Rostker v. Goldberg,
453 U.S. 57 (1981)

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U.S. Supreme Court

Rostker v. Goldberg, 453 U.S. 57 (1981)

Rostker v. Goldberg, 453 U.S. 57 (1981)

No. 80-251

Argued March 24, 1981 -- Decided June 25, 1981

453 U.S. 57


The Military Selective Service Act (Act) authorizes the President to require the registration for possible military service of males, but not females, the purpose of registration being to facilitate any eventual conscription under the Act. Registration for the draft was discontinued by Presidential Proclamation in 1975 (the Act was amended in 1973 to preclude conscription), but as the result of a crisis in Southwestern Asia, President Carter decided in 1980 that it was necessary to reactivate the registration process, and sought Congress' allocation of funds for that purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men. Although agreeing that it was necessary to reactivate the registration process, Congress allocated only those funds necessary to register males, and declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men. In a lawsuit brought by several men challenging the Act's constitutionality, a three-judge District Court ultimately held that the Act's gender-based discrimination violated the Due Process Clause of the Fifth Amendment, and enjoined registration under the Act.

Held: The Act's registration provisions do not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. Pp. 453 U. S. 64-83.

(a) The customary deference accorded Congress' judgments is particularly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality, and perhaps in no area has the Court accorded Congress greater deference than in the area of national defense and military affairs. While Congress is not free to disregard the Constitution when it acts in the area of military affairs, this Court must be particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the Legislative Branch. Congress carefully considered whether to register only males for potential conscription or whether to register both sexes, and its broad constitutional authority

Page 453 U. S. 58

cannot be ignored in considering the constitutionality of its studied choice of one alternative in preference to the other. Pp. 453 U. S. 64-72.

(b) The question of registering women was extensively considered by Congress in hearings held in response to the President's request for authorization to register women, and its decision to exempt women was not the accidental byproduct of a traditional way of thinking about women. Since Congress thoroughly reconsidered the question of exempting women from the Act in 1980, the Act's constitutionality need not be considered solely on the basis of the views expressed by Congress in 1948, when the Act was first enacted in its modern form. Congress' determination that any future draft would be characterized by a need for combat troops was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. And since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men therefore does not violate the Due Process Clause. The testimony of executive and military officials before Congress showed that the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need, rather than "equity." The District Court, undertaking an independent evaluation of the evidence, exceeded its authority in ignoring Congress' conclusions that whatever the need for women for noncombat roles during mobilization, it could be met by volunteers, and that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility. Pp. 453 U. S. 72-83.

509 F.Supp. 586, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., post, p. 453 U. S. 83, and MARSHALL, J., post, p. 453 U. S. 86, filed dissenting opinions, in which BRENNAN, J., joined.

Page 453 U. S. 59

Primary Holding

Draft registration may be restricted to men without violating the Equal Protection Clause.


The President received the authority to institute a draft under Section 3 of the Military Selective Service Act. This law inherently applied only to men, and it was challenged for violating the Equal Protection Clause. The challengers were unsuccessful in the lower courts.



  • William Hubbs Rehnquist (Author)
  • Warren Earl Burger
  • Potter Stewart
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.
  • John Paul Stevens

Intermediate scrutiny is the appropriate level of review for a constitutional challenge to a law that creates a gender distinction. The law must be substantially related to an important government interest. While only men are affected by a draft, only men also are eligible for combat. The clear connection between these distinctions suggests that the government had a legitimate reason for treating the genders differently in this context.


  • Byron Raymond White (Author)
  • William Joseph Brennan, Jr.

Many roles in the armed forces do not require combat training. If the nation mobilized its soldiers, it could use about 80,000 drafted women to facilitate the first six months of that process, according to projections by defense officials. Congress did not appear to believe that every role in the military required a combat-ready male, and there is no other basis for this gender distinction.


  • Thurgood Marshall (Author)
  • William Joseph Brennan, Jr.

Case Commentary

Although the Court did not explicitly apply intermediate scrutiny, it seems to have used this standard of review implicitly in finding that there was an important government interest and that the means was substantially related to it.

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