Selective Service v. Minnesota Public Interest Research Group

Justice Brennan issued a short dissenting opinion, wherein he stated that he would affirm the lower court's judgment because in his view section 12(f) "compels those students seeking financial aid who have not registered with the Selective Service in timely fashion to incriminate themselves and thereby violates the Fifth Amendment." For the rest, he deferred to Justice Marshall. The latter, in a much longer and more forceful opinion, took an approach not unlike the one he had used in a very different case, Beal v. Doe (1977). In both cases, he held that the withholding of government benefits from a financially needy individual--abortions for young women in Beal, college money for young men in Selective Service--did indeed constitute a form of coercion or compulsion. Likewise in both dissenting opinions, he attacked a policy of what he judged as special punishment for the poor.

Section 12(f), Justice Marshall wrote, was unconstitutional not only on the Fifth Amendment question, but also from a standpoint not previously discussed in the case: that of the Fourteenth Amendment's Due Process Clause. When Congress enacted 12(f), it was well aware that some 674,000 of the 9,039,000 young men eligible for the draft had failed to register. In using the statute in question, however, it had sought to unfairly coerce the poor to shoulder the burden of national defense. Given his other disagreement with the statute, Justice Marshall wrote, it was not necessary to approach it on the bill of attainder issue; the Fifth Amendment critique was powerful enough. Marshall conceded that 12(f) did not force the student to incriminate himself before his educational institution, but "our inquiry cannot stop here." The statute in Marshall's eyes clearly coerced registration with the Selective Service System, and this led to reporting of self-incriminatory information to the federal government.

Hence a student who registered after the 30 day deadline "provides the Government with two crucial links in the chain of evidence necessary to prosecute him criminally." First of all, his birth date and date of registration offered two pieces of evidence that the student has violated a law; second, and in Marshall's view even more important, the student thus called attention to his technical violation of the Military Selective Service Act. "Armed with these data," Marshall wrote, "the Government need only prove that the student `knowingly' failed to register at the time prescribed by law in order to obtain a conviction."

As for the Fourteenth Amendment issue, Justice Marshall addressed the fact that it had not been raised by the rest of the Court when he noted "The majority's superficial, indeed cavalier, rejection of appellees' equal protection argument." This, he said, quoting himself in Flagg Bros., Inc. v. Brooks (1978), showed a "callous indifference to the realities of life for the poor." It was incorrect to say, as the majority had, that 12(f) treated all young men alike. The fact was, according to Marshall--who quoted a statement by Rep. Moffett during floor debate on the issue in 1982--"Only low- income and middle-income students will be caught in this trap."