Drafting Women Into the Military Shouldn’t Be Up to a Judge

(Bloomberg Opinion) -- A federal district court in Houston has held that because women are now permitted to serve in combat roles in the U.S. military, all women must be obligated to register for the draft, just as men do.

This might sound like a straightforward win for feminism, especially from the perspective of the old-fashioned legal-equality feminism championed by Ruth Bader Ginsburg, both as an advocate and as a U.S. Supreme Court justice.

Yet the court’s decision raises the more complicated question of whether women should simply be offered access to traditionally male roles in the military, like combat positions, or whether they should be forced to assume those jobs.

That in turn raises the related problem of whether this important policy decision should have been left to Congress, rather than being made by judicial fiat.

The court’s decision had to get around Supreme Court precedent to the contrary. In the 1981 case Rostker v. Goldberg, the court held that the constitutional principles of equality found in the due process clause did not require Congress to make women register with the Selective Service System for a potential draft.

The justices first made the point that Congress deserved special deference in national defense decisions. The Constitution gives Congress the power to raise armies, and the courts are especially ill-informed about such matters relative to the expertise available to Congress and the military. Chief Justice William Rehnquist said that deference to Congress was “at its apogee” when it came to the draft decision.

Then the court went on to say that the core reason for a draft was that the nation might need combat troops. Because “women as a group, unlike men as a group, are not eligible for combat,” Rehnquist wrote, the exemption of women from the draft wasn’t based on sex-stereotyping of the type that the court had already held unconstitutional.

The federal judge in the 2019 lawsuit, brought by the National Coalition for Men and two men eligible for the draft, said the 1981 precedent no longer applied because women are now permitted to participate in combat roles. Thus, Judge Gray H. Miller explained, the Supreme Court’s 1981 statement about women not being eligible for combat was no longer correct.

The judge went on to say that the government could no longer justify treating women and men unequally in requiring men but not women to register.

Not surprisingly, the government argued that there is a difference between allowing women to serve and requiring them to serve. The judge found the government’s explanation inadequate and unconvincing.

From a purely logical standpoint, it’s odd that the court didn’t accept the government’s answer.

Imagine a draft tomorrow under current combat rules, which allow but don’t require women to fight. If only a small portion of the women drafted actually chose to serve in combat, drafting them wouldn’t serve Congress’s need for combat troops — the legal justification for the draft.

The court’s decision only makes sense if women would be obligated to serve in combat. Yet the district judge didn’t expressly say he was ordering the military to obligate women to serve. This is probably enough reason for a court of appeals to reverse the decision if it wants to do so.

Seen from the standpoint of 1970s legal feminism, the judge’s decision looks like a win. The case was brought by male plaintiffs, the strategy that Ginsburg often followed in the 1970s to convince the Supreme Court to strike down laws based on sex stereotypes. As we now know, it is a stereotype to say women can’t serve in combat. Of course women can fight.

Yet there remains the question of whether women should be obligated to take combat roles. Some feminists would no doubt say yes. Others might say that true equality would allow women to make that choice for themselves, shaping gender roles as they see fit. It isn’t obvious that being required to fight in wars you may not like expands your equality — or your freedom.

Technically, the district court didn’t hold that women must serve in combat, because that issue wasn’t directly before him.

But logically, the court’s decision creates a legal norm whereby it would be unlawful to allow woman to opt out of combat. According to the court’s logic, the possibility of an opt-out would rest on an illegitimate stereotype. If allowing the opt-out were lawful, then there would not be a strong reason to require women to be drafted.

That sort of decision is arguably the kind that Congress, not the courts, should be making. There are good feminist reasons to require women to fight. There are also plausible feminist reasons not to require it. In a democracy, that’s the sort of value choice that the legislature is supposed to make, not the courts.

Technically, the equal protection clause of the 14th Amendment applies only to the states, not the federal government. So when the courts consider whether the federal government has violated equality, they ask whether the due process clause of the Fifth Amendment has been violated. In practice, there’s no doctrinal difference between what it requires and what the 14th Amendment requires of states.

His use of the SAT word “apogee” to describe peak deference was probably meant to invoke Justice Robert Jackson’s famous statement that the president’s power is “at its lowest ebb” when he is acting against Congress’ intent. Rehnquist clerked for Jackson.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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