Today in 1960: A federal court rules the draft unconstitutional

July 18, 2014

Today in Legal History

Military conscription is likely something that most of us never really think about too much nowadays, since the possibility of such an occurrence doesn’t seem particularly high.

Nevertheless, the draft was once a very really part of life several decades ago.

A federal court once ruled the Selective Service Act’s requirement that only males are subject to registration for the draft – and today marks the 34th anniversary of that ruling: Goldberg v. Rostker was decided on July 18, 1980.

Of course, the case became much more well-known after the Supreme Court reversed the district court in Rostker v. Goldberg, decided just under a year later.  Nevertheless, the district court’s ruling stands as a historical interest because of its conclusion – which may have arguably been ahead of its time.

First, let’s take a step back and look at the facts of the case:

The original legal dispute present in the case began in 1971, when a group of draft protesters filed suit against the government, claiming the draft to be unconstitutional for, among other reasons, violating the Due Process Clause of the Fifth Amendment in that it discriminated on the basis of sex.

Because the draft was discontinued while the case was pending, arguments were never heard and the case was dismissed.  Years later, when draft registration was reinitiated, suit was filed once again; this time, oral arguments were heard, and the district court issued a ruling on the matter.

As mentioned above, the district court ruled that the Selective Service Act unconstitutionally discriminated between males and females in violation of the Fifth Amendment.  Once the opinion disposed of procedural issues such as standing and the proper standard of review, it discussed the substantive portion of the case – which amounted to a thorough analysis of congressional testimony from politicians and military personnel discussing the role of women in the military.

The district court noted that “Congress…continuously allocated funds for the increase of the number of women in the armed services, in both absolute terms and as a percentage of total forces” and that “Congress believes…that it substantially enhances our national defense to constantly expand the utilization of women in the military.”

The court found that these conclusions conflicted with the government’s argument that Congress “endorses legislation excluding women from the pool of registrants available for induction” and that, despite Congress’s allocation of funds for the military to “actively seek more female recruits,” the legislature is justified in “excluding females from selective service, despite the shortfall in the recruitment of women.”

In short, the court determined that the military was actively trying to recruit more women into its ranks, and that an ever increasing number of women were already serving, so it made little sense for the government to completely exclude them from the registration pool.  Consequently, the court ruled the Selective Service Act unconstitutional.

As stated earlier, the Supreme Court reversed the district court the following June.  The Court found that Congress was well within its authority to exclude women from the draft registration pool, since women were then excluded from combat roles and “[t]he purpose of registration was to prepare for a draft of combat troops” (the district court had actually specifically addressed the issue of women in combat roles, and found that women could have easily been drafted into noncombat roles).

If this issue came up today, there are likely a host of other legal hurdles that the draft would need to clear before being reinstituted.  However, considering that women are no longer excluded from combat positions, it’s unclear whether the Supreme Court would reach the same result today as it did over 33 years ago.

Considering the improbability of a reinstitution of the draft, we’ll likely never find out how the courts would have resolved this issue today.  In light of the advances in gender equality in the military in the past three decades, though, it seems likely that the district court’s Rostker opinion would serve as a model today.