''Rostker v. Goldberg'', 453 U.S. 57 (1981), is a decision of the
Supreme Court of the United States holding that the practice of requiring only men to register for the
draft
Draft, The Draft, or Draught may refer to:
Watercraft dimensions
* Draft (hull), the distance from waterline to keel of a vessel
* Draft (sail), degree of curvature in a sail
* Air draft, distance from waterline to the highest point on a vesse ...
was
constitutional
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these prin ...
. After extensive hearings, floor debate and committee sessions on the matter, the
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
reauthorized the law, as it had previously been, to apply to men only. Several attorneys, including Robert L. Goldberg, subsequently challenged the Act as gender distinction. In a 6–3 decision, the Supreme Court upheld the Act, holding that its gender distinction was not a violation of the
equal protection component of the
Due Process Clause of the
Fifth Amendment.
[''Rostker'', 453 U.S. 57 (1981), slip opinion.]
Background
The
Military Selective Service Act of 1948 (Act), revised in 1967, authorizes the
president
President most commonly refers to:
*President (corporate title)
* President (education), a leader of a college or university
* President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ...
to require the registration for possible military service of males, but not females.
While the Act was amended in 1973 to prohibit conscription, the purpose of registration is to facilitate conscription under the Act when deemed necessary by the president and Congress.
Registration for the draft was discontinued by
presidential proclamation
A presidential proclamation is a statement issued by a US president on an issue of public policy and is a type of presidential directive.
Details
A presidential proclamation is an instrument that:
*states a condition,
*declares a law and require ...
in 1975. In 1980, President
Jimmy Carter
James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party, he previously served as the 76th governor of Georgia from 1 ...
re-established registration under the
Selective Service System following the
Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
's
invasion of Afghanistan. Carter asked Congress to provide funding for registration and to amend the Act so that registration would be extended to include women. The question of registering women for the Selective Service System received not only considerable national attention, including wide-ranging public debate, but was also extensively debated by Congress in hearings, floor debate, and in committee. Following debate, the House on April 22, and the Senate on June 12, passed a joint resolution to resume the registration process. However, Congress did not approve the full funding requested by Carter and did not amend the Act to require the registration of women. Registration of men began on July 21, 1980.
District Court
In 1971 an anti-war group, the Philadelphia Resistance, gathered a group of young male high school students, including Andrew Rowland, his brother, David Sitman and David Fruedman to protest the draft. In ''Rowland v. Tarr'' (1971) the
heard a challenge to the MSSA on several grounds, one of which was gender discrimination. In 1974, they were not granted a 3-judge court opinion because the draft was now discontinued. This group of men petitioned again in 1974 in ''Goldberg v. Tarr''. Robert Goldberg was a medical student at Penn State who registered and claimed to be a conscientious objector. In July 1980, just a few days before registration was to commence again, the district court offered an opinion claiming that the MSSA violated the Due Process Clause of the Fifth Amendment.
The director of the Selective Service System, Bernard Rostker, filed an appeal and Justice
William J. Brennan Jr., Circuit Justice for the
Third Circuit
The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts:
* District of Delaware
* District of New Jersey
* Easte ...
, stayed the district court's decision and registration began as scheduled. The Supreme Court subsequently granted ''
certiorari''.
Arguments
The Army and Marine Corps precluded the use of women in combat as a matter of established policy, and both the Navy and the Air Force restricted women's participation in combat. Even President Carter, who had originally suggested that women be included, expressed his intent to continue the current military policy excluding women from combat. Since the purpose of registration was to prepare for a draft of combat troops, and since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided funds should not be used to register them. As one Senator said, “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 unsatisfactory solution." As the Senate Committee recognized a year before, "training would be needlessly burdened by women recruits who could not be used in combat." All in all, the proponents of the current MSSA advocated not using government funds to register people who were excluded from the job anyway. The main point of those who favored the registration of females was that females were in favor of it because of gender equality principles; women, as full citizens, ought to have the same civic duties and responsibilities as men.
Opinion of the Court
In the majority opinion, Justice William Rehnquist wrote "
e existence of the wartime 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."
Implicit in the
obiter dicta
''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbitr ...
of the ruling was to hold valid the statutory restrictions on gender discrimination in assigning combat roles. Both 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 therefore, there is no violation of the Due Process Clause. The Supreme Court therefore reversed the decision of the district court.
Dissenting opinion
Justices White, Marshall, and Brennan dissented. Justice White did not think that excluding women “offended the Constitution” but rather that Congress did not “conclude that every position in the military, no matter how far removed from combat, must be filled with combat ready men.”
Marshall dissented on the principle of equal civic obligation.
Later developments
In 2013, the U.S. military began removing restrictions on women in certain combat situations, and by 2015, had eliminated all restrictions barring women from combat. A new suit, brought by the
National Coalition for Men, charged that with the removal of service restrictions, the Selective Service System's men-only requirement failed the
Equal Protection clause. Judge
Gray H. Miller of the
ruled in ''National Coalition for Men v. Selective Service System'' in February 2019 in favor of the plaintiffs, that the Service's men-only requirement was unconstitutional, though issued no order or injunction. Judge Miller wrote that while at the time ''Rostker'' was decided, women were banned from serving in combat, the situation has since changed with the 2013 and 2015 restriction removals. Miller's opinion was reversed by the
Fifth Circuit, stating that only the Supreme Court could overturn the Supreme Court precedence from ''Rostker''. The Supreme Court considered but declined to review the Fifth Circuit's ruling in June 2021. In an opinion authored by Justice
Sonia Sotomayor
Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
and joined by Justices
Stephen Breyer and
Brett Kavanaugh
Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since ...
, the three justices agreed that the male-only draft was likely unconstitutional given the changes in the military's stance on the roles, but because Congress had been reviewing and evaluating legislation to eliminate its male-only draft requirement via the National Commission on Military, National, and Public Service (NCMNPS) since 2016, it would have been inappropriate for the Court to act at that time.
See also
* ''
United States v. Virginia
''United States v. Virginia'', 518 U.S. 515 (1996), is a landmark case in which the Supreme Court of the United States struck down the long-standing male-only admission policy of the Virginia Military Institute (VMI) in a 7–1 decision. Justice ...
'' (1996)
*
Women in the military
Women have served in the military in many different roles in various jurisdictions throughout history. Women in many countries are no longer excluded from some types of combat missions such as piloting, mechanics, and infantry officer. Since 1 ...
*
Conscription in the United States#Legality
References
Further reading
*
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External links
*
{{portalbar, 1980s, United States
United States Supreme Court cases
United States Supreme Court cases of the Burger Court
United States equal protection case law
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1981 in United States case law
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June 1981 events in the United States