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Selective Service Discrimination

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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16 Responses

  1. Shag from Brookline says:

    I don’t know if it would be clearly unconstitutional, but who would have standing to challenge it? I was drafted in 1955 after deferments for college and law school, serving two years as a post-Korea pre-Vietnam “veteran.” Perhaps there wouldn’t have been a need for a draft if enough women were volunteering back then and were eligible for combat. Would males subject to a new draft have standing to challenge a draft that did not include women? Would women?

    So perhaps the question is not that simple. Israel seems to subject women to military service but provides extensive exemptions for religious persons. As a father of four, three sons and a daughter, I would personally have had more difficulty with my daughter being subject to the draft than my sons.

    Of course, the question may be moot as any draft proposal would be subjected to public objections following so many years of an all volunteer military.

  2. Joe says:

    Rostker v. Goldberg (1981) upheld a sex specific policy by a 6-3 vote and White dissented even assuming the combat exclusion was allowable. It would be even more controversial today, especially since sex discrimination rules if anything got stricter, putting aside this rule change etc.

    As to standing, a man was the person challenging it then. Some argue that equal citizenship requires protecting equal responsibilities so I wonder if that alone would give a woman standing. Also, does registration have any benefits?

  3. Joey Fishkin says:

    There will never be another draft. The proper plaintiff to challenge this largely symbolic but obviously discriminatory selective service system is a man who refused to register and then is denied some state benefit as a result. (The law conditions a lot of benefits on selective service registration for men, e.g. eligibility for government employment; he can argue that he would have been eligible if not for his sex.) Plaintiffs for a suit like this are going to be pretty rare — refusing to register for selective service is not exactly a common form of protest today. But I’m sure some such plaintiff exists. The question is which comes first: such a lawsuit, or Congress getting around to either extending the selective service system to everyone or, better, eliminating it, as it serves no purpose.

  4. Jack says:

    @ Joe: Selective Service registration had a significant benefit: back in the day, it was an excellent source of fake ID. In a time (the 1970s) when even DL’s did not all have photos, once laminated, one’s Selective Service registration receipt had the ring of authenticity. I hear.

    Male-only registration is clearly unconstitutional now.

  5. Brett Bellmore says:

    I think there’s only one thing missing from this: Both men and women should meet the same physical requirements. It’s a lot harder to argue women aren’t carrying their share of the load if they’re physically capable of carrying their share of the load.

    And the arguments for non-discrimination demands that you not discriminate.

  6. Shag from Brookline says:

    Taking Brett out of context [so what else is new?] on his:

    “Both men and women should meet the same physical requirements.”

    recalls from my four (4) years of studying French back in the 1940s:

    “VIVE LA DIFFERENCE!”

    [No, I am not anti-Don’t Ask, Don’t Tell.}

    Some ex-Marines talk about the infantry requirement of picking up over one’s shoulder and carrying an injured fellow Marine weighing 225 pounds 100 yards. While many women might have difficulty doing this, so would many men, who might find it easier accomplishing this with an injured female Marine weighing 120 pounds. Of course, the infantry has changed over the years, about which I could drone on and on.

  7. Ken Rhodes says:

    In re Shag’s comments:

    (a) I assume his reference to DADT in this context relates to gender, rather than sexual preference. In which case DADT might be appropriate for induction, but perhaps not for assignment to quarters.

    (b) Back in the day, they may have been drafting into the USMC, but irrespective of whether the draft is instituted for some reason, it is inconceivable to me they’d ever again draft Marines.

    (c) The draft, even into combat units, is NOT equivalent to the infantry. There are artillery, communications, etc.

    (d) Most important, though, is the fact that much of the military in a war zone is not forward combat units, because there is a large support component. Supply, maintenance, medical, administration–women have been filling those roles in war zones for many years. Why have they not been required to register for the draft all along?

  8. Brett Bellmore says:

    “While many women might have difficulty doing this, so would many men,”

    Which is why said many men wouldn’t qualify for infantry. Point being a woman with physical capablities equivalent to those which would get a man kicked out shouldn’t be on the front line.

    Some jobs actually have objective requirements. You don’t want discrimination, don’t discriminate.

  9. Shag from Brookline says:

    Let’s make sure all those in the military are not obese. Yes, all this is a weighty problem. And I take Ken’s points in #8, especially (c) and (d).

  10. Joe says:

    A retired officer was on Lawrence O’Donnell’s show last night making Brett’s point: some men would not meet the test. But, as she said, used to be that the government didn’t worry about that much — take all the men you can, find some use for them. The need to be “qualified” repeatedly is post hoc.

    Thanks Jack. Not quite sure that benefit is what I had in mind.

  11. theprez98 says:

    In 1981, the Supreme Court said no in the case of Rostker v. Goldberg, 453 U.S. 57 (1981). Here are a few excerpts from then-Justice Rehnquist’s majority opinion:

    …In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them…

    …The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them…

    …Congress’ decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress’ purpose in authorizing registration…

    Now that combat restrictions will essentially be lifted, this appears to remove the rationale for distinguishing between men and women, in terms of the Selective Service Act. As a result, I suspect this may call in question the central holding of Rostker v. Goldberg.

    Perhaps the Selective Service Act now violates the due process clause of the 5th Amendment.

  12. Russell says:

    I think that if a selective service is going to exist, everyone needs to have some skin in the game but that we should be sensitive to the various personalities and skills of service members. There should be a selective service for both front-line duty and medical/nurse duty, allowing both men and women choose their course of duty. There are women that are more suited to combat than some men and vice versa. The registration should be total and give registrants the freedom to serve where they would like and be most suited. There should be no relaxing of requirements, and if given the choice of service, there should be less need to.

  13. Robyn in Dallas says:

    As the first woman posting in this thread, I must preface that I can’t speak for all women. Women should absolutely be subject to Selective Service registration. The absence of female voices so far only highlights the disinterest in any subject of those whom it does not affect. And yet the perception that we are unaffected is false. We are all citizens. We must all participate. I do not know whether or not the future holds another draft, but were it to then women’s lives must be put in equal danger. Without that stake, we are too free with how we use our military. I had not noticed the disinterest of women until I joined our all volunteer service (Navy) in the 90s. Why would I? It didn’t affect me.

    If men are opposed to it out of fear for their daughters, that fear should not stop equal application: it should make us all be circumspect in our military entanglements. Our dear ally Israel has a great system which we could implement here. (I am also in favor of mandatory service for all youth between the ages of 18 and 20.)

  14. Ben Calvin says:

    “There will never be a draft” BS Never say never. All persons should be sujected to the same selective service registration requiremnents. I am curious as to how many women will be lining up for the ecombat arms. Ground pounders, grunts, tankers, cannon cockers. All involve physical work with heavy stuff. Can you keep up? I fthere are less stringent requirements for women for task based strength and endurance, then this women in combat will be a failure.

  15. Jeffrey Wright says:

    “The proper plaintiff to challenge this largely symbolic but obviously discriminatory selective service system is a man who refused to register and then is denied some state benefit as a result.”

    I refused to register for the selective service and have since been unable to secure federal grants or loans to continue my education. Ironically, I completed a masters degree using the FLAS federal fellowship. But now I find myself accepted to a doctoral program and unable to enroll because of lack of financial wherewithal. I am now 42.