Register Women for the Draft? Not so fast

Veteran journalist Sig Christenson wrote an interesting article (in which I am quoted) about whether women will be required to register for the draft now that all combat specialties are open to them.

At first blush, the answer for many would seem to be a resounding “Of course women should have to register!”  In fact, last Friday Lawrence G. Romo, the Director of Selective Service System, said that it’s quite likely that females will have to sign up for Selective Service in coming years.”

That may be the right political answer, but would it be legally required?

Maybe not.  When the Supreme Court upheld the Constitutionality of the male-only draft in the 1981 case of Rostker v. Goldberg, it concluded that men and women were “simply not similarly situated for purposes of a draft” because there were then existing “combat restrictions” on women’s military service. Consequently, the Court said that as the “purpose of [draft] registration is to develop a pool of potential combat troops,” Congress could reasonably conclude that it was necessary to draft only men since they were the only ones who could then serve as combat troops.

Even though the combat restrictions so important in Rostker’s holding are now gone, there may still be a legitimate rationale to limit the draft to males.  Specifically, it might prove true that only a small percentage of women are physically able to serve as combat troops in, for example, the infantry.

Accordingly, the courts may continue to find it not unreasonable for Congress to maintain a male-only draft if it is mainly aimed at developing a pool of infantry troops, simply because it would be so militarily inefficient and costly to draft thousands of females when it can be reasonably expected that doing so will yield only a small number physically-qualified for direct combat roles.

In other words, I just don’t think the courts will say, in effect, that if the government wants to have a draft because it needs infantry, it also must draft women as a matter of constitutional imperative – even if the facts show that only a small percentage of women will actually qualify for the infantry, and if they also show that all the combat troops that are needed can be much more efficiently obtained from a male-only draft.

Put another way, under the circumstances described above, I doubt the courts would override Congress’ determination as to the best conscription scheme to fill infantry billets, especially in the midst of the kind of serious national emergency which would necessitate a draft in the first place.  After all, historically the judiciary has been reluctant to second-guess the findings of the elected branches of government in these sorts of issues.  In Gilligan v. Morgan (cited with approval in Rostker) the Court noted:

[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.

Yes, the Court did not defer to Congress in its post-9/11 detention and military commissions’ decisions (and other cases arguably involving national security), but I would contend that they did not dismantle the entire edifice of deference to the legislative branch in military matters, and especially with respect to “the composition, training, equipping, and control of a military force” – adding emphasis (in this context) to the word “composition.”

However, here’s what could generate a major exception to the Court’s traditional deference: at some future point an urgent need arises for thousands of military personnel with certain minimum abilities, but those abilities are mental in nature, not physical, and many women (and, for that matter, disabled people of either gender) could meet them. 

An example?  Consider the operation of complex, high-tech weaponry via a computer console.  That might be one kind of vital but hard-to-fill billet that requires great intellectualism, yet little physicality.  If able-bodied men are the only ones being drafted to fill such positions, then the Constitutional basis for the draft as presently constructed by Congress would be undermined.

In that situation all sorts of people not currently physically qualified for military service could become subject to the draft.  Keep in mind that as a Constitutional matter, it is well-settled that military service can be compelled of everyone.  In fact, the Supreme Court has never held that even conscientious objection was a Constitutional entitlement (it does exist as a matter of legislative grace). 

In Jacobson v. Massachusetts, the Court said (in dicta) that someone “may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense.”

In any event, if Congress were to decide to change the law to require both genders to register for the draft (and, in fact, serve in the armed forces), there is little doubt in my mind that the courts would not interfere with the conscription of women. 

To be clear, I believe this would be the case not only if the military needed high-tech talent, but even where a draft was mainly aimed at providing infantry troops.  I’m convinced that the courts would still defer to Congress if it decided – perhaps as a matter of social equity or other policy reason – to draft women despite knowing that only few could physically perform the battlefield duties of the infantry.

Again, it’s about deference to the elected branches in national security matters.  As the Rostker court noted, there is “no area [in which] the Court [has] accorded Congress greater deference than in the area of national defense and military affairs.”

But will there be a change in the law anytime soon?  Not likely – and especially not in an election year. There doesn’t seem to be any appetite among the presidential candidates – none of whom served in the military – to raise this potentially divisive issue under circumstances where the all-volunteer military is not short of personnel (and, in fact, is downsizing).

So long as the requirement is limited to mere registration, there won’t be enough political incentive for action in Congress, at least in the near term.  That, of course, could change rapidly if some sort of crisis arose where it became necessary to actually begin to induct draft registrants, especially those males who may not want to serve.

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