Petitioner
Dr. Bernard Rostker, Director of the Selective Service System
Respondent
Robert L. Goldberg
Petitioner's Claim
That the exemption of women from the registration requirements of the Selective Service System did not violate the Constitution by discriminating betweenmen and women.
Chief Lawyer for Petitioner
Wade H. McCree, U.S. Solicitor General
Chief Lawyer for Respondent
Donald L. Weinberg
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist (writing for the Court), John Paul Stevens
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, Byron R. White
Place
Washington, D.C.
Date of Decision
25 June 1981
Decision
That the Selective Service System exemption for women does not violate the Constitution.
Significance
The Court's decision reinforced Congress' broad powers to pass laws with respect to raising and maintaining the armed forces of the United States, and validated the male-only draft. The decision has had only limited impact, however, on the Court's resolution of gender discrimination issues outside the military context.
During the height of the Vietnam War, one of the most divisive issues was thedrafting of males to serve as soldiers in the nation's armed forces under the Military Selective Service Act, originally enacted in 1948. Since the passage of the act, only males were subject to the draft, although there were a number of proposals in the late 1960s to include women. A number of influentialpeople thought that the draft should include women, including the feminist Margaret Meade and numerous government officials. In 1971, Robert L. Goldbergand several other men brought a suit in the U.S. District Court in Pennsylvania challenging the constitutionality of the male only draft. The suit, whichwas brought on behalf of all men required to register under the Selective Service Act, argued that the Selective Service Act violated the Fifth Amendmentto the Constitution by denying men the equal protection of the laws by treating them differently from women solely on the basis of their gender. However,because the registration requirements were discontinued by President Gerald Ford in 1975, the case remained inactive.
President Carter Reactivates the Selective Service System
In 1979 President Jimmy Carter issued a proclamation to reactivate the registration requirement. President Carter felt that this step was a necessary response to the Soviet Union's invasion of Afghanistan. Although there were numerous proposals in Congress to have the registration requirements include bothmales and females, Congress refused to amend the Selective Service Act. Thus,beginning on 21 July 1980 all males were once again required to register with the Selective Service System. With this reinstation of the Selective Service Act, Goldberg's original lawsuit challenging the male-only registration requirement was reactivated. Just days before the registration requirement was to go into effect, the district court issued its decision that the male-only registration requirement was unconstitutional because it discriminated againstmen on the basis of their gender. The government, through Director of the Selective Service System Bernard Rostker, appealed the decision to the U.S. Supreme Court.
In a 6-3 decision, the Court reversed the district court's decision and concluded that the male-only registration requirements of the Selective Service Act did not violate the constitution. The court first noted that Congress has broad powers to pass laws relating to military affairs, and that courts are not qualified to make military decisions. Thus, courts should not lightly disregard the judgment of Congress in this area. More importantly, the Court notedthat the purpose of the registration requirement is to be able to draft combat troops in time of war. Because women were, at the time, excluded from combat positions, Congress did not act unreasonably in concluding that registering women for the draft would serve no purpose:
Justices Brennan, Marshall, and White disagreed with the Court's decision anddissented. Justice Marshall was particularly critical, accusing the Court ofadopting a traditional view of the "proper role" of women and of "categorically exclud[ing] women from a fundamental civic obligation."
Validity of Rostker Questioned
In the early 1990s, the restriction on women from serving in combat roles inthe military was ended. The Rostker decision relied heavily on the facts that women were excluded from combat and that the purpose of the registration requirement was to identify combat troops for time of war. Because womenmay now serve in combat roles, many have questioned whether the Rostker decision is still valid. However, regardless of whether the decision is still valid, it has been of little significance in the Court's resolution of other gender discrimination issues. The case has been considered a case relatingto Congress' power to raise and maintain the nation's armed forces. Its reasoning and decision has not been extended by the Court to other gender-discrimination issues outside of military affairs.
Related Cases
Women and the Selective Service Exemption
In 1995, House Speaker Newt Gingrich caused controversy when he discussed theidea of women in combat from a politically incorrect standpoint--that is, hedid not believe women had any business going to war. At around the same time, Shannon Faulkner was making headlines as she attempted to become the firstfemale cadet at South Carolina's all-male military academy, The Citadel. Though she waged a long legal battle, Faulkner, weakened by stress, proved physically incapable of keeping up with her classmates, and within the first week of the school, she had to drop out.
Later, however, other more physically fit young women successfully endured the tough conditions at The Citadel. Women have proven capable of serving in the military, and in positions such as military intelligence or the medical fields, they have served with distinction at the front lines. But the idea of women fighting wars as infantrymen in foxholes remains difficult for most of society to accept--mostly because certain segments of society find it hard to imagine that very many women would want to do so.
Dr. Bernard Rostker, Director of the Selective Service System
Respondent
Robert L. Goldberg
Petitioner's Claim
That the exemption of women from the registration requirements of the Selective Service System did not violate the Constitution by discriminating betweenmen and women.
Chief Lawyer for Petitioner
Wade H. McCree, U.S. Solicitor General
Chief Lawyer for Respondent
Donald L. Weinberg
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Sandra Day O'Connor, Lewis F. Powell, Jr., William H. Rehnquist (writing for the Court), John Paul Stevens
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, Byron R. White
Place
Washington, D.C.
Date of Decision
25 June 1981
Decision
That the Selective Service System exemption for women does not violate the Constitution.
Significance
The Court's decision reinforced Congress' broad powers to pass laws with respect to raising and maintaining the armed forces of the United States, and validated the male-only draft. The decision has had only limited impact, however, on the Court's resolution of gender discrimination issues outside the military context.
During the height of the Vietnam War, one of the most divisive issues was thedrafting of males to serve as soldiers in the nation's armed forces under the Military Selective Service Act, originally enacted in 1948. Since the passage of the act, only males were subject to the draft, although there were a number of proposals in the late 1960s to include women. A number of influentialpeople thought that the draft should include women, including the feminist Margaret Meade and numerous government officials. In 1971, Robert L. Goldbergand several other men brought a suit in the U.S. District Court in Pennsylvania challenging the constitutionality of the male only draft. The suit, whichwas brought on behalf of all men required to register under the Selective Service Act, argued that the Selective Service Act violated the Fifth Amendmentto the Constitution by denying men the equal protection of the laws by treating them differently from women solely on the basis of their gender. However,because the registration requirements were discontinued by President Gerald Ford in 1975, the case remained inactive.
President Carter Reactivates the Selective Service System
In 1979 President Jimmy Carter issued a proclamation to reactivate the registration requirement. President Carter felt that this step was a necessary response to the Soviet Union's invasion of Afghanistan. Although there were numerous proposals in Congress to have the registration requirements include bothmales and females, Congress refused to amend the Selective Service Act. Thus,beginning on 21 July 1980 all males were once again required to register with the Selective Service System. With this reinstation of the Selective Service Act, Goldberg's original lawsuit challenging the male-only registration requirement was reactivated. Just days before the registration requirement was to go into effect, the district court issued its decision that the male-only registration requirement was unconstitutional because it discriminated againstmen on the basis of their gender. The government, through Director of the Selective Service System Bernard Rostker, appealed the decision to the U.S. Supreme Court.
In a 6-3 decision, the Court reversed the district court's decision and concluded that the male-only registration requirements of the Selective Service Act did not violate the constitution. The court first noted that Congress has broad powers to pass laws relating to military affairs, and that courts are not qualified to make military decisions. Thus, courts should not lightly disregard the judgment of Congress in this area. More importantly, the Court notedthat the purpose of the registration requirement is to be able to draft combat troops in time of war. Because women were, at the time, excluded from combat positions, Congress did not act unreasonably in concluding that registering women for the draft would serve no purpose:
The exemption of women from registration is not only sufficiently but also closely related to Congress' purpose in authorizing registration . . . 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.
Justices Brennan, Marshall, and White disagreed with the Court's decision anddissented. Justice Marshall was particularly critical, accusing the Court ofadopting a traditional view of the "proper role" of women and of "categorically exclud[ing] women from a fundamental civic obligation."
Validity of Rostker Questioned
In the early 1990s, the restriction on women from serving in combat roles inthe military was ended. The Rostker decision relied heavily on the facts that women were excluded from combat and that the purpose of the registration requirement was to identify combat troops for time of war. Because womenmay now serve in combat roles, many have questioned whether the Rostker decision is still valid. However, regardless of whether the decision is still valid, it has been of little significance in the Court's resolution of other gender discrimination issues. The case has been considered a case relatingto Congress' power to raise and maintain the nation's armed forces. Its reasoning and decision has not been extended by the Court to other gender-discrimination issues outside of military affairs.
Related Cases
- Reed v. Reed, 404 U.S. 71 (1971).
- Columbia Broadcasting System v. Democratic National Committee, 412U.S. 94 (1973).
- Greer v. Spock, 424 U.S. 828 (1976).
- Craig v. Boren, 429 U.S. 190 (1976).
Women and the Selective Service Exemption
In 1995, House Speaker Newt Gingrich caused controversy when he discussed theidea of women in combat from a politically incorrect standpoint--that is, hedid not believe women had any business going to war. At around the same time, Shannon Faulkner was making headlines as she attempted to become the firstfemale cadet at South Carolina's all-male military academy, The Citadel. Though she waged a long legal battle, Faulkner, weakened by stress, proved physically incapable of keeping up with her classmates, and within the first week of the school, she had to drop out.
Later, however, other more physically fit young women successfully endured the tough conditions at The Citadel. Women have proven capable of serving in the military, and in positions such as military intelligence or the medical fields, they have served with distinction at the front lines. But the idea of women fighting wars as infantrymen in foxholes remains difficult for most of society to accept--mostly because certain segments of society find it hard to imagine that very many women would want to do so.
User Comments Add a comment…
3 months ago
Women should be put in those combat situation it violates our codes of honor and valor to put them in that position to be in danger is cowardly. If we were to have a draft again have may fathers and mothers would like to see the young daughters go off in combat and never return? The front lines is no place for women.
11 months ago
I find the last line of the above article 'certain segments of society find it hard to imagine that very many women would want to do so' appalling. These Selective Service Laws DO NOT ASK anyone if they would LIKE TO or ENJOY serving involuntarily in direct ground combat. They ORDER, under punishment by imprisonment, OF ONLY MALES to serve in direct ground combat. Females stay at home and enjoy affirmative placement in jobs ahead of males which require speed and strength similar to those of direct ground combat by 'gender-norming' physical requirements of those jobs. Why not 'gender-norm' the physical requirements for involuntary, affirmative placement in direct ground combat of females ahead of males, thus giving females equal representation in combat operations??