Secretary of Defense, Leon Panetta, signed an order
this week lifting a ban on women to serve in combat roles in the US military. While the final integration of women is still to be determined, it raises the question of whether or not women are eligible for the draft.
In a landmark decision, Rostker v. Goldberg,
the Supreme Court of the United States (SCOTUS) ruled that the practice of requiring only men to register for the draft was constitutional. The lawsuit, challenging the men only provision, came as a result of President Jimmy Carters re-establishment of the Selective Services, with a recommendation to include women. Congress enacted the law, however with the provision that it apply to men only.
When the act was challenged, SCOTUS, upheld the act
and in a majority decision wrote:
The existence of the combat 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 of the ruling was to hold valid the statutory restrictions on gender discrimination in assigning combat roles.
Since women were banned from combat roles at the time of the SCOTUS decision, it would follow that the decision to include women in combat roles invalidates the supreme court ruling. Both the Pentagon and the Selective Service hold rosters of prospective male enlistees. A spokesman for the Selective Service, Richard S. Flahavan, said on Friday:
“Until Congress and the president make a change, we will continue doing what we’re doing.
In essence the 1981 legislation remains in place and the Selective Service will continue what it is doing and continue to register only males aged 18-25. On the website of the Selective Service, there is a backgrounder on women and the draft in America
. The article provides a brief history of the SCOTUS decision in 1981 and the results of a presidential commission, which examined the feasibility of drafting women.
In 1992, a Presidential Commission on the Assignment of Women in the Armed Forces reexamined the issue of registration and conscription of women. In its November 1992 report, by a vote of 11 to 3, the Commission recommended that women not be required to register for or be subject to conscription. The Commission cited the 1981 Supreme Court decision in Rostker v. Goldberg upholding the exclusion of women from registration as the basis for its recommendation.
The decision was reviewed again in 1994 and 1998, with similar results, adding that legislation would be needed to change the current requirement to register. There are pros and cons to registering women. For one it would expand the pool of persons available for the draft, if necessary. Gender equality would finally be achieved in the military.
On the other hand the question is which women are exempt? While gender equality may be a goal, women are also the mothers of the nation. Would the public really accept having mothers die on the battlefield?
Registering women for the draft is not a black or white issue, it contains several grey areas. It is a complicated issue and it is doubtful that suitable legislation can be written or passed anytime soon. If women were required to register, along with exemptions, it may just cause resentment and endanger cohesiveness and morale of a unit. Perhaps the best option is for women to continue to volunteer as they have in the past.