to have any women in the Army, whether as or volunteers inductees. The appears to say, ante, at 76-77, that Congress- concluded as much and that we should accept that judgment even though the serious view of the Executive Branch, including the responsible military services, tois contrary. The position Court’s in this regard is most unper I suasive. perceive little, if any, indication that Congress itself concluded that every position in the military, no matter how far removed from must combat, be filled with combat- ready men. Common sense experience in recent wars, where women volunteers were employed in substantial num bers, belie this view reality. It should not be ascribed to Congress, particularly in the face of the testimony of military authorities, hereafter referred to, there would be a sub- equation when one considers subject of the utility of women under contingency conditions." be could that services in the positions of number stantial mobilization, during peacetime both by filled for combat. ineligible they though even all if to reversal a agreeing difficulty little have I also would adversely without wartime serve could who the women obtained be predictably could readiness combat affecting com- protection equal the event, In that through volunteers. United require the not would Fifth Amendment of the ponent the population segment large and a through, go States essentially useless expensive with, the be burdened agree I cannot again But women. registering procedure or concluded ante, that Court, see with services of the that each indicates record legislative positions all fill volunteers rely on women could of mobilization. in the event eligible might they be which supports it, I understand as contrary, the record theOn to con- have would services finding that Court’s District combat- for which positions fill 80,000 persons least script at position The consistent required. be men ready would their was representatives Department the Defense could who draftees of women number of the estimate best major event of in the by the services productively used first six over 80,000 approximately would be mobilization Com- Senate before on S. Hearings See months. 1681, 1688 Sess., Cong., 2d 96th Services, on Armed mittee Subcommittee before H. R. 6569 Hearings on (1980); Serv- on Armed House Committee of the Military Personnel took into number This 2d Cong., Sess., 96th ices, Dep- volunteers, see of women number the estimated account 8; Bernard Rostker Service of Selective Director osition of De- Secretary Deputy Assistant Principal Deposition of unsup- single, for a Except 276. App. Danzig, Richard fense to the Report Senate in the statement ambiguous ported, requirements fill the would volunteers “women effect Congress rejected indication no therе is women,” Defense Department’s figures or relied upon an alternative set of figures. Of course, the division among us indicates that the record

in this respect means different things to different people, I would be content to vacate the judgment below and remand for further hearings and findings on this crucial issue. Absent that, I however, agree cannot the record supports the view that all positions for which women would be eligible in wartime could and would be filled female volunteers.

The Court also submits that because the primary purpose of registration and conscription is to supply combat troops and because the great majority of noncombat positions must be filled by combat-trained men ready to be rotated into com- bat, the absolute number positions for which women would be eligible is so small as to be de minimis and of no moment for equal protection purposes, especially in light of the ad- ministrative burdens involved in registering all women of suitable age. There is some sense to this; but at least on the record before us, the number of women who could be used in the military without sacrificing combat readiness is not at all small or insubstantial, and administrative convenience has not been sufficient justification for the kind of outright gender-based discrimination involved in registering con- scripting men but no women at all. As I understand record, then, in order to secure the personnel it needs during mobilization, the Government can- not rely on volunteers and register must and draft not only to fill positions combat and those positions noncombat must be filled by combat-trained men, but also to secure the personnel needed for jobs that can be performed by persons ineligible for combat without diminishing military effective- ness. The claim is providing the latter category of positions, Congress is free to register and draft only men. I discern no adequate justification for this kind of discrimi- due all with Accordingly, women. men between nation I dissent. respect, joins, Brennan whom with Justice Marshall,

Justice dissenting. most of the on one imprimatur its today places

The Court about canards of “ancient expressions remaining public potent Corp., Marietta Martin Phillips v. women,” role proper It concurring). J., (1971) 542, 545 (Marshall, S.U. reg- not females but males requires a statute upholds excludes categorically thereby which draft, and for the ister I be- Because obligation. civic fundamental from a Constitu- with inconsistent decision Court’s lieve I laws, dissent. protection equal of guarantee tion’s I

A opinion the out set is litigation to this background that discus repeat I not will 59-64, and ante, at Court, the of only ques the however, that emphasis, It bears here. sion of the exclusion whether is this case presented tion Act, 50 Service Military Selective the under registration (MSSA), III) Supp. ed. seq. (1976 et 451 § App. S. C. U. Proc of the Due component equal protection the contravenes purpose the Although Amendment. Fifth the of Clause ess civilians drafting preparations assist is to constitu rule on asked not we military, into ad With conscription,1 governing a statute tionality of spe was MSSA Forces, the Armed All-Volunteer vent of July 1, as conscription preclude amended cifically App. S. C. 353, U. 50 Stat. 85 (35), (a) 92-129, 101§ L. Pub. re- therefore would reactivation (c), and § 467 litiga 1 this background to lengthy discourse Court’s Given bury reference sole its chooses that the interesting tion, it 1. ante, 60, n. See footnote. fact in a

87 quire legislative a amendment. See S. Rep. No. 96-826, p. 155 Consequently, we are not called upon to decide whether either men or women can be drafted at all, whether they must be drafted equal numbers, they what order should be drafted, or, once inducted, how they are to be trained for their respective functions. In addition, this case not does involve a challenge to the or policies statutes prohibit female members of the Armed Forces from serving in combat.2 It is with this understanding that I turn to the task at hand.

B By now it should be clear that statutes like the MSSA, which discriminate on the basis gender, must be examined under “heightened” scrutiny mandated by Craig Boren, v. 429 U. (1976).3 190 Under this test, gender-based clas sification cannot withstand challenge constitutional unless thе classification is substantially related to the achievement of an important governmental objective. Kirchberg Feenstra, v. S.U. 455, 459, 459-460 (1981); Wengler v. Druggist Mutual Co., Ins. U. S. 142, 150 (1980); Westcott, v. Califano U. S. Orr, 84 (1979); Orr v. S. 268, U. 278 (1979); Craig Boren, v. supra, at 197. applies This test whether the 2 By statute, female members of the Air Navy Force and may assigned to vessels engaged or aircraft in combat missions. See U. (1976 S. C. ed., Supp III), § Although §8549. there are no statutory restrictions on assignment the of women to Army combat in the and the Corps, Marine both services have policies established preclude that assignment. such Appellees do not concede the validity constitutional of these restric- tions on combat, women in but they have position taken the that their validity is purposes irrelevant of this case. join Court, ante, 3 I the see 69, at in rejecting the Solicitor General’s suggestion gender-based that the employed by classification the MSSA should scrutinized under the relationship” "rational test used in review ing challenges types to certain of social and legislation. economic See, g., Wilson, e. Schweiker v. 450 U. 221 (1981); S. U. S. Railroad Retire Fritz, ment (1980). Bd. v. 449 166 U. S. or Caban males females. against discriminates classification Orr, supra, Orr v. (1979); Mohammed, 380, S.U. v. de- Boren, party The supra, at 204.4 278-279; Craig v. at the burden carries challenged classification fending the ob- governmental of the importance the demonstrating both the relationship between the substantial it and jective serves v. Wengler See asserted end. and discriminatory means Moham- Co., Caban v. 151; at supra, Ins. Druggist Mutual Boren, 204. Conse- Craig supra, at 393; med, supra, at v. MSSA, the Government sustain the before we can quently em- it gender-based classification must demonstrate that relationship substantial [the close and ploys bears “a Per- objectives,” governmental important achievement of] Feeney, 442 U. v. Massachusetts sonnel Administrator of C must strength armed adequate “an

The MSSA states that security of insure be achieved and maintained to the ma- I with (b). agree App. §451 Nation.” S. C. U. ante, deny could . . 70, that one . jority, “[n]o is an raising supporting armies interest Government’s ” first Consequently, ‘important governmental interest.’ question But the Boren test is satisfied. part Craig v. itself discriminatory employed means remains whether concluding substantially statutory end. serves the (and does, Congress enacted correctly it the Court notes that reactivated) author- pursuant the MSSA its constitutional notes, majority ity also to raise maintain armies.5 4 Consequently, challenge it is of no moment the constitutional pressed gender classifica this case is men who claim MSSA’s against tion discriminates them. grants power support “To raise and The Constitution Navy,” Armies,” “To Provide and maintain a and “To make Rules for Regulation land and of the naval Forces.” U. S. the Government Const., I, 12-14. Art. cls. §

89 ante, 64, great “the Court weight accords to the deci ” sions of Congress,’ quoting Broadcasting System, Columbia Inc. v. Democratic Committee, National 412 U. S. 102 94, (1973), that the particular accorded has deference arising authority decisions of Congress’ context over military I affairs. have no particular quarrel with these sen timents in majority I opinion. simply add that even in the area of affairs, congressional deference to judg ments be cannot allowed to shade into an abdication of this Court’s ultimate responsibility decide ques constitutional tions. As the pointed Court has out: phrase power’ 'war

“[T]he cannot be invoked as a talis- manic incantation to any support congres- exercise sional power which can brought be within its ambit. power war '[E]ven does remove constitutional ” safeguarding limitations essential liberties.’ United Robel, States v. 389 S.U. 263-264 258, (1967), quoting Bldg. Home & Loan Blaisdell, Assn. v. 426 398, U. S. (1934).

See United States v. L. Grocery Co., Cohen 81, U. S. 88- (1921); Hamilton Kentucky v. Distilleries & Warehouse Co., 251 146, U. S. Ex (1919); parte Milligan, 2, 4 Wall. (1866). 121-127 such “safeguard]

One essential liberties” is the Fifth [of] Amendment’s guarantee of equal protection of the laws.6 here, as When, a federal law that classifies on the basis of gender is challenged ‍​​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​‌​‌​​​‌​‌​​‌‌‌​​​‌​​‌​‌‌‌‍as violating this guaran- constitutional tee, it ultimately Court, is for this not Congress, to decide whether there exists constitutionally required “close and

6Although the Fifth Equal Amendment Clause, contains no Protection this Court held has that “the Fifth Amendment’s Due Process Clause prohibits the Federal Government engaging in discrimination that ” unjustifiable ‘so as to process.’ Schlesinger Ballard, violative of due v. 500, 419 U. (1975), quoting Bolling 3n. Sharpe, v. 347 U. S. relationship” discriminatory substantial between the means employed governmental objective. and the asserted See McCormack, Powell v. 486, 395 S. v. (1969); U. 549 Baker Carr, 186, 369 S. (1962). my judgment, U. there sim- ply is no basis for excluding in this case that concluding women from registration is substantially related concededly important achievement of a governmental inter- in maintaining est an effective defense. The reaches contrary a only by conclusion using degre[e] an “[a]nnounced of 'deference’ to legislative judgmen[t]” as a “facile abstrac- to justify Ante, ... a result.” 69, tion] at 70.

II

A The Government does of women defend exclusion from registration on ground preventing women from in serving the military substantially is related to the effec- tiveness of the Armed Forces. Indeed, experi- the successful ence of women serving in all Armed branches of the Services any would belie such claim. 150,000 Some women volunteers presently on active service the military,7 and their expected number is to increase to 250,000 by over 1985. See Department of Defense Authorization for Appropriations Fiscal Year 1981: Hearings on S. 2294 before the Senate. Services, Committee on Armed Sess., Cong., 96th 1657, 2d (1980) (1980 Senate Hearings); Women in Mili- tary: Hearings before the Military Personnel Subcommittee of the Committee on House Armed 96th Services, Cong., 1st repeal With the in 1967 of a limiting statute the number of female members of the Armed Forces to of total strength, enlisted the number 2% of military women in the steadily has risen both in absolute terms as percentage military total personnel. active percentage has risen 1966, to over expected to rise to 0.78% 5% Dept. 1985. See U. S. Defense, Use Military of Women in the 12% (2d 5-6 1978), reprinted App. ed. at 111-113; Bach, M. Binkin & Military Women and the 13-21 Sess.,

and 2d (1979 1980) 13-23 (Women Military- in the Hearings). At congressional hearings, representatives both the Department Defense and the Armed Services tes- participation tified of women in the All-Volunteer Armed Forces has substantially contributed effec- tiveness. See, g., e. Hearings, (Lt. Senate at 1389 Gen. Yerks), (Principal Deputy Secretary Assistant of De- fense Women in Danzig); Hearings, 13-23 Military (Assistant Secretary of Pirie). Defense Congress has never disagreed with judgment the of the military experts that women have made significant contributions to the effective- military. ness the On the contrary, Congress has re- peatedly praised the performance of female members of the Armed Forces, and has approved efforts by the Armed Serv- expand ices to their role. Just year, last the Senate Armed Services Committee declared:

“Women now volunteer military for service and are assigned to military most specialties. These volunteers now make an important to our contribution Armed Forces. The number of women in the military in- has creased in significantly past years the few and is expected to continue to increase.” Rep. S. p. No. 157 96-826, (1980).

Accord, S. Rep. No. 96-226, p. (1979).8 These statements thus make clear that Congress’ decision to exclude women from registration therefore from a draft drawing on —and pool the of registrants rest on a supposed need to —cannot prevent women from in serving the Armed Forces. The justification gender-based for MSSA’s discrimination must summarizing testimony presented congressional at the hearings, Senator Cohen stated: “[B]asically evidence has come before this that participa- committee tion of in the All-Volunteer Force has well, worked has been praised by every officerwho has testified before the committee, and jobs being performed that the same, with the if cases, some with superior skill.” 1980 Senate Hearings, at 1678. to the peculiar therefore be found considerations that are objectives registration. Congress’

The authoritative discussion of reasons most declining of women is in the require registration contained on Report prepared by the Senate Armed Services Committeе Rep. the Fiscal Year 1981 Defense Authorization Bill. S. 96-826, supra, Report’s findings No. at 156-161. The were endorsed the House-Senate Authoriza- Conferees Rep. tion Bill. No. 96-895, p. (1980). See Conf. Congress subsequently adopted findings Both Houses of by passing Cong. Report. Conference Rec. ante, majority Report’s notes, As the at “findings are in findings Congress.” effect of the entire Report Senate objectives Congress sought out sets accomplish by excluding Rep. women from see S. registration, 96-826, supra, 157-161, No. may appro- and this Court priately look Report to the justification evaluating the discrimination.

B According to Report, policy the Senate precluding “[t]he the use of women in combat is . important . the most reason . for not including registration system.” Rep. women in a S. No. 96-826, supra, at Rep. 96-226, see also No. 157; supra, 9. reaffirming restrictions, the combat the Report declared:

“Registering assignment women for or to combat as- signing women to combat positions peacetime then would performance sexually leave the actual of mixed units an experiment as to be conducted in war with un- known risk'—a risk that the committee militarily finds unwarranted and dangerous. Moreover, committee feels any attempt to assign women to posi- combat tions could affect the national resolve at time mobilization, great a time aspects strain on all of the Nation’s Rep. resources.” S. 96-826, supra, No. at 157. appellees Had raised a challenge constitutional prohibi- to the against tion assignment combat, of women to this discussion Report in the Senate might provide well persuasive reasons ' upholding validity restrictions. But the of the com- bat restrictions is not an issue we need decide in this case.9 Moreover, since the combat restrictions women have al- ready been accomplished through statutes and policies that remain in force whether or not women required are to regis- or ter to be drafted, including registration women in and draft plans will not result their being assigned combat roles. Thus, assuming even precluding use of women in combat is an important governmental in its own right, interest there can be no suggestion that the exclusion women from registration and a is substantially related to the achieve- goal. ment

The Court’s opinion offers a different though related ex- planation of the relationship between the combat restrictions and Congress’ decision not require registration of women. majority states that “Congress . clearly . . linked the need for renewed registration with its views of the character Ante, of a subsequent draft.” at 75. The Court also states “Congress any determined that future draft, which would by facilitated the registration scheme, would be character- troops.” Ante, ized a need for combat at 76. The Court then reasons that since women are not eligible for assignment to combat, Congress’ decision to exclude them is not unconstitutional discrimination inasmuch as “[m]en women, because of the combat women, restrictions on simply not similarly situated for purposes of a draft or regis- Ante, tration for a draft.” at 78. There is a logic certain this reasoning, but the Court’s approach is fundamentally flawed. noted, 2, supra, As see appellees n. elected challenge not to the con

stitutionality of the combat restrictions. apply the Court although purports the first place, “similarly analysis Boren situated” Craig test, v. significantly Craig in different from the employs is fact Feenstra, Compare Kirchberg approach. v. Boren v. id., with (employing Craig test), Boren S.,U. 459-460 v. “simi- concurring result) (employing J., at 463 (Stewart, essentially larly analysis). reasons situated” The Court employed by MSSA is constitu- classification gender not tionally permissible because nondiscrimination is neces- prepare for a sary purpose registration to achieve the troops. majority draft of combat In other con- words, the may registration cludes that women because excluded they will not be needed in the event of a draft.10 however, analysis, wrong question.

This focuses on the inquiry Craig The relevant under the v. Boren test is whеther gender-neutral substantially classification would Rather, important governmental advance interests. question is gender-based whether classification is itself substantially related to the achievement of gov- the asserted Thus, ernmental interest. Government’s task this case is to excluding demonstrate that women from substantially goal preparing furthers the for a draft of troops. put combat way, Or it another the Government must show that registering substantially impede -would its prepare efforts to such a draft. precedents, Under our the Government meet showing cannot this burden without gender-neutral that a statute would be a less effective means of attaining Wengler this end. See Druggists v. Mutual Ins. Co., S., 446 U. at 151. As explained the Court Orr, in Orr v. S.,U. at 283 (emphasis added):

“Legislative classifications which distribute benefits and burdens on the gender basis of carry the inherent risk of thought 10 I would logical have conclusion reasoning from this is there against fact no women, discrimination in which case one why must wonder compelled the Court feels pledge purported fealty its Craig to the Boren v. test. reinforcing sexual stereotypes about the ‘proper place’ of women and their need special protection. . . . Where, here, as . . . purposes are [Government’s] as well by served gender-neutral a classification as gen- one that der classifies and therefore carries with the baggage of it sexual stereotypes, cannot be per- [Government] classify mitted to on the basis of sex.” case, the Government makes no claim that preparing for a of draft combat troops accomplished cannot be just as effectively by registering both men and women drafting but only if only men men turn out to be needed.11 Nor can the Government argue that this alternative entails the additional cost and administrative inconvenience registering women. This Court has repeatedly stated that the con- administrative venience of employing gender a classification is not an ade- quate justification constitutional under Craig v. Boren test. See, g., e. Craig Boren, v. 429 U. atS., 198; Frontiero v. Richardson, 411 U. 690-691 (1973).

The fact that registering women in no way obstructs the governmental in interest preparing for a combat troops points up a second Court’s analysis. flaw Court essentially reduces question the constitutionality of male-only registration validity to the hypothetical program for conscripting only men. The posits a draft in which all conscripts are assigned either specific those posts combat presently closed women or must be available for rotation into such positions. By so doing, the Court is able to conclude that registering women would be no more “gestur[e] than a of superficial equality,” ante, at since necessarily are ineligible for every position to be filled hypothetical its draft. If it could guaranteed indeed be 11Alternatively, Government employ could a classification that is statutory objective related to the but not based gender, example, eligibility. combat Under the current scheme, large subgroups of the population ineligible male who are for combat physical because of handi objector caps or conscientious required status nonetheless register. conscription reimposed in advance that would be only where, which, in circumstances a form under all conscripts assigned would have to be trained for to com- bat or rotation positions combat which women are cate- gorically excluded, argued then it could be that registration pointless. of women would be course, guarantee

But of no such is possible. Certainly, nothing about MSSA Congress reinstituting the limits the only in such example, Congress circumstances. For may decide the All-Volunteer that Armed Forces are inade- quate to meet the Nation’s defense needs even in times of peace peacetime and reinstitute conscription. event, the hypothetical draft the Court relied on sustain the MSSA’s gender-based classification presumably would be of little relevance, and the Court could then be forced to declare male-only the registration program unconstitutional. This difficulty comes about because both the Congress12 and have lost sight important the registra- distinction between tion and conscription. Registration provides inventory “an of what the available strength within is the military quali- pool fied country.” Reinstitution of Procedures for Registration Under Military Selective Service Act: Hear- ing before the on Manpower Subcommittee and Personnel of the Senate Armed Services Committee, 96th 1st Cong., Sess., 10 (1979) (Selective Hearings) Service (statement of Gen. Rogers). Conscription supplies with the person- nel needed respond to particular a exigency. The fact that registration is a first step in the conscription process does not “ quotes The Court equate Senator Warner’s registration comment: T ” draft,’ ante, with the at 75. The whole of Senator Warner’s statement quotation merits explains why because it acknowledge refused to the distinction registration between and the draft. Senator Warner “Frankly equate stated: registration I with the draft because there is no way you registration can establish a coequal law on a basis and then right turn around and nonequal establish a draft law on a basis. I think the court would knock right away.” that down Hearings, 1980 Senate at 1197. discriminating between registration expressly law

mean that conscription pro- may justified men and women a valid retrospect, make current discrimina- gram would, which functionally emerged. appear program tion related reasoning terms, on its own But even the Court’s addressing the entire rests on a analysis argument its is flawed because majority premise demonstrably noted, false. As for a simply prepares assumes that draft which every assignment to combat. draftee must be available finds no in either majority’s support But draft scenario in the testimony Congress, before or more importantly, findings Report. Indeed, appears of the the scenario Senate only imagination, to exist for even the in the Court’s Gov- represents only mobilization, “in ernment the event two-thirds of the induсtion approximately demand system Appellant would be for combat skills.” Brief my (emphasis added). part, For than join rather I in the find- imagining hypothetical prefer to examine drafts, ings Report testimony presented in the and the to Senate Congress.

C Nothing Report supports in the Court’s intima- the Senate registration excluded from because tion that women must be a prerequisite positions combat for all the that eligibility to filled in draft. The Senate would need be the event a only to concluded that mobilization were be Report “[i]f scenario, manpower in a wartime need primary ordered 96-826, replacements.” Rep. be for No. would combat in (1980) (emphasis added). This conclusion was p. testimony presented congressional with the keeping at hearings. Department The of Defense indicated draft, of mobilization requiring event a reinstitution of the primary manpower requirement would be for combat support personnel readily troops deployed who can be (Principal combat. See 1980 Senate Hearings, into at (Lt. Clark), Army Secretary of the Deputy Assistant conscripts indicated Department Yerks). But the Gen. posi- support variety also needed staff would be and which eligibility, of combat no having prerequisite tions Secretary Assistant filled women. therefore could be Logistics) Pirie Affairs, (Manpower, Defense Reserve explained: I arms, and as only combat expand will we need

“Not need also will but we said, pressing need, is the most the same time expand support establishment suc- carry out their function to allow the combat arms uses women cessfully. now support The establishment I think the same would and in wartime very effectively, H. Hearing on R. of Women: Registration true.” be Military Personnel of on before the Subcommittee 2d 96th Services, Cong., the House Committee Armed Hearings). House (1980) (1980 Sess., reasons Department’s Defense testifying about concluding be included that women should plans, Pirie stated: security in an that,

“It is in the interest national service conscription emergency rеquiring for a people qualified of the Nation’s the best youth, in our Armed Forces be available. variety of tasks wide today in our Armed Forces performance of women many of the best supports the conclusion strongly military jobs age 18-26 people for qualified some Id., at 7. category will women.” Army of the (Secretary at 171 Hearings, 1980 Senate See Clay tor).13 The De- Alexander), (Secretary Navy reasoning Department’s explained behind the Defense con Pirie terms: clusion in these military occupations electronics, in women work such as

“Large numbers of jet engine repair, mechanics, drafting, communications, navigation, radar military- no there are concluded that Department also fense excluding registration. women justify reasons that would in these to Department’s position was described The terms: regis- for good are reasons conclusion is that there

"Our strongly even more Our conclusion is tering [women]. register refusing to good there not reasons for Assistant Id., (Principal Deputy 1667-1668 them.” at added). Secretary Danzig) (emphasis of Defense no rea- agreed that there are All four Service Chiefs women, uniformly advocated and refusing register sons for position military’s registration of women. requiring Army then of Staff Gen- by Chief issue was summarized register for Rogers: required should be eral “[W]omen Wilson Corps General the reason that Commandant] [Marine inventory of is an which in order us to have mentioned, military qualified strength within the the available what see country.” Hearings, 10; Service pool in this Selective Operations; id., (Adm. Hayward, Chief of Naval at 10-11 Wilson, Comman- Staff; Air Force Chief of Gen. Allen, Gen. dant, Corps). Marine very ordnance, transportation meteorology effec-

surveying, and and do so by tests. The work tively, been shown numerous DOD studies and as has today is essential to the readiness in the Armed Forces do true, still be war that would capability of the forces. case of beyond inevitably expand doing similar would number of women work 250,000. peacetime our number jobs traditionally majority in fields such the vast have held “Wоmen reg advantage of An and health as care/medical administrative/clerical personnel in these tradi pool of trained is that a for women istration were in the event that sufficient volunteers tionally jobs would exist female include women greater sense to make far It would not available. only males many than thereby gain of these skills draft call drafted require training but would be only these fields who would A advan traditionally further jobs held females. employment jobs for currently holding noncombatant release males tage be to would Hearings, at 6. jobs.” House reassignment combat congressional testimony at the background, Against in needs manpower of projections on focused hearings draft, of the reinstitution requiring emergency an event To a draft. the role of women in such particular, and, a draft testimony examined concrete, the make the discussion the first requirements during personnel with dealing scenario major war to a response of mobilization months six three con- indicated Department The Defense Europe. Armed Serv- number of women the on the maximum straints mobilization: of such a use in the event ices could use of women against prohibitions “(1) legislative to reserve policy military positions, (2) in certain for ground combat assignments, roles, such as certain num- substantial only, (3) need to reserve a men provide for in order to positions noncombat men ber of ground posi- combat ready replacements pool Secretary (Assistant 1980 House at Hearings, tions.” Pirie). allowing constraints, Department the Defense

After these number of female reached the conclusion about the following that could draftees be absorbed: mobilization, projection

“If we had a our best present 80,000 jobs of the is that we could use women in some for. inducting 650,000 people that we would be The rea- jobs, son for that is because some of those indeed 80,000 80,000 jobs support than of those related and more combat related. jobs quite “We think women could fill those well.” Hearings, (Principal Deputy 1980 Senate at 1688 Assist- Secretary Danzig). of Defense ant id., 1661, 1665, See at 1828; Hearings, House 16- Secretary (Assistant Pirie).14 Finally, Defense the De- Department “surveyed The Defense arrived at this number after it military services, many they and asked them how could use partment acknowledged Defense amending the MSSA to registration authorize and induction of women not nec- did essarily mean that women ‍​​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​‌​‌​​​‌​‌​​‌‌‌​​​‌​​‌​‌‌‌‍would be drafted the same num- bers as men. Assistant Pirie Secretary explained:

“If subject women were Department to the draft, the Defense would determine the maximum number of women that be used in Forces, subject could the Armed to existing constraints and the of Military needs Serv- provide ices close fillers replacements combat quickly. We might estimate that require at least 80,000 additional women over If the first six months. were enough there women volunteers, separate draft call for women Id., would be issued.” at 6.

See Senate Hearings, (Principal at 1661 Deputy Assist- Secretary ant of Defense Danzig).

This review of findings contained in the Report Senate and the testimony presented at congressional hearings demonstrates that there is no basis for the represen- Court’s tation that women ineligible all the positions that would need to be filled in the event of a draft. Testimony about personnel requirements in the event of a draft estab- lished that women fill could 80,000 least 650,000 positions for which conscripts would be inducted. with Thus, respect to these or 80,000 more positions, the statutes and policies barring women from combat do not provide a reason for distinguishing between male and female potential con- scripts; groups are, two in the majority’s parlance, “simi- larly situated.” such, As the combat restrictions cannot themselves supply constitutionally required justification for the MSSA’s gender-based classification. Since the classi- precludes fication women from being drafted fill positions they for which would be qualified useful, the Govern- of a 650,000, event [in mobilization and received of] suggest- answers ing they 80,000.” could use about Hearings, Senate at 1665 (Principal Deputy Secretary Assistant Danzig). Defense from those excluding demonstrate must ment of an the achievement substantially related is positions objective. important governmental

Ill the “consistent argues, however, The Government is there to the effect testimony Congress was before Appellant Brief for military need to draft women.” no to a points Government original). And (emphasis the civilian Report that the Senate “[b]oth statement military no need was leadership agreed that military there and in- argument women. . . . necessity, ... not based duction of women 96-826, p. No. Rep. equity.” on considerations of but contention, In the Government’s accepting authority reg- to seek decision that the President’s asserts “Con- concludes that “equity,” on and ister women was based constitu- entitled, in the exercise of its certainly gress was to focus regulate navies, armies and powers tional raise and ” Ante, rather than military ‘equity.’ need question on the con- of the a more careful examination my view, at 80. “military required. need” is cepts “equity” Department’s recommen- the Defense previously noted, As registration plans was based be included in dation that women limited drafting on conclusion that a number its military could contribute effective- with, to, is consistent against background It supra, at 97-102. was ness. See military concluded that favored experts “equity” that Secretary explained: registration of Assistant Pirie women. proven they can success- “Since women have serve fully Forces, equity suggests as volunteers in the Armed they conscription to serve as draftees if be liable Hearings, reinstated.” 1980 House at 7.

By of equity,” experts “considerations acknowl- edged conscripts female perform can as well as male con-

scripts in certain positions, and that there is therefore no reason why one group should be totally excluded reg- istration draft. Thus, what so majority blithely dismisses as “equity” is nothing less than the Fifth Amend- guarantee ment’s of equal protection of the laws which “re- quires that Congress treat similarly situated persons similarly,” ante, at 79. Moreover, whether Congress could subsume this constitutional requirement to “military need,” in part depends on precisely what the Senate Report by meant “military need.”

The Report stated that “[b]oth civilian and military leadership agreed that there was no military need to draft women.” S. Rep. No. 96-826, supra, at 158. An examina- tion of what the “civilian and military leadership” meant “military need” should provide therefore an insight into the Report’s use of the term. Several witnesses testified that because personnel requirements in the event a mobilization could be bymet drafting men, including women in plans is not a military necessity. For example, Assistant Secretary of Defense Pirie stated: “It is doubtful that a female draft can justified

the argument personnel wartime requirements can- not be met without them. pool of draft eligible men ... is sufficiently large to meet projected wartime requirements.” 1980 House Hearings, at 6.

See 1980 Senate Hearings, at 1665 (Principal Deputy Assist- ant Secretary of Defense Danzig). Similarly, Army Chief of Staff General Meyer testified:

“I do not believe there is a need to draft women in peacetime. In wartime, because there are such large numbers of men young available, approximately 2 mil- lion males in each year group of the age draft popula- tion, there would be no military necessity to draft females except, possibly, doctors, and other health pro- people volunteers insufficient there if fessionals Id., 749. at skills.” those with the women “military to need” nois there sure,

beTo participation.15 their without waged be could a war that sense constitutional the resolving to however, irrelevant is, fact This is 94-95, it at supra, see noted, previously As e.16 issu women of prove to burden appellees’ not Rather, the MSSA.17 of objectives the substantially furthers Assistant Deputy Principal Jepsen and Senator colloquy between A of Members some Danzig reveals Secretary Defense sense. in this “military need” understood Danzig. . . . “Mr. many women how them services, asked military surveyed the “We suggesting аnswers received 650,000, among those they use could 80,000. they use could imply to mean use[,] not I do they could say I when me indicate “Let is view Defense Department Our use women. have to they would not were If women scenario. a mobilization be useful would that women used be could Men crumble. would republic think available, I do not instead. ? requirement involved military Jepsen. explicit nois there So “Senator semantic to be mean Danzig. don’t I Senator, and My problem, “Mr. you said If requirement.’ ‘explicit words, use it, is with about eyes brown with require people military example, does me, for cetera, could eyes, et blue people with no, you because tell serve, I would job. do job and do they could deny that hand, I wouldn’t the other “On id., 1665; see Hearings, at 1980 Senate useful.” them find would that we 1853-1856. at to Con much explained as Attorney Simms General Assistant Deputy hearings. He stated: testimony at his gress is irrelevant drafting necessity question of “[T]he justifi- is sufficient there or whether issue, which the constitutional registering women.” may apply for not the courts test by whatever cation Id., 1667. Court’s burden, then all appellees assign we were If into be drawn would protection decisions scrutiny equal “mid-level” prior under approach announcing a new would For question.

because eligibility for combat is not requirement a for some of the positions to be filled in the event of a draft, it is in- cumbent the Government to show that excluding from a draft to fill those positions substantially an furthers important governmental objective.

It may be, however, that the Senate Report’s allusion to “military need” is meant to convey Congress’ expectation that women volunteers will make it unnecessary to any women. The majority apparently accepts this meaning when it states: “Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by Ante, volunteers.” at 81. But since the purpose of registration is to protect against unanticipated shortages of it volunteers, is difficult to see how excluding women from registration can justified be by conjectures about expected number of female volunteers.18 I fail to why see the exclusion of a pool persons who would be conscripted only needed can justified be if reference the current supply of volunteers. In any event, the Defense Department’s best estimate is that in the event of a mobiliza- tion requiring reinstitution of the draft, there will which party challenging gender-based a classification has the burden of showing that elimination of the classification substantially an furthers important governmental interest. 18As Assistant Secretary of Defense explained: Pirie “Perhaps sufficient women volunteers would come forward meet need, perhaps not. Having our young women register in advance would put us in position to call they women if do not volunteer in sufficient quoted numbers,” at 126 Cong. Rec. 13885-13886 See 1980 Hearings, Senate at 1828 (Principal Deputy Secretary Assistant of Defense Danzig). Past wartime recruitment experience does not bear out the Court’s sanguine view. With the advent of the War, Korean an unsuccessful effort was made to 100,000 recruit some women to rapidly meet the ex- panding manpower requirements. See Use of Women in the Military, supra 5, App. n. 111. which positions the fill to volunteers women enough Congress: told Department eligible. be would women projection best present our mobilization, a had “If we jobs the of 80,000 in some women use could we is that Senate for.” people inducting 650,000 be would we Secretary Assistant Deputy (Principal at Hearings, added).19 (emphasis Danzig) Defense of Senate in the statement need” “military the however Thus, constitutionally the provide it does understood, is Report from of women exclusion total the justification required plans. draft registration

IV ar- “military need” beyond go to the need Recognizing that determined “Congress that asserts gument, mobiliza- during a women with positions noncombat staffing of goal important to detrimental positively be would tion deny that would None Ante, 81-82. at flexibility.” governmen- important is an flexibility” “military preserving women exclusion justify But interest. tal abe must there ground, non- number limited even a staffing showing that further military flexibil- impede would women with positions combat basis any provide Report the Senate nothing in find ity. I Secretary of Assistant Hillis Representative colloquy between A number 80,000 clear Hearings makes House Pirie Defense Armed All-Volunteer serving in the the number addition is in Forces. 650,000 indi- need we would estimate Hillis, we Mr. Pirie. “Mr. months. first six over inducted to be viduals women? be many those would How Hillis. “Mr. women, be would individuals these 80,000 of At least Pirie. “Mr. Hillis. Mr. active 250,000 [women had if we even That Hillis. “Mr. » 80,000, which about another talking you 1985], expected service 330,000. about into projects 22. Hearings, at House Yes, sir.” Pirie. “Mr.

for the representation Court’s believed this be the ease.

The Senate Report concluded that “military reasons . . . preclude very large numbers of women from serving.” S. Rep. No. 96-826, p. 158 (1980) (emphasis added). The Report went on to explain: “Military flexibility requires commander able

to move units or ships quickly. Units or ships not located at the front or not previously scheduled the front nevertheless must be able to move into action if necessary. In peace and significant war, rotation per- of sonnel is necessary. We should not divide the military into two groups in permanent combat and —one one in permanent support. Large numbers posi- non-combat tions must be available which combat'troops can re- turn for duty before being redeployed.” Ibid. This discussion confirms Report’s conclusion that draft- ing “very large numbers of women” would hinder military flexibility. The discussion does not, however, address the different question whether only drafting a limited number of women would similarly impede military flexibility. The tes- timony on this issue at the congressional hearings was that drafting a limited number of women is quite compatible with the military’s need for flexibility. In concluding that Armed Services could usefully employ at least 80,000 women conscripts out of a total of 650,000 draftees would needed the event of major a European war, the Defense Department took into account both thе need for rotation of personnel combat and the possibility that some support per- sonnel might have to be sent into combat. As Assistant Secretary Pirie testified:

“If women were subject to the draft, Department of Defense would determine the maximum number of women that could be used in the Armed Forces, subject to existing constraints and the needs the Military replacements combat close provide Services fillers least at require might estimate We quickly. months.” first 6 over women additional 80,000 added). (emphasis Hearings, House Sec- Assistant Deputy Principal 278 (deposition App. See Danzig).20 Defense retary of of a limited why induction reason no is there

Similarly, mili- divide any more should draftees of female number support” “permanent combat” “permanent tary into All-Volunteer with the case presently groups than prevent would restrictions combat Forces. Armed rotation combat or combat serving a draftee female volunteers 150,000-250,000 apply also position but increasing presence If the Services. the Armed unaccept- has volunteers female numbers of controlled is difficult it groups,” two military into ably “divide[d] additional, similarly limited aof the induction how to see In these result. accomplish this could of women number attempt Court’s with agree I circumstances, cannot very drafting conclusion Report’s Senate “interpret” as military flexibility, impair would of women large numbers conclusion entirely different Congress reached proof adversely would of women number drafting a limited flexibility. affect “impact on about Chiefs questioned Service Warner Senator total based on a be would draft, which consequence of a as a

your service Hear Selective Service male and equality between provision female.” Senator answered Chiefs added). the Service Two of (emphasis at IS ings, men and equal numbers aof effect question about the Warner's quotation. merit answers Their women. any effect unfavorable not have It would Force]. Allen [Air “General Ibid. a draft.” objection such have no would Force. We Air Corps].... [Marine “General WilsoN upis That drafted. happy have perfectly would .“. . [W]e Corps.” Marine in the can handle we I believe which percent goal the 5 Ibid.

Y The Senate Report itself recognized that the “military- flexibility” objective speaks only to the question whether “very large numbers” of women should be drafted. For the Report went on to state:

“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 un- satisfactory solution.” S. Rep. No. 96-826, p. 158 (1980). The Report found the proposal “confused” and “unsatisfac- tory” for two reasons. “First, the President’s proposal require [to

of women] does not include any change in section 5 (a) (1) of the [MSSA], which requires that the draft be conducted impartially among those eligible. Adminis- tration witnesses admitted that the current language of the law probably precludes induction of women and men on any but a random basis, which should produce roughly equal numbers of men and women. Second, it is con- ceivable that the courts, faced with a congressional deci- sion to register men and women equally because of equity considerations, will find justification insufficient for then inducting only a token number of women into the Serv- ices in an emergency.” Id., at 158-159 (emphasis in original).

The Report thus assumed if women are registered, any subsequent draft require would simultaneous induction of equal numbers of male and female conscripts. Report concluded that such a draft would be unacceptable:

“It would create monumental strains on the training system, would clog the personnel administration and sup- port systems needlessly, and would impede our defense preparations at a time of great national heed.

“Other problems administrative such as housing and hardship dependency, regard with treatment different 159.21 Id., at exist.” also would standards physical and these on Relying 9p. 96-226, No. Rep. S. also See a that “assuming even that asserts majority statements, the rolеs, noncombat for be drafted could women of number small burdens added the worth it consider did not simply Ante, plans.” registration and in including women of Report Senate fact, the conclusion the In actual 81. at seeks one different significantly reached to it. attribute that “[i]f was Report Senate by the finding specific The numbers equal in drafted be women required law because severely impaired be would men, mobilization with systems.” administrative and facilities training on strains of There added). (emphasis at supra, 96-826, Rep. No. S. hearings that congressional at the however, suggestion no was, female and males numbers equal induction simultaneous Defense The desirable. necessary or either conscripts was regis- in be included women recommended Department draftees female the number with plans, and draft tration by the to be determined induction their timing of and the 100-101.22 supra, at See requirements. military’s personnel indication no gave Department plan, endorsing training ad- any strains place would a draft such Selec- Director Moreover, facilities. ministrative induction registration testified System tive Service explained: Report further women, equal of men to mandate Congress were “If the the combat which situation in with a faced might well be we therefore, have 100,000 men —would days say first 60 needed replacements — hypothetical, with this Faced 100,000 women. accompanied be intolerable.” be would a situation such stated witnesses 96-826, 159. Rep" No. pro Plans Service Report, “Selective the Senate As stated only a small days, and first during the only men drafting vide[d] first 180 drafted the total included would number of Id., at 158. days.” process including both males and females would present no administrative problems. See 1980 Senate Hearings, at 1679 (Bernard Rostker); App. 247-248 (deposition of Bernard Rostker).

The Senate Report simply failed to consider the possibility that a limited number of women could be drafted because of its conclusion that 5§ (a)(1) of the MSSA does not author- ize drafting different numbers of men and women and its speculation on judicial rеaction to a decision to register women. But since Congress was free amend §5 (a)(1), and indeed would have to undertake legislation new to au- thorize any draft, the matter cannot end there. Further- more, the Senate Report’s speculation that a statute author- izing differential induction of male and female draftees would be vulnerable to constitutional challenge is unfounded. The unchallenged restrictions on the assignment of women to com- bat, the need to preserve military flexibility, and the other factors discussed in the Senate Report provide more than am- ple grounds for concluding that the discriminatory means employed by such a statute would be substantially related to achievement important governmental objectives. Since Congress could have amended 5 (a)(1) § to authorize differential induction of men and women based on the mili- personnel tary’s requirements, the Senate Report’s discussion about “added burdens” that would result from equal drafting numbers of male and female draftees provides no basis for concluding that the total exclusion of women from registra- tion and plans is substantially related to the achieve- ment important governmental objectives. sum, neither the Senate Report itself nor the testimony

presented at the congressional hearings provides any support for the conclusion the Court seeks to attribute to the Report— that drafting a limited number of women, ‍​​​​‌​‌‌​‌‌‌‌​​​‌‌​​​‌​‌​‌​​​‌​‌​​‌‌‌​​​‌​​‌​‌‌‌‍with the number and the timing their induction and training determined the military’s personnel requirements, would burden training and administrative facilities.

VI in findings contained discussion reviewing the After Report say the to of I am able most the Report, the Senate of numbers large very drafting it demonstrates is that im number of aof achievement the frustrate women would ultimate to the that relate objectives portant governmental to in ... strength armed maintaining adequate “an of goal (b). App. § S. C. Nation," this U. security of sure Report establishes Senate way, the another put to it Or num a limited only but number of men of a large induction rе personnel by military’s determined women, of as ber gov important substantially related be would quirements, findings in discussion But the interests. ernmental carry its the Government not enable Report do Senate excluding demonstrating completely burden of registration substan excluding them from by from the draft objectives. important governmental tially furthers burden has carried its concluding that Government deferential appropriately “an adopts Court case, ante, evidence,” Congress’ of of evaluation [thel examination majority proceeds then original). (emphasis at findings with those the Court Congress’ actual supplement (and should) have made. apparently Congress believes could hollow shibboleths about Beyond substitutes that, Court analysis. legislative decisions” constitutional “deference is the sight lost of the fact that “it majority if the has It is as interpreter to act as the ultimate this Court responsibility McCormack, S., Powell v. 395 U. Constitution.” S., Carr, Congressional at 211. 549. See Baker v. U. other must, affairs like all the area of enactments For laws, judged the standards the Constitution. land, legis- supreme law the and all the Constitution is lays As the principles conform to the down. must it lation in- out, phrase power’ “the 'war cannot be pointed has support any incantation to exercise of as a talismanic voked congressional power which can be brought within its ambit.” United Robel, States v. 389 U. S., at 263-264. Furthermore, it “[w]hen appears that an ofAct conflicts with [a constitutional] provisio[n], we have no choice but to enforce the paramount commands of the Con- stitution. We are sworn to do no less. We push cannot back the limits of the Constitution merely to accommodate chal- lenged legislation.” Trop Dulles, v. 356 U. S. 86, 104 (1958) (plurality opinion). In some 106 instances since this Court was established it has determined congressional action exceeded the bounds of the I Constitution. believe the same is true of this statute. In an attempt to avoid its constitu- tional obligation, the Court today “pushes back limits of the Constitution” to accommodate an Act of Congress.

I would affirm the judgment of the District Court.

Case Details

Case Name: Rostker v. Goldberg

Court Name: Supreme Court of the United States

Date Published: Jun 25, 1981

Citation: 453 U.S. 57

Docket Number: 80-251

Court Abbreviation: SCOTUS