This is a guest post by Dorit Geva. Geva is an Assistant Professor of Sociology at the Central European University, and has written a book on conscription politics in France and the United States. Megan H. Mackenzie wrote an earlier post on this topic.
Defense Secretary Leon Panetta’s announcement that some 230,000 combat jobs might open for American servicewomen in the armed forces is a watershed moment for the American military. But the consequences will resonate beyond his announcement’s effects on professional soldiers. Since the 1980s, the legal reasoning barring women from registering with the draft has been that women do not serve in combat positions. Panetta’s surprise announcement will not only transform the career opportunities of women in uniform, but could affect every woman living on American soil.
The draft has been an all-male institution since the day it was created. Founded in 1917 with American intervention in World War I, President Woodrow Wilson and his advisers had to quickly put together a draft system for the first truly federal draft in American history. The system established, and which remains in place to this day, is a two-stage process where men register with local boards, and only some can then be drafted based on a combination of draft board decisions and a lottery. Although it disbanded after WWI, the draft was revived again in 1940 when America was still at peace and hadn’t yet joined the Allied forces fighting in WWII, and continued to operate almost uninterrupted until cancellation of the draft in 1973, and cessation of registration in 1975.
President Carter asked to revive registration in 1980 after the Soviet advance on Afghanistan, and this time requested to incorporate women too. Congress called for Congressional Hearings on women’s registration, and ultimately determined that, “a male-only system best serves our national security.” Members of Congress were especially worried about how registering women would affect the distribution of roles within American families. A male-only registration was ordered to proceed.
In response to the renewal of a male-only registration, three male plaintiffs filed suit in Pennsylvania, claiming that the all-male draft registration was unconstitutional on the grounds of sex discrimination. Testing the constitutionality of a male-only draft was possible by 1980 thanks to articulation of the judicial doctrine of intermediate scrutiny as of 1976, which views sex discrimination as a violation of the Fifth and Fourteenth Amendments of the constitution. Since then, a gender-based distinction within state and federal law can pass constitutional scrutiny only if it 1) serves important governmental objectives, and 2) is substantially related to achievement of those objectives.
The Eastern District Court of Pennsylvania concurred with the three plaintiffs, and only three days before the new draft registration was set to start, ruled that the male-only registration was unconstitutional. Applying the test of intermediate scrutiny, the District Court judges were not persuaded by Congress’s decision to ban women from registering with the Selective Service System. The government had argued to the District Court that registering women would have the effect of decreasing military flexibility. At a time of mobilization, personnel would be needed who could be easily deployed into combat service. Since women were barred from combat positions, registering women, they argued, would decrease flexibility, and therefore barring women from registration could pass intermediate scrutiny.
The Eastern District Court of Pennsylvania, however, determined that the Government’s assessment of the effect of women’s registration did not withstand intermediate scrutiny. Military studies had shown that women were already skilled in professions such as nursing and clerical work, so that they could be inducted immediately to fill parallel positions in the armed forces, releasing more men for combat service. Consequently, reasoned the District Court, registering and inducting women in fact increased military flexibility, and so there was not sufficiently good reason to maintain a male-only registration.
The Selective Service System’s Director, Bernard Rostker, successfully appealed the District Court’s decision so that the male-only registration could proceed, and the Supreme Court reviewed the case in Rostker v. Goldberg in March of 1981. Persuaded that a male-only registration passed intermediate scrutiny, the Supreme Court overturned the District Court’s ruling in June 1981. The majority decision explained that it viewed drafting soldiers for combat troops as the primary purpose of draft registration. Given that women were barred from combat service, and given that the Court determined that the prime purpose of registration is furnishing combat soldiers, the Court accepted that the male-only draft registration passed the test of intermediate scrutiny. Forcing women to register when women could not serve in front line combat positions would be “positively detrimental to the important goal of military flexibility.” More recent cases (like this one) have continued to defer to the Supreme Court’s 1981 decision, with judges reiterating that the male-only draft is constitutional because women are barred from front-line combat positions.
The military has been one of the last bastions where the sexes can legally be treated differently. Secretary Panetta’s announcement is undoubtedly a defining moment for women in the All Volunteer Force. However, its potential impact upon all American households has yet to be fully played out. The services have been granted until 2016 to determine exceptions to the new rule. These exceptions might serve to maintain the legality of a male-only draft, but even if so, it is standing on an increasingly thin reed. Meanwhile, most men living on American soil must continue to register with the Selective Service System when they reach the age of eighteen.
After more than a decade of women’s frontline service in Iraq and Afghanistan, Panetta’s announcement has been accepted as almost inevitable by even more conservative members of Congress. But, the specter of mothers, wives, and daughters registering with Selective Service is another story. It would challenge deeply held ideas about the appropriate roles women and men should play within their families, and how far the military, legal – and feminist revolutions can go. America needs to brace itself for the next battle over the role of women at home and in the military.