Well, let me clarify: male-only draft registration has been unconstitutional since the adoption of the Nineteenth Amendment. But now, due to a change in military policy announced last week by Secretary of Defense Leon Panetta, it is unconstitutional even under the flawed logic that the Supreme Court used to uphold it in 1981. The fact that women will now be allowed to serve in combat roles in the armed forces undermines the argument in favor of a male-only draft (and hence male-only draft registration.)
In Rostker v. Goldbert, 453 U.S. 57, the Court upheld sex-discriminatory registration requirements with the following language:
Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that, "[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S.Rep. No. 96-826, p. 160 (1980); see id. at 158. ... Congress' determination that the need would be for combat troops if a draft took place was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt. Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17 (Assistant Secretary of Defense for Manpower Pirie). See also Hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers). The purpose of registration, therefore, was to prepare for a draft of combat troops.
Women as a group, however, unlike men as a group, are not eligible for combat. ...
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. ...
The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.
Congress' decision to authorize the registration of only men, [p79] 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. See Michael M., 450 U.S. at 450 U.S. 472"]472-473 (plurality opinion); 472-473 (plurality opinion); Craig v. Boren, 429 U.S. 190"]429 U.S. 190 (1976); 429 U.S. 190 (1976); Reed v. Reed, 404 U.S. 71 (1971). The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops.(Boldface emphasis added).
This line of reasoning was flawed when it was written. But now that women are, in fact, allowed in combat roles, the key premise of the argument is no longer true.
It's time for the President and the Secretary of Defense to repudiate the unconstitutional male-only selective service registration requirement. How they move forward is, of course, a different question. I believe the draft itself is a violation of the Thirteenth Amendment, and so the correct course of action is to eliminate draft registration entirely. But I understand that many people do not share that view, and so might instead prefer an equitable male- and female-registration requirement. The important point is that the status quo can no longer stand, even as a matter of flawed precedent.
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