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
JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented is whether the Military Selective Service
Act, 50 U.S.C.App. § 451
et seq. (1976 ed. and Supp. III),
violates the Fifth Amendment to the United States Constitution in
authorizing the President to require the registration of males, and
not females.
I
Congress is given the power under the Constitution "To raise and
support Armies," "To provide and maintain a Navy," and "To make
Rules for the Government and Regulation of the land and naval
Forces." Art. I, § 8, cls. 12-14. Pursuant to this grant of
authority, Congress has enacted the Military Selective Service Act,
50 U.S.C.App. § 451
et seq. (1976 ed. and Supp. III) (the
MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended,
50 U.S.C.App. § 453, empowers the President, by proclamation, to
require the registration of "every male citizen" and male resident
aliens between the ages of 18 and 26. The purpose of this
registration is to facilitate any eventual conscription: pursuant
to § 4 (a) of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. §
454 (a), those persons required to register under § 3 are liable
for
Page 453 U. S. 60
training and service in the Armed Forces. The MSSA registration
provision serves no other purpose beyond providing a pool for
subsequent induction.
Registration for the draft under § 3 was discontinued in 1975.
Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.),
note following 50 U.S.C.App. § 453. In early 1980, President Carter
determined that it was necessary to reactivate the draft
registration process. [
Footnote
1] The immediate impetus for this decision was the Soviet armed
invasion of Afghanistan. 16 Weekly Comp. of Pres.Doc. 198 (1980)
(State of the Union Address). According to the administration's
witnesses before the Senate Armed Services Committee, the resulting
crisis in Southwestern Asia convinced the President that the "time
has come" "to use his present authority to require registration . .
. as a necessary step to preserving or enhancing our national
security interests." Department of Defense Authorization for
Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the
Senate Committee on Armed Services, 96th Cong., 2d Sess., 1805
(1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John
P. White, Deputy Director, Office of Management and Budget, Dr.
Bernard Rostker, Director, Selective Service System, and Richard
Danzig, Principal Deputy Assistant Secretary of Defense). The
Selective Service System had been inactive, however, and funds were
needed before reactivating registration. The President therefore
recommended that funds be transferred from the Department of
Defense to the separate Selective Service System. H.R.Doc. No.
96-267, p. 2 (1980). He also recommended that Congress take action
to amend the MSSA to permit the registration and conscription of
women as well as men.
See House Committee on Armed
Services, Presidential Recommendations
Page 453 U. S. 61
for Selective Service Reform -- A Report to Congress Prepared
Pursuant to Pub.L. 96-107, 96th Cong., 2d Sess., 223 (Comm.Print
No.19, 1980) (hereinafter Presidential Recommendations), App,
57-61.
Congress agreed that it was necessary to reactivate the
registration process, and allocated funds for that purpose in a
Joint Resolution which passed the House on April 22 and the Senate
on June 12. H.J.Res. 521, Pub.L. 9282, 94 Stat. 552. The Resolution
did not allocate all the funds originally requested by the
President, but only those necessary to register males.
See
S.Rep. No. 96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong.Rec. 13895
(1980) (Sen. Nunn). Although Congress considered the question at
great length,
see infra at
453 U. S. 72-74,
it declined to amend the MSSA to permit the registration of
women.
On July 2, 1980, the President, by Proclamation, ordered the
registration of specified groups of young men pursuant to the
authority conferred by § 3 of the Act. Registration was to commence
on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).
These events of last year breathed new life into a lawsuit which
had been essentially dormant in the lower courts for nearly a
decade. It began in 1971, when several men subject to registration
for the draft and subsequent induction into the Armed Services
filed a complaint in the United States District Court for the
Eastern District of Pennsylvania challenging the MSSA on several
grounds. [
Footnote 2] A
three-judge District
Page 453 U. S. 62
Court was convened in 1974 to consider the claim of unlawful
gender-based discrimination which is now before us. [
Footnote 3] On July 1, 1974, the court
declined to dismiss the case as moot, reasoning that, although
authority to induct registrants had lapsed,
see n 1
supra, plaintiffs were
still under certain affirmative obligations in connection with
registration.
Rowland v. Tarr, 378 F.
Supp. 766. Nothing more happened in the case for five years.
Then, on June 6, 1979, the court Clerk, acting pursuant to a local
rule governing inactive cases, proposed that the case be dismissed.
Additional discovery thereupon ensued, and defendants moved to
dismiss on various justiciability grounds. The court denied the
motion to dismiss, ruling that it did not have before it an
adequate record on the operation of the Selective Service System
and what action would be necessary to reactivate it.
Goldberg
v. Tarr, 510 F.
Supp. 292 (1980). On July 1, 1980, the court certified a
plaintiff class of
"all male persons who are registered or subject to registration
under 50 U.S.C.App. § 453 or are liable for training and service in
the armed forces of the United States under 50 U.S.C.App. §§ 454,
456 (h) and 467 (c)."
509 F.
Supp. 586, 589. [
Footnote
4]
Page 453 U. S. 63
On Friday, July 18, 1980, three days before registration was to
commence, the District Court issued an opinion finding that the Act
violated the Due Process Clause of the Fifth Amendment and
permanently enjoined the Government from requiring registration
under the Act. The court initially determined that the plaintiffs
had standing and that the case was ripe, determinations which are
not challenged here by the Government. Turning to the merits, the
court rejected plaintiffs' suggestions that the equal protection
claim should be tested under "strict scrutiny," and also rejected
defendants' argument that the deference due Congress in the area of
military affairs required application of the traditional "minimum
scrutiny" test. Applying the "important government interest" test
articulated in
Craig v. Boren, 429 U.
S. 190 (1976), the court struck down the MSSA. The court
stressed that it was not deciding whether or to what extent women
should serve in combat, but only the issue of registration, and
felt that this "should dispel any concern that we are injecting
ourselves in an inappropriate manner into military affairs." 509 F.
Supp. at 597.
See also id. at 599, nn. 17 and 18. The
court then proceeded to examine the testimony and hearing evidence
presented to Congress by representatives of the military and the
Executive Branch, and concluded on the basis of this testimony
that
"military opinion, backed by extensive study, is that the
availability of women registrants would materially increase
flexibility, not hamper it."
Id. at 603. It rejected Congress' contrary
determination in part because of what it viewed as Congress'
"inconsistent positions" in declining to register women yet
spending funds to recruit them and expand their opportunities in
the military.
Ibid.
Page 453 U. S. 64
The Director of Selective Service immediately filed a notice of
appeal, and the next day, Saturday, July 19, 1980, JUSTICE BRENNAN,
acting in his capacity as Circuit Justice for the Third Circuit,
stayed the District Court's order enjoining commencement of
registration.
448 U. S. 448
U.S. 1306. Registration began the next Monday. On December 1, 1980,
we noted probable jurisdiction. 449 U.S. 1009.
II
Whenever called upon to judge the constitutionality of an Act of
Congress -- "the gravest and most delicate duty that this Court is
called upon to perform,"
Blodett v. Holden, 275 U.
S. 142,
275 U. S. 148
(1927) (Holmes, J.) -- the Court accords "great weight to the
decisions of Congress."
Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S.
94,
412 U. S. 102
(1973). The Congress is a coequal branch of government whose
Members take the same oath we do to uphold the Constitution of the
United States. As Justice Frankfurter noted in
Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.
S. 123,
341 U. S. 164
(1951) (concurring opinion), we must have
"due regard to the fact that this Court is not exercising a
primary judgment, but is sitting in judgment upon those who also
have taken the oath to observe the Constitution and who have the
responsibility for carrying on government."
The customary deference accorded the judgments of Congress is
certainly appropriate when, as here, Congress specifically
considered the question of the Act's constitutionality.
See,
e.g, S.Rep. No. 96-826, pp. 159-161 (1980); 126 Cong.Rec.
13880-13882 (1980) (Sen. Warner);
id. at 13896 (Sen.
Hatfield).
This is not, however, merely a case involving the customary
deference accorded congressional decisions. The case arises in the
context of Congress' authority over national defense and military
affairs, and perhaps in no other area has
Page 453 U. S. 65
the Court accorded Congress greater deference. In rejecting the
registration of women, Congress explicitly relied upon its
constitutional powers under Art. I, § 8, cls. 12-14. The "specific
findings" section of the Report of the Senate Armed Services
Committee, later adopted by both Houses of Congress, began by
stating:
"Article I, section 8 of the Constitution commits exclusively to
the Congress the powers to raise and support armies, provide and
maintain a Navy, and make rules for Government and regulation of
the land and naval forces, and pursuant to these powers it lies
within the discretion of the Congress to determine the occasions
for expansion of our Armed Forces, and the means best suited to
such expansion, should it prove necessary."
S.Rep. No. 96-826,
supra, at 160.
See also
S.Rep. No. 96-226, p. 8 (1979). This Court has consistently
recognized Congress' "broad constitutional power" to raise and
regulate armies and navies,
Schlesinger v. Ballard,
419 U. S. 498,
419 U. S. 510
(1975). As the Court noted in considering a challenge to the
selective service laws:
"The constitutional power of Congress to raise and support
armies and to make all laws necessary and proper to that end is
broad and sweeping."
United States v. O'Brien, 391 U.
S. 367,
391 U. S. 377
(1968).
See Lichter v. United States, 334 U.
S. 742,
334 U. S. 755
(1948).
Not only is the scope of Congress' constitutional power in this
area broad, but the lack of competence on the part of the courts is
marked. In
Gilligan v. Morgan, 413 U. S.
1,
413 U. S. 10
(1973), 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,
Page 453 U. S. 66
subject always to civilian control of the Legislative and
Executive Branches."
See also Orloff v. Willoughby, 345 U. S.
83,
345 U. S. 93-94
(1953). [
Footnote 5]
The operation of a healthy deference to legislative and
executive judgments in the area of military affairs is evident in
several recent decisions of this Court.
In Parker v. Levy,
417 U. S. 733,
417 U. S. 756,
417 U. S. 758
(1974), the Court rejected both vagueness and overbreadth
challenges to provisions of the Uniform Code of Military Justice,
noting that "Congress is permitted to legislate both with greater
breadth and with greater flexibility" when the statute governs
military society, and that
"[w]hile the members of the military are not excluded from the
protection granted by the First Amendment, the different character
of the military community and of the military mission requires a
different application of those protections."
In
Middendorf v. Henry, 425 U. S.
25 (1976), the Court noted that, in considering due
process claims in the context of a summary court-martial it
"must give particular deference to the determination of
Congress, made under its authority to regulate the land and naval
forces, U.S.Const., Art. I § 8,"
concerning what rights were available.
Id. at
425 U. S. 43.
See also id. at
425 U. S. 49-50
(POWELL, J., concurring). Deference to the judgment of other
branches in the area of military affairs also played a major role
in
Greer v. Spock, 424 U. S. 828,
424 U. S.
837-838 (1976), where the Court upheld a ban on
political speeches by civilians on a military base, and
Brown
v. Glines, 444 U. S. 348
(1980), where the Court upheld regulations imposing a prior
restraint on the right to petition of military personnel.
Page 453 U. S. 67
See also Burns v. Wilson, 346 U.
S. 137 (1953);
United States v. MacIntosh,
283 U. S. 605,
283 U. S. 622
(1931).
In
Schlesinger v. Ballard, supra, the Court considered
a due process challenge, brought by males, to the Navy policy of
according females a longer period than males in which to attain
promotions necessary to continued service. The Court distinguished
previous gender-based discriminations held unlawful in
Reed v.
Reed, 404 U. S. 71
(1971), and
Frontiero v. Richardson, 411 U.
S. 677 (1973). In those cases, the classifications were
based on "overbroad generalizations."
See 419 U.S. at
419 U. S.
506-507. In the case before it, however, the Court
noted:
"[T]he different treatment of men and women naval officers . . .
reflects, not archaic and overbroad generalizations, but, instead,
the demonstrable fact that male and female line officers in the
Navy are
not similarly situated with respect to
opportunities for professional service. Appellee has not challenged
the current restrictions on women officers' participation in combat
and in most sea duty."
Id. at
419 U. S. 508.
In light of the combat restrictions, women did not have the same
opportunities for promotion as men, and therefore it was not
unconstitutional for Congress to distinguish between them.
None of this is to say that Congress is free to disregard the
Constitution when it acts in the area of military affairs. In that
area, as any other, Congress remains subject to the limitations of
the Due Process Clause
See Ex parte
Milligan, 4 Wall. 2 (1866);
Hamilton v.
Kentucky Distilleries & Warehouse Co., 251 U.
S. 146,
251 U. S. 156
(1919), but the tests and limitations to be applied may differ
because of the military context. We, of course, do not abdicate our
ultimate responsibility to decide the constitutional question, but
simply recognize that the Constitution itself requires such
deference to congressional choice.
See Columbia Broadcasting
System,
Page 453 U. S. 68
Inc. v. Democratic National Committee, 412 U.S. at
412 U. S. 103.
In deciding the question before us, we must be particularly careful
not to substitute our judgment of what is desirable for that of
Congress, or our own evaluation of evidence for a reasonable
evaluation by the Legislative Branch.
The District Court purported to recognize the appropriateness of
deference to Congress when that body was exercising its
constitutionally delegated authority over military affairs, 509 F.
Supp. at 596, but it stressed that "[w]e are not here concerned
with military operations or day-to-day conduct of the military,
into which we have no desire to intrude."
Ibid. Appellees
also stress that this case involves civilians, not the military,
and that "the impact of registration on the military is only
indirect and attenuated." Brief for Appellees 19 (emphasis
omitted). We find these efforts to divorce registration from the
military and national defense context, with all the deference
called for in that context, singularly unpersuasive.
United
States v. O'Brien, 391 U. S. 367
(1968), recognized the broad deference due Congress in the
selective service area before us in this case. Registration is not
an end in itself in the civilian world, but rather the first step
in the induction process into the military one, and Congress
specifically linked its consideration of registration to induction,
see, e.g., S.Rep. No. 96-826, pp. 156, 160 (1980).
Congressional judgments concerning registration and the draft are
based on judgments concerning military operations and needs,
see, e.g., id. at 157 ("the starting point for any
discussion of the appropriateness of registering women for the
draft is the question of the proper role of women in combat"), and
the deference unquestionably due the latter judgments is
necessarily required in assessing the former as well. Although the
District Court stressed that it was not intruding on military
questions, its opinion was based on assessments of military need
and flexibility in a time of mobilization.
See, e.g., 509
F. Supp. at 600-605. It would be blinking reality to say that
Page 453 U. S. 69
our precedents requiring deference to Congress in military
affairs are not implicated by the present case. [
Footnote 6]
The Solicitor General argues, largely on the basis of the
foregoing cases emphasizing the deference due Congress in the area
of military affairs and national security, that this Court should
scrutinize the MSSA only to determine if the distinction drawn
between men and women bears a rational relation to some legitimate
Government purpose,
see United States Railroad Retirement Bd.
v. Fritz, 449 U. S. 166
(1980), and should not examine the Act under the heightened
scrutiny with which we have approached gender-based discrimination,
see Michael M. v. Superior Court of Sonoma County,
450 U. S. 464
(1981);
Craig v. Boren, 429 U. S. 190
(1976);
Reed v. Reed, supra. [
Footnote 7] We do not think that the substantive guarantee
of due process or certainty in the law will be advanced by any
further "refinement" in the applicable tests as suggested by the
Government. Announced degrees of "deference" to legislative
judgments, just as levels of "scrutiny"
Page 453 U. S. 70
which this Court announces that it applies to particular
classifications made by a legislative body, may all too readily
become facile abstractions used to justify a result. In this case,
the courts are called upon to decide whether Congress, acting under
an explicit constitutional grant of authority, has by that action
transgressed an explicit guarantee of individual rights which
limits the authority so conferred. Simply labeling the legislative
decision "military" on the one hand, or "gender-based," on the
other, does not automatically guide a court to the correct
constitutional result.
No one could deny that, under the test of
Craig v. Boren,
supra, the Government's interest in raising and supporting
armies is an "important governmental interest." Congress and its
Committees carefully considered and debated two alternative means
of furthering that interest: the first was to register only males
for potential conscription, and the other was to register both
sexes. Congress chose the former alternative. When that decision is
challenged on equal protection grounds, the question a court must
decide is not which alternative it would have chosen, had it been
the primary decisionmaker, but whether that chosen by Congress
denies equal protection of the laws.
Nor can it be denied that the imposing number of cases from this
Court previously cited suggest that judicial deference to such
congressional exercise of authority is at its apogee when
legislative action under the congressional authority to raise and
support armies and make rules and regulations for their governance
is challenged. As previously noted,
supra, at
453 U. S. 67,
deference does not mean abdication. The reconciliation between the
deference due Congress and our own constitutional responsibility is
perhaps best instanced in
Schlesinger v. Ballard, 419 U.S.
at
419 U. S. 510,
where we stated:
"This Court has recognized that 'it is the primary business of
armies and navies to fight or be ready to fight wars should the
occasion arise.'
[ 350 U. S. S. ex rel.]
Toth
Page 453 U. S. 71
v. Quarles, 350 U. S. 11,
350 U. S.
17.
See also Orloff v. Willoughby, 345 U. S.
83,
345 U. S. 94. The
responsibility for determining how best our Armed Forces shall
attend to that business rests with Congress,
see
U.S.Const., Art. I § 8, cls. 12-14, and with the President.
See U.S.Const., Art. II, § 2, cl. 1. We cannot say that,
in exercising its broad constitutional power here, Congress has
violated the Due Process Clause of the Fifth Amendment."
Or, as put a generation ago in a case not involving any claim of
gender-based discrimination:
"[J]udges are not given the task of running the Army. The
responsibility for setting up channels through which . . .
grievances can be considered and fairly settled rests upon the
Congress and upon the President of the United States and his
subordinates. The military constitutes a specialized community
governed by a separate discipline from that of the civilian.
Orderly government requires that the judiciary be as scrupulous not
to interfere with legitimate Army matters as the Army must be
scrupulous not to intervene in judicial matters."
Orloff v. Willoughby, 345 U.S. at
345 U. S.
93-94.
Schlesinger v. Ballard did not purport to apply a
different equal protection test because of the military context,
but did stress the deference due congressional choices among
alternatives in exercising the congressional authority to raise and
support armies and make rules for their governance. In light of the
floor debate and the Report of the Senate Armed Services Committee
hereinafter discussed, it is apparent that Congress was fully aware
not merely of the many facts and figures presented to it by
witnesses who testified before its Committees, but of the current
thinking as to the place of women in the Armed Services. In such a
case, we cannot ignore Congress' broad authority conferred by the
Constitution to raise and support armies when we are urged to
declare
Page 453 U. S. 72
unconstitutional its studied choice of one alternative in
preference to another for furthering that goal.
III
This case is quite different from several of the gender-based
discrimination cases we have considered in that, despite appellees'
assertions, Congress did not act "unthinkingly" or "reflexively and
not for any considered reason." Brief for Appellees 35. The
question of registering women for the draft not only received
considerable national attention and was the subject of wide-ranging
public debate, but also was extensively considered by Congress in
hearings, floor debate, and in committee. Hearings held by both
Houses of Congress in response to the President's request for
authorization to register women adduced extensive testimony and
evidence concerning the issue.
See Hearings on S. 2294;
Hearings on H.R. 6569, Registration of Women, before the
Subcommittee on Military Personnel of the House Committee on Armed
Services, 96th Cong., 2d Sess. (1980) (hereafter House Hearings).
These hearings built on other hearings held the previous year
addressed to the same question. [
Footnote 8]
The House declined to provide for the registration of women when
it passed the Joint Resolution allocating funds for the Selective
Service System.
See 126 Cong.Rec. 8601-8602, 8620 (1980).
When the Senate considered the Joint Resolution, it defeated, after
extensive debate, an amendment which, in effect, would have
authorized the registration of women.
Id. at 13876-13898.
[
Footnote 9] As noted earlier,
Congress in
Page 453 U. S. 73
H.J.Res. 521 only authorized funds sufficient to cover the
registration of males. The Report of the Senate Committee on
Appropriations on H.J.Res. 521 noted that the amount authorized was
below the President's request "due to the Committee's decision not
to provide $8,500,000 to register women," and that "[t]he amount
recommended by the Committee would allow for registration of young
men only." S.Rep. No. 9789, p. 2 (1980);
see 126 Cong.Rec.
13895 (1980) (Sen. Nunn).
While proposals to register women were being rejected in the
course of transferring funds to register males, Committees in both
Houses which had conducted hearings on the issue were also
rejecting the registration of women. The House Subcommittee on
Military Personnel of the House Armed Services Committee tabled a
bill which would have amended the MSSA to authorize registration of
women, H.R. 6569, on March 6, 1980. Legislative Calendar, House
Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980).
The Senate Armed Services Committee rejected a proposal to register
women, S. 2440, as it had one year before,
see S.Rep. No.
9226, pp. 8-9 (1979), and adopted specific findings supporting its
action.
See S.Rep. No. 9826, pp. 156-161 (1980). These
findings were stressed in debate in the Senate on Joint Resolution
521,
see 126 Cong.Rec. 13893-13894 (1980) (Sen. Nunn);
id. at 13880-13881 (Sen. Warner). They were later
specifically endorsed by House and Senate conferees considering the
Fiscal Year 1981 Defense Authorization Bill.
See
S.Conf.Rep. No. 9895, p. 100 (1980) [
Footnote 10]
Page 453 U. S. 74
Later, both Houses adopted the findings by passing the Report.
126 Cong.Rec. 23126, 23261 (1980). The Senate Report, therefore, is
considerably more significant than a typical report of a single
House, and its findings are, in effect, findings of the entire
Congress.
The foregoing clearly establishes that the decision to exempt
women from registration was not the "
accidental byproduct of a
traditional way of thinking about females." Califano v.
Webster, 430 U. S. 313,
430 U. S. 320
(1977) (quoting Califano v. Goldfarb, 430 U.
S. 199, 430 U. S. 223
(1977) (STEVENS, J., concurring in judgment)). In Michael
M., 450 U.S. at 450 U. S. 471,
n. 6 (plurality opinion), we rejected a similar argument because of
action by the California Legislature considering and rejecting
proposals to make a statute challenged on discrimination grounds
gender-neutral. The cause for rejecting the argument is
considerably stronger here. The issue was considered at great
length, and Congress clearly expressed its purpose and intent.
Contrast Califano v. Westcott, 443 U. S.
76, 443 U. S. 87
(1979) ("The gender qualification . . . escaped virtually unnoticed
in the hearings and floor debates"). [Footnote 11]
For the same reasons, we reject appellees' argument that we must
consider the constitutionality of the MSSA solely on the basis of
the views expressed by Congress in 1948, when the MSSA was first
enacted in its modern form. Contrary to the suggestions of
appellees and various
amici, reliance on the legislative
history of Joint Resolution 521 and the activity of the various
Committees of the 96th Congress considering the registration of
women does not violate sound principles that appropriations
legislation should not be considered
Page 453 U. S. 75
as modifying substantive legislation. Congress did not change
the MSSA in 1980, but it did thoroughly reconsider the question of
exempting women from its provisions, and its basis for doing so.
The 1980 legislative history is, therefore, highly relevant in
assessing the constitutional validity of the exemption.
The MSSA established a plan for maintaining "adequate armed
strength . . . to insure the security of [the] Nation." 50
U.S.C.App. § 451(b). Registration is the first step "in a united
and continuous process designed to raise an army speedily and
efficiently,"
Falbo v. United States, 320 U.
S. 549,
320 U. S. 553
(1944),
see United States v. Nugent, 346 U. S.
1,
346 U. S. 9
(1953), and Congress provided for the reactivation of registration
in order to "provid[e] the means for the early delivery of
inductees in an emergency." S.Rep. No. 9826,
supra, at
156. Although the three-judge District Court often tried to sever
its consideration of registration from the particulars of
induction,
see, e.g., 509 F. Supp. at 604-605, Congress
rather clearly linked the need for renewed registration with its
views on the character of a subsequent draft. The Senate Report
specifically found that
"[a]n ability to mobilize rapidly is essential to the
preservation of our national security. . . . A functioning
registration system is a vital part of any mobilization plan."
S.Rep. No. 9826,
supra, at 160. As Senator Warner put
it, "I equate registration with the draft." Hearings on S. 2294, at
1197.
See also id. at 1195 (Sen. Jepsen), 1671 (Sen.
Exon). Such an approach is certainly logical, since under the MSSA
induction is interlocked with registration: only those registered
may be drafted, and registration serves no purpose beyond providing
a pool for the draft. Any assessment of the congressional purpose
and its chosen means must therefore consider the registration
scheme as a prelude to a draft in a time of national emergency. Any
other approach would not be testing the Act in light of the
purposes Congress sought to achieve.
Page 453 U. S. 76
Congress determined that any future draft, which would be
facilitated by the registration scheme, would be characterized by a
need for combat troops. The Senate Report explained, in a specific
finding later adopted by both Houses, that, "[i]f mobilization were
to be ordered in a wartime scenario, the primary manpower need
would be for combat replacements." S.Rep. No. 96-826, p. 160
(1980);
see id. at 158. This conclusion echoed one made a
year before by the same Senate Committee,
see S.Rep. No.
96 226, pp. 2, 6 (1979). As Senator Jepsen put it, "the shortage
would be in the combat arms. That is why you have drafts." Hearings
on S. 2294, at 1688.
See also id. at 1195 (Sen. Jepsen);
126 Cong.Rec. 8623 (1980) (Rep. Nelson). Congress' determination
that the need would be for combat troops if a draft took place was
sufficiently supported by testimony adduced at the hearings so that
the courts are not free to make their own judgment on the question.
See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt.
Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army
Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17
(Assistant Secretary of Defense for Manpower Pirie).
See
also Hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers).
The purpose of registration, therefore, was to prepare for a draft
of combat troops.
Women as a group, however, unlike men as a group, are not
eligible for combat. The restrictions on the participation of women
in combat in the Navy and Air Force are statutory. Under 10 U.S.C.
§ 6015 (1976 ed., Supp. III), "women may not be assigned to duty on
vessels or in aircraft that are engaged in combat missions," and
under 10 U.S.C. § 8549, female members of the Air Force "may not be
assigned to duty in aircraft engaged in combat missions." The Army
and Marine Corps preclude the use of women in combat as a matter of
established policy.
See App. 86, 34, 58. Congress
specifically recognized and endorsed the exclusion of women
from
Page 453 U. S. 77
combat in exempting women from registration. In the words of the
Senate Report:
"The principle that women should not intentionally and routinely
engage in combat is fundamental, and enjoys wide support among our
people. It is universally supported by military leaders who have
testified before the Committee. . . . Current law and policy
exclude women from being assigned to combat in our military forces,
and the Committee reaffirms this policy."
S.Rep. No. 9826,
supra, at 157. The Senate Report
specifically found that "[w]omen should not be intentionally or
routinely placed in combat positions in our military services."
Id. at 160.
See S.Rep. No. 96-226,
supra, at 9. [
Footnote
12] The President expressed his intent to continue the current
military policy precluding women from combat,
see
Presidential Recommendations 3, App. 34, and appellees present
their argument concerning registration against the background of
such restrictions on the use of women in combat. [
Footnote 13] Consistent with the approach
of this Court in
Schlesinger v. Ballard, 419 U.
S. 498 (1975), we must examine appellees' constitutional
claim concerning registration with these combat restrictions firmly
in mind.
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. Again turning to the Senate
Report:
"In the Committee's view, the starting point for any
Page 453 U. S. 78
discussion of the appropriateness of registering women for the
draft is the question of the proper role of women in combat. . . .
The policy precluding the use of women in combat is, in the
Committee's view, the most important reason for not including women
in a registration system."
S.Rep. No. 96-826,
supra, at 157. [
Footnote 14]
The District Court stressed that the military need for women was
irrelevant to the issue of their registration. As that court put
it:
"Congress could not constitutionally require registration under
the MSSA of only black citizens or only white citizens, or single
out any political or religious group simply because those groups
contain sufficient persons to fill the needs of the Selective
Service System."
509 F. Supp. at 596. This reasoning is beside the point. The
reason women are exempt from registration is not because military
needs can be met by drafting men. This is not a case of Congress
arbitrarily choosing to burden one of two similarly situated
groups, such as would be the case with an all-black or all-white,
or an all-Catholic or all-Lutheran, or an all-Republican or
all-Democratic registration. Men and women, because of the combat
restrictions on women, are simply not similarly situated for
purposes of a draft or registration for a draft.
Congress' decision to authorize the registration of only
men,
Page 453 U. S. 79
therefore, does not violate the Due Process Clause. The
exemption of women from registration is not only sufficiently, but
also closely, related to Congress' purpose in authorizing
registration.
See Michael M., 450 U.S. at
450 U. S.
472-473 (plurality opinion);
Craig v. Boren,
429 U. S. 190
(1976);
Reed v. Reed, 404 U. S. 71
(1971). The fact that Congress and the Executive have decided that
women should not serve in combat fully justifies Congress in not
authorizing their registration, since the purpose of registration
is to develop a pool of potential combat troops. As was the case in
Schlesinger v. Ballard, supra, "the gender classification
is not invidious, but rather realistically reflects the fact that
the sexes are not similarly situated" in this case.
Michael M.,
supra, at
450 U. S. 469
(plurality opinion). The Constitution requires that Congress treat
similarly situated persons similarly, not that it engage in
gestures of superficial equality.
In holding the MSSA constitutionally invalid, the District Court
relied heavily on the President's decision to seek authority to
register women and the testimony of members of the Executive Branch
and the military in support of that decision.
See, e.g.,
509 F. Supp. at 603-604, and n. 30. As stated by the
administration's witnesses before Congress, however, the
President's "decision to ask for authority to register women is
based on equity." House Hearings 7 (statement of Assistant
Secretary of Defense Pirie and Director of Selective Service System
Rostker);
see also Presidential Recommendations 3, 21, 22,
App. 35, 59. 60; Hearings on S. 2294, at 1657 (statements of
Executive Associate Director of Office of Management and Budget
Wellford, Director of Selective Service System Rostker, and
Principal Deputy Assistant Secretary of Defense Danzig). This was
also the basis for the testimony by military officials.
Id. at 710 (Gen. Meyer) 1002 (Gen. Allen). The Senate
Report evaluating the testimony before the Committee, recognized
that "[t]he argument for registration and induction of women . . .
is not based on military
Page 453 U. S. 80
necessity, but on considerations of equity." S.Rep. No. 96-826,
p. 158 (1980). Congress was certainly entitled, in the exercise of
its constitutional powers to raise and regulate armies and navies,
to focus on the question of military need rather than "equity."
[
Footnote 15] As Senator
Nunn of the Senate Armed Services Committee put it:
"Our committee went into very great detail. We found that there
was no military necessity cited by any witnesses for the
registration of females."
"The main point that those who favored the registration of
females made was that they were in favor of this because of the
equality issue, which is, of course, a legitimate view. But as far
as military necessity, and that is what we are primarily, I hope,
considering in the overall registration bill, there is no military
necessity for this."
126 Cong.Rec. 13893 (1980).
See also House Hearings 20
(Rep. Holt) ("You are talking about equity. I am talking about
military"). [
Footnote
16]
Although the military experts who testified in favor of
registering women uniformly opposed the actual drafting of
Page 453 U. S. 81
women,
see, e.g., Hearing on S. 109 and S. 226, at 11
(Gen. Rogers), there was testimony that in the event of a draft of
650,000 the military could absorb some 80,000 female inductees.
Hearings on S. 2294, at 1661, 1828. The 80,000 would be used to
fill noncombat positions, freeing men to go to the front. In
relying on this testimony in striking down the MSSA, the District
Court palpably exceeded its authority when it ignored Congress'
considered response to this line of reasoning.
In the first place, assuming that a small number of women could
be drafted for noncombat roles, Congress simply did not consider it
worth the added burdens of including women in draft and
registration plans.
"It has been suggested that all women be registered, but only a
handful actually be inducted in an emergency. The Committee finds
this a confused and ultimately unsatisfactory solution."
S.Rep. No. 96-826,
supra, at 158. As the Senate
Committee recognized a year before, "training would be needlessly
burdened by women recruits who could not be used in combat." S.Rep.
No. 96-226, p. 9 (1979).
See also S.Rep. No. 96-826,
supra, at 159 ("Other administrative problems such as
housing and different treatment with regard to dependency, hardship
and physical standards would also exist"). It is not for this Court
to dismiss such problems as insignificant in the context of
military preparedness and the exigencies of a future
mobilization.
Congress also concluded that whatever the need for women for
noncombat roles during mobilization, whether 80,000 or less, it
could be met by volunteers.
See id. at 160;
id.
at 158 ("Because of the combat restrictions, the need would be
primarily for men, and women volunteers would fill the requirements
for women"); House Hearings 19 (Rep. Holt).
See also
Hearings on S. 2294, at 1195 (Gen. Rogers).
Most significantly, Congress determined that staffing noncombat
positions with women during a mobilization would
Page 453 U. S. 82
be positively detrimental to the important goal of military
flexibility.
". . . [T]here are other military reasons that preclude very
large numbers of women from serving. Military flexibility requires
that a commander be able to move units or ships quickly. Units or
ships not located at the front or not previously scheduled for the
front nevertheless must be able to move into action if necessary.
In peace and war, significant rotation of personnel is necessary.
We should not divide the military into two groups -- one in
permanent combat and one in permanent support. Large numbers of
non-combat positions must be available to which combat troops can
return for duty before being redeployed."
S.Rep. No. 96-826,
supra, at 158. The point was
repeated in specific findings,
id. at 160;
see
also S.Rep. No. 9226,
supra, at 9. In sum, Congress
carefully evaluated the testimony that 80,000 women conscripts
could be usefully employed in the event of a draft, and rejected it
in the permissible exercise of its constitutional responsibility.
See also Hearing on S. 109 and S. 226, at 16 (Gen.
Rogers); [
Footnote 17]
Hearings on S. 2294 at 1682. The District
Page 453 U. S. 83
Court was quite wrong in undertaking an independent evaluation
of this evidence, rather than adopting an appropriately deferential
examination of
Congress' evaluation of that evidence.
In light of the foregoing, we conclude that Congress acted well
within its constitutional authority when it authorized the
registration of men, and not women, under the Military Selective
Service Act. The decision of the District Court holding otherwise
is accordingly
Reversed.
[
Footnote 1]
The President did not seek conscription. Since the Act was
amended to preclude conscription as of July 1, 1973, Pub.L. 92-129,
85 Stat. 353, 50 U.S.C.App. § 467(c), any actual conscription would
require further congressional action.
See S.Rep. No.
96-826, p. 155 (1980).
[
Footnote 2]
Plaintiffs contended that the Act amounted to a taking of
property without due process, imposed involuntary servitude,
violated rights of free expression and assembly, was unlawfully
implemented to advance an unconstitutional war, and impermissibly
discriminated between males and females. The District Court denied
plaintiffs' application to convene a three-judge District Court and
dismissed the suit,
Rowland v. Tarr, 341 F.
Supp. 339 (1972). On appeal, the Court of Appeals for the Third
Circuit affirmed the dismissal of all claims except the
discrimination claim, and remanded the case to the District Court
to determine if this claim was substantial enough to warrant the
convening of a three-judge court under then-applicable 28 U.S.C. §
2282 (1970 ed.) and whether plaintiffs had standing to assert that
claim. 480 F.2d 545 (1973). On remand, the District Court answered
both questions in the affirmative, resulting in the convening of
the three-judge court which decided the case below. The Act
authorizing three-judge courts to hear claims such as this was
repealed in 1976, Pub.L. 94-381, §§ 1 and 2, 90 Stat. 1119, but
remains applicable to suits filed before repeal, § 7, 90 Stat.
1120.
[
Footnote 3]
As the Court stated in
Schlesinger v. Ballard,
419 U. S. 498,
419 U. S. 500,
n. 3 (1975):
"Although it contains no Equal Protection Clause, as does the
Fourteenth Amendment, the Fifth Amendment's Due Process Clause
prohibits the Federal Government from engaging in discrimination
that is 'so unjustifiable as to be violative of due process.'
Bolling v. Sharpe, 347 U. S. 497,
347 U. S.
499."
[
Footnote 4]
When entering its judgment on July 18, the District Court
redefined the class to include
"[a]ll male persons who are registered under 50 U.S.C.App. § 453
or are liable for training and service in the armed forces of the
United States under 50 U.S.C.App. §§ 454, 456(h) and 467(c); and
who are also either subject to registration under Presidential
Proclamation No. 4771 (July 2, 1980) or are presently registered
with the Selective Service System."
509 F. Supp. at 605.
[
Footnote 5]
See also Simmons v. United States, 406 F.2d 456, 459
(CA5),
cert. denied, 395 U.S. 982 (1969) ("That this court
is not competent or empowered to sit as a super-executive authority
to review the decisions of the Executive and Legislative branches
of government in regard to the necessity, method of selection, and
composition of our defense forces is obvious, and needs no further
discussion").
[
Footnote 6]
Congress recognized that its decision on registration involved
judgments on military needs and operations, and that its decisions
were entitled to particular deference:
"The Supreme Court's most recent teachings in the field of equal
protection cannot be read in isolation from its opinions giving
great deference to the judgment of Congress and military commanders
in dealing [with] the management of military forces and the
requirements of military discipline. The Court has made it
unmistakably clear that even our most fundamental constitutional
rights must, in some circumstances, be modified in the light of
military needs, and that Congress' judgment as to what is necessary
to preserve our national security is entitled to great
deference."
S.Rep. No. 96-826, pp. 159-160 (1980).
Deference to Congress' judgment was a consistent and dominant
theme in lower court decisions assessing the present claim.
See, e.g., United States v. Clinton, 310 F.
Supp. 333, 335 (ED La.1970);
United States v.
Offord, 373 F.
Supp. 1117, 1118 (ED Wis.1974).
[
Footnote 7]
It is clear that "[g]ender has never been rejected as an
impermissible classification in all instances."
Kahn v.
Shevin, 416 U. S. 351,
416 U. S. 356,
n. 10 (1974). In making this observation, the Court noted that
"Congress has not so far drafted women into the Armed Services, 50
U.S.C.App. § 454."
Ibid.
[
Footnote 8]
See Reinstitution of Procedures for Registration Under
the Military Selective Service Act: Hearing on S. 109 and S. 226
before the Subcommittee on Manpower and Personnel of the Senate
Committee on Armed Services, 96th Cong., 1st Sess. (1979) (Hearing
on S. 109 and S. 226). Seven months before the President's call for
the registration of women, the Senate Armed Services Committee
rejected the idea,
see S.Rep. No. 96-226, pp. 9
(1979).
[
Footnote 9]
The amendment provided that no funds "shall be made available
for implementing a system of registration which does not include
women." 126 Cong.Rec. 13876 (1980).
[
Footnote 10]
The findings were before the conferees because the Senate Armed
Services Committee had added a provision to the 1981 Defense
Authorization Bill authorizing the transfer of funds to register
young men as a stop-gap measure should Joint Resolution 521 fail.
See S.Conf.Rep. No. 96-895 at 100.
[
Footnote 11]
Nor can we agree with the characterization of the MSSA in the
Brief for National Organization for Women as
Amicus Curiae
as a law which "coerce[s] or preclude[s] women as a class from
performing tasks or jobs of which they are capable," or the
suggestion that this case involves "[t]he exclusion of women from
the military."
Id. at 120. Nothing in the MSSA restricts
in any way the opportunities for women to volunteer for military
service.
[
Footnote 12]
No major country has women in combat jobs in their standing
army.
See App. 143.
[
Footnote 13]
See Brief for Appellees 1-2, n. 2 (denying any
concession of the validity of combat restrictions, but submitting
restrictions are irrelevant to the present case).
See also
App. 256.
[
Footnote 14]
JUSTICE MARSHALL's suggestion that, since Congress focused on
the need for combat troops in authorizing male-only registration,
the Court could "be forced to declare the male-only registration
program unconstitutional,"
post at
453 U. S. 96, in
the event of a peacetime draft misreads our opinion. The perceived
need for combat or combat-eligible troops in the event of a draft
was not limited to a wartime draft.
See, e.g., S.Rep. No.
96-826 at 157 (considering problems associated with "[r]egistering
women for assignment to combat
or assigning women to combat
positions in peacetime") (emphasis supplied);
id. at
158 (need for rotation between combat and noncombat positions "[i]n
peace and war").
[
Footnote 15]
The grant of constitutional authority is, after all, to
Congress, and not to the Executive or military officials.
[
Footnote 16]
The District Court also focused on what it termed Congress'
"inconsistent positions" in encouraging women to volunteer for
military service and expanding their opportunities in the service,
on the one hand, and exempting them from registration and the draft
on the other. 509 F. Supp. at 603-604. This reasoning fails to
appreciate the different purposes served by encouraging women
volunteers and registration for the draft. Women volunteers do not
occupy combat positions, so encouraging women to volunteer is not
related to concerns about the availability of combat troops. In the
event of a draft, however, the need would be for combat troops or
troops which could be rotated into combat.
See supra at
453 U. S. 76.
Congress' positions are clearly not inconsistent, and in treating
them as such, the District Court failed to understand Congress'
purpose behind registration, as distinguished from its purpose in
encouraging women volunteers.
[
Footnote 17]
General Rogers' testimony merits quotation:
"General ROGERS. One thing which is often lost sight of,
Senator, is that, in an emergency during war, the Army has often
had to reach back into the support base, into the supporting
elements in the operating base, and pull forward soldiers to fill
the ranks in an emergency; that is, to hand them a rifle or give
them a tanker suit and put them in the front ranks."
"Senator WARNER. General Patton did that at one time, I believe
at the Battle of the Bulge."
"General ROGERS. Absolutely."
"Now, if that support base and that operating base to the rear
consists in large measure of women, then we don't have that
opportunity to reach back and pull them forward, because women
should not be placed in a forward fighting position or in a tank,
in my opinion. So that, too, enters the equation when one consider
the subject of the utility of women under contingency
conditions."
JUSTICE WHITE, with whom JUSTICE BRENNAN joins, dissenting.
I assume what has not been challenged in this case -- that
excluding women from combat positions does not offend the
Constitution. Granting that, it is self-evident that, if, during
mobilization for war, all noncombat military positions must be
filled by combat-qualified personnel available to be moved into
combat positions, there would be no occasion whatsoever to have any
women in the Army, whether as volunteers or inductees. The Court
appears to say,
ante at
453 U. S. 76-77,
that Congress concluded as much, and that we should accept that
judgment even though the serious view of the Executive Branch,
including the responsible military services, is to the contrary.
The Court's position in this regard is most unpersuasive. I
perceive little, if any, indication that Congress itself concluded
that every position in the military, no matter how far removed from
combat, must be filled with combat-ready men. Common sense and
experience in recent wars, where women volunteers were employed in
substantial numbers, belie this view of reality. It should not be
ascribed to Congress, particularly in the face of the testimony of
military authorities, hereafter referred to, that there would be a
substantial
Page 453 U. S. 84
number of positions in the services that could be filled by
women both in peacetime and during mobilization, even though they
are ineligible for combat.
I would also have little difficulty agreeing to a reversal if
all the women who could serve in wartime without adversely
affecting combat readiness could predictably be obtained through
volunteers. In that event, the equal protection component of the
Fifth Amendment would not require the United States to go through,
and a large segment of the population to be burdened with, the
expensive and essentially useless procedure of registering women.
But again I cannot agree with the Court,
see ante at
453 U. S. 81,
that Congress concluded or that the legislative record indicates
that each of the services could rely on women volunteers to fill
all the positions for which they might be eligible in the event of
mobilization. On the contrary, the record, as I understand it,
supports the District Court's finding that the services would have
to conscript at least 80,000 persons to fill positions for which
combat-ready men would not be required. The consistent position of
the Defense Department representatives was that their best estimate
of the number of women draftees who could be used productively by
the services in the event of a major mobilization would be
approximately 80,000 over the first six months.
See
Hearings on S. 2294 before the Senate Committee on Armed Services,
96th Cong., 2d Sess., 1681, 1688 (1980); Hearings on H.R. 6569
before the Subcommittee on Military Personnel of the House
Committee on Armed Services, 96th Cong., 2d Sess., 16 (1980). This
number took into account the estimated number of women volunteers,
see Deposition of Director of Selective Service Bernard
Rostker 8; Deposition of Principal Deputy Assistant Secretary of
Defense Richard Danzig, App. 276. Except for a single, unsupported,
and ambiguous statement in the Senate Report to the effect that
"women volunteers would fill the requirements for women," there is
no indication that Congress rejected the
Page 453 U. S. 85
Defense Department's figures or relied upon an alternative set
of figures.
Of course, the division among us indicates that the record in
this respect means different things to different people, and I
would be content to vacate the judgment below and remand for
further hearings and findings on this crucial issue. Absent that,
however, I cannot agree that the record supports the view that all
positions for which women would be eligible in wartime could and
would be filled by female volunteers.
The Court also submits that, because the primary purpose of
registration and conscription is to supply combat troops, and
because the great majority of noncombat positions must be filled by
combat-trained men ready to be rotated into combat, the absolute
number of positions for which women would be eligible is so small
as to be
de minimis and of no moment for equal protection
purposes, especially in light of the administrative burdens
involved in registering all women of suitable age. There is some
sense to this; but at least on the record before us, the number of
women who could be used in the military without sacrificing combat
readiness is not at all small or insubstantial, and administrative
convenience has not been sufficient justification for the kind of
outright gender-based discrimination involved in registering and
conscripting men, but no women at all.
As I understand the record, then, in order to secure the
personnel it needs during mobilization, the Government cannot rely
on volunteers, and must register and draft not only to fill combat
positions and those noncombat positions that must be filled by
combat-trained men, but also to secure the personnel needed for
jobs that can be performed by persons ineligible for combat without
diminishing military effectiveness. The claim is that, in providing
for the latter category of positions, Congress is free to register
and draft only men. I discern no adequate justification for this
kind of discrimination
Page 453 U. S. 86
between men and women. Accordingly, with all due respect, I
dissent.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
The Court today places its imprimatur on one of the most potent
remaining public expressions of "ancient canards about the proper
role of women,"
Phillips v. Martin Marietta Corp.,
400 U. S. 542,
400 U. S. 545
(1971) (MARSHALL, J., concurring). It upholds a statute that
requires males, but not females, to register for the draft, and
which thereby categorically excludes women from a fundamental civic
obligation. Because I believe the Court's decision is inconsistent
with the Constitution's guarantee of equal protection of the laws,
I dissent.
I
A
The background to this litigation is set out in the opinion of
the Court,
ante at
453 U. S. 59-64,
and I will not repeat that discussion here. It bears emphasis,
however, that the only question presented by this case is whether
the exclusion of women from registration under the Military
Selective Service Act, 50 U.S.C.App. § 451
et seq. (1976
ed. and Supp. III) (MSSA), contravenes the equal protection
component of the Due Process Clause of the Fifth Amendment.
Although the purpose of registration is to assist preparations for
drafting civilians into the military, we are not asked to rule on
the constitutionality of a statute governing conscription.
[
Footnote 2/1] With the advent of
the All-Volunteer Armed Forces, the MSSA was specifically amended
to preclude conscription as of July l, 1973, Pub.L. 92-129, §
101(a)(35), 85 Stat. 353, 50 U.S.C.App. § 467 (c), and reactivation
of the draft would therefore require
Page 453 U. S. 87
a legislative amendment.
See S.Rep. No. 9826, p. 155
(1980). Consequently, we are not called upon to decide whether
either men or women can be drafted at all, whether they must be
drafted in equal numbers, in what order they should be drafted, or,
once inducted, how they are to be trained for their respective
functions. In addition, this case does not involve a challenge to
the statutes or policies that prohibit female members of the Armed
Forces from serving in combat. [
Footnote 2/2] It is with this understanding that I turn
to the task at hand.
B
By now it should be clear that statutes like the MSSA, which
discriminate on the basis of gender, must be examined under the
"heightened" scrutiny mandated by
Craig v. Boren,
429 U. S. 190
(1976). [
Footnote 2/3] Under this
test, a gender-based classification cannot withstand constitutional
challenge unless the classification is substantially related to the
achievement of an important governmental objective.
Kirchberg
v. Feenstra, 450 U. S. 455,
450 U. S. 459,
459-460 (1981);
Wengler v. Druggist Mutual Ins. Co.,
446 U. S. 142,
446 U. S. 150
(1980);
Califano v. Westcott, 443 U. S.
76,
443 U. S. 84
(1979);
Orr v. Orr, 440 U. S. 268,
440 U. S. 278
(1979);
Craig v. Boren, supra, at
429 U. S. 197.
This test applies whether the
Page 453 U. S. 88
classification discriminates against males or females.
Caban
v. Mohammed, 441 U. S. 380,
441 U. S. 391
(1979),
Orr v. Orr, supra, at
440 U. S.
278-279;
Craig v. Boren, supra, at
429 U. S. 204.
[
Footnote 2/4] The party defending
the challenged classification carries the burden of demonstrating
both the importance of the governmental objective it serves and the
substantial relationship between the discriminatory means and the
asserted end.
See Wengler v. Druggist Mutual Ins. Co.,
supra, at
446 U. S. 151;
Caban v. Mohammed, supra, at
441 U. S. 393;
Craig v. Boren, supra, at
429 U. S. 204.
Consequently, before we can sustain the MSSA, the Government must
demonstrate that the gender-based classification it employs bears
"a close and substantial relationship to [the achievement of]
important governmental objectives,"
Personnel Administrator of
Massachusetts v. Feeney, 442 U. S. 256,
442 U. S. 273
(1979).
C
The MSSA states that "an adequate armed strength must be
achieved and maintained to insure the security of this Nation." 50
U.S.C.App. § 451 (b). I agree with the majority,
ante at
453 U. S. 70,
that "[n]o one could deny that . . . the Government's interest in
raising and supporting armies is an
important governmental
interest.'" Consequently, the first part of the Craig v.
Boren test is satisfied. But the question remains whether the
discriminatory means employed itself substantially serves the
statutory end. In concluding that it does, the Court correctly
notes that Congress enacted (and reactivated) the MSSA pursuant to
its constitutional authority to raise and maintain armies.
[Footnote 2/5] The majority also
notes,
Page 453 U. S. 89
ante at
453 U. S. 64,
that "the Court accords `great weight to the decisions of
Congress,'" quoting
Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S.
94,
412 U. S. 12
(1973), and that the Court has accorded particular deference to
decisions arising in the context of Congress' authority over
military affairs. I have no particular quarrel with these
sentiments in the majority opinion. I simply add that even in the
area of military affairs, deference to congressional judgments
cannot be allowed to shade into an abdication of this Court's
ultimate responsibility to decide constitutional questions. As the
Court has pointed out:
"[T]he phrase 'war power' cannot be invoked as a talismanic
incantation to support any exercise of congressional power which
can be brought within its ambit. '[E]ven the war power does not
remove constitutional limitations safeguarding essential
liberties.'"
United States v. Robel, 389 U.
S. 258,
389 U. S.
263-264 (1967), quoting
Home Bldg. & Loan Assn.
v. Blaisdell, 290 U. S. 398,
290 U. S. 426
(1934).
See United States v. L. Cohen Grocery Co.,
255 U. S. 81,
255 U. S. 88-89
(1921);
Hamilton v. Kentucky Distilleries & Warehouse
Co., 251 U. S. 146,
251 U. S. 156
(1919);
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 121-127
(1866).
One such "safeguar[d] [of] essential liberties" is the Fifth
Amendment's guarantee of equal protection of the laws. [
Footnote 2/6] When, as here, a federal law
that classifies on the basis of gender is challenged as violating
this constitutional guarantee, it is ultimately for this Court, not
Congress, to decide whether there exists the constitutionally
required "close and
Page 453 U. S. 90
substantial relationship" between the discriminatory means
employed and the asserted governmental objective.
See Powell v.
McCormack, 395 U. S. 486,
395 U. S. 549
(1969);
Baker v. Carr, 369 U. S. 186,
369 U. S. 211
(1962). In my judgment, there simply is no basis for concluding in
this case that excluding women from registration is substantially
related to the achievement of a concededly important governmental
interest in maintaining an effective defense. The Court reaches a
contrary conclusion only by using an "[a]nnounced degre[e] of
deference' to legislative judgmen[t]" as a "facile
abstractio[n] . . . to justify a result." Ante at
453 U. S. 69,
453 U. S.
70.
II
A
The Government does not defend the exclusion of women from
registration on the ground that preventing women from serving in
the military is substantially related to the effectiveness of the
Armed Forces. Indeed, the successful experience of women serving in
all branches of the Armed Services would belie any such claim. Some
150,000 women volunteers are presently on active service in the
military, [
Footnote 2/7] and their
number is expected to increase to over 250,000 by 1985.
See Department of Defense Authorization for Appropriations
for Fiscal Year 1981: Hearings on S. 2294 before the Senate
Committee on Armed Services, 96th Cong., 2d Sess., 1657, 1683
(1980) (1980 Senate Hearings); Women in the Military: Hearings
before the Military Personnel Subcommittee of the House Committee
on Armed Services, 96th Cong., 1st
Page 453 U. S. 91
and 2d Sess., 13-23 (1979 and 1980) (Women in the Military
Hearings). At the congressional hearings, representatives of both
the Department of Defense and the Armed Services testified that the
participation of women in the All-Volunteer Armed Forces has
contributed substantially to military effectiveness.
See,
e.g., 1980 Senate Hearings, at 1389 (Lt. Gen. Yerks), 1682
(Principal Deputy Assistant Secretary of Defense Danzig); Women in
the Military Hearings, at 123 (Assistant Secretary of Defense
Pirie). Congress has never disagreed with the judgment of the
military experts that women have made significant contributions to
the effectiveness of the military. On the contrary, Congress has
repeatedly praised the performance of female members of the Armed
Forces, and has approved efforts by the Armed Services to expand
their role. Just last year, the Senate Armed Services Committee
declared:
"Women now volunteer for military service and are assigned to
most military specialties. These volunteers now make an important
contribution to our Armed Forces. The number of women in the
military has increased significantly in the past few years, and is
expected to continue to increase."
S.Rep. No. 96-826, p. 157 (1980).
Accord, S.Rep. No.
96-226, p. 8 (1979). [
Footnote 2/8]
These statements thus make clear that Congress' decision to exclude
women from registration -- and therefore from a draft drawing on
the pool of registrants -- cannot rest on a supposed need to
prevent women from serving in the Armed Forces. The justification
for the MSSA's gender-based discrimination must
Page 453 U. S. 92
therefore be found in considerations that are peculiar to the
objectives of registration.
The most authoritative discussion of Congress' reasons for
declining to require registration of women is contained in the
Report prepared by the Senate Armed Services Committee on the
Fiscal Year 1981 Defense Authorization Bill. S.Rep. No. 96-826,
supra, at 156-161. The Report's findings were endorsed by
the House-Senate Conferees on the Authorization Bill.
See
S.Conf.Rep. No. 96-895, p. 100 (1980). Both Houses of Congress
subsequently adopted the findings by passing the Conference Report.
126 Cong.Rec. 23126, 23261 (1980). As the majority notes,
ante at
453 U. S. 74,
the Report's "findings are in effect findings of the entire
Congress." The Senate Report sets out the objectives Congress
sought to accomplish by excluding women from registration,
see S.Rep. No. 96-826,
supra, at 157-161, and
this Court may appropriately look to the Report in evaluating the
justification for the discrimination.
B
According to the Senate Report "[t]he policy precluding the use
of women in combat is . . . the most important reason for not
including women in a registration system." S.Rep. No. 96-826,
supra, at 157;
see also S.Rep. No. 96-226,
supra, at 9. In reaffirming the combat restrictions, the
Report declared:
"Registering women for assignment to combat or assigning women
to combat positions in peacetime then would leave the actual
performance of sexually mixed units as an experiment to be
conducted in war with unknown risk -- a risk that the committee
finds militarily unwarranted and dangerous. Moreover, the committee
feels that any attempt to assign women to combat positions could
affect the national resolve at the time of mobilization, a time of
great strain on all aspects of the Nation's resources."
S.Rep. No. 96-826,
supra, at 157.
Page 453 U. S. 93
Had appellees raised a constitutional challenge to the
prohibition against assignment of women to combat, this discussion
in the Senate Report might well provide persuasive reasons for
upholding the restrictions. But the validity of the combat
restrictions is not an issue we need decide in this case. [
Footnote 2/9] Moreover, since the combat
restrictions on women have already been accomplished through
statutes and policies that remain in force whether or not women are
required to register or to be drafted, including women in
registration and draft plans will not result in their being
assigned to combat roles. Thus, even assuming that precluding the
use of women in combat is an important governmental interest in its
own right, there can be no suggestion that the exclusion of women
from registration and a draft is substantially related to the
achievement of this goal.
The Court's opinion offers a different, though related,
explanation of the relationship between the combat restrictions and
Congress' decision not to require registration of women. The
majority states that "Congress . . . clearly linked the need for
renewed registration with its views of the character of a
subsequent draft."
Ante at
453 U. S. 75.
The Court also states that
"Congress determined that any future draft, which would be
facilitated by the registration scheme, would be characterized by a
need for combat troops."
Ante at
453 U. S. 76.
The Court then reasons that, since women are not eligible for
assignment to combat, Congress' decision to exclude them from
registration is not unconstitutional discrimination, inasmuch
as
"[m]en and women, because of the combat restrictions on women,
are simply not similarly situated for purposes of a draft or
registration for a draft."
Ante at
453 U. S. 78.
There is a certain logic to this reasoning, but the Court's
approach is fundamentally flawed.
Page 453 U. S. 94
In the first place, although the Court purports to apply the
Craig v. Boren test, the "similarly situated" analysis the
Court employs is in fact significantly different from the
Craig
v. Boren approach.
Compare Kirchberg v. Feenstra, 450
U.S. at
450 U. S.
459-460 (employing
Craig v. Boren test),
with id. at
450 U. S. 463
(STEWART, J., concurring in result) (employing "similarly situated"
analysis). The Court essentially reasons that the gender
classification employed by the MSSA is constitutionally permissible
because nondiscrimination is not necessary to achieve the purpose
of registration to prepare for a draft of combat troops. In other
words, the majority concludes that women may be excluded from
registration because they will not be needed in the event of a
draft. [
Footnote 2/10]
This analysis, however, focuses on the wrong question. The
relevant inquiry under the
Craig v. Boren test is not
whether a
gender-neutral classification would
substantially advance important governmental interests. Rather, the
question is whether the gender-based classification is itself
substantially related to the achievement of the asserted
governmental interest. Thus, the Government's task in this case is
to demonstrate that excluding women from registration substantially
furthers the goal of preparing for a draft of combat troops. Or to
put it another way, the Government must show that registering women
would substantially impede its efforts to prepare for such a draft.
Under our precedents, the Government cannot meet this burden
without showing that a gender-neutral statute would be a less
effective means of attaining this end.
See Wengler v. Druggists
Mutual Ins. Co., 446 U.S. at
446 U. S. 151.
As the Court explained in
Orr v. Orr, 440 U.S. at
440 U. S. 283
(emphasis added):
"Legislative classifications which distribute benefits and
burdens on the basis of gender
carry the inherent risk
of
Page 453 U. S. 95
reinforcing sexual stereotypes about the 'proper place' of
women and their need for special protection. . . . Where, as
here, the [Government's] . . . purposes are as well served by a
gender-neutral classification as one that gender classifies, and
therefore carries with it the baggage of sexual stereotypes, the
[Government] cannot be permitted to classify on the basis of
sex."
In this case, the Government makes no claim that preparing for a
draft of combat troops cannot be accomplished just as effectively
by
registering both men and women but
drafting
only men if only men turn out to be needed. [
Footnote 2/11] Nor can the Government argue that this
alternative entails the additional cost and administrative
inconvenience of registering women. This Court has repeatedly
stated that the administrative convenience of employing a gender
classification is not an adequate constitutional justification
under the
Craig v. Boren test.
See, e.g., Craig v.
Boren, 429 U.S. at
429 U. S. 198;
Frontiero v. Richardson, 411 U. S. 677,
411 U. S.
690-691 (1973).
The fact that registering women in no way obstructs the
governmental interest in preparing for a draft of combat troops
points up a second flaw in the Court's analysis. The Court
essentially reduces the question of the constitutionality of
male-only
registration to the validity of a hypothetical
program for
conscripting only men. The Court posits a
draft in which all conscripts are either assigned to those specific
combat posts presently closed to women or must be available for
rotation into such positions. By so doing, the Court is able to
conclude that registering women would be no more than a "gestur[e]
of superficial equality,"
ante at
453 U. S. 79,
since women are necessarily ineligible for every position to be
filled in its hypothetical draft. If it could indeed be
guaranteed
Page 453 U. S. 96
in advance that conscription would be reimposed by Congress only
in circumstances where, and in a form under which, all conscripts
would have to be trained for and assigned to combat or combat
rotation positions from which women are categorically excluded,
then it could be argued that registration of women would be
pointless.
But, of course, no such guarantee is possible. Certainly,
nothing about the MSSA limits Congress to reinstituting the draft
only in such circumstances. For example, Congress may decide that
the All-Volunteer Armed Forces are inadequate to meet the Nation's
defense needs even in times of peace, and reinstitute peacetime
conscription. In that event, the hypothetical draft the Court
relied on to sustain the MSSA's gender-based classification would
presumably be of little relevance, and the Court could then be
forced to declare the male-only registration program
unconstitutional. This difficulty comes about because both Congress
[
Footnote 2/12] and the Court
have lost sight of the important distinction between
registration and
conscription. Registration
provides "an inventory of what the available strength is within the
military qualified pool in this country." Reinstitution of
Procedures for Registration Under the Military Selective Service
Act: Hearing before the Subcommittee on Manpower and Personnel of
the Senate Armed Services Committee, 96th Cong., 1st Sess., 10
(1979) (Selective Service Hearings) (statement of Gen. Rogers).
Conscription supplies the military with the personnel needed to
respond to a particular exigency. The fact that registration is a
first step in the conscription process does not
Page 453 U. S. 97
mean that a registration law expressly discriminating between
men and women may be justified by a valid conscription program
which would, in retrospect, make the current discrimination appear
functionally related to the program that emerged.
But even addressing the Court's reasoning on its own terms, its
analysis is flawed because the entire argument rests on a premise
that is demonstrably false. As noted, the majority simply assumes
that registration prepares for a draft in which
every
draftee must be available for assignment to combat. But the
majority's draft scenario finds no support in either the testimony
before Congress, or more importantly, in the findings of the Senate
Report. Indeed, the scenario appears to exist only in the Court's
imagination, for even the Government represents only that, "in the
event of mobilization,
approximately two-thirds of the
demand on the induction system would be for
combat
skills." Brief for Appellant 29 (emphasis added). For my part,
rather than join the Court in imagining hypothetical drafts, I
prefer to examine the findings in the Senate Report and the
testimony presented to Congress.
C
Nothing in the Senate Report supports the Court's intimation
that women must be excluded from registration because combat
eligibility is a prerequisite for all the positions that would need
to be filled in the event of a draft. The Senate Report concluded
only that "[i]f mobilization were to be ordered in a wartime
scenario, the
primary manpower need would be for combat
replacements." S.Rep. No. 96-826, p. 160 (1980) (emphasis added).
This conclusion was in keeping with the testimony presented at the
congressional hearings. The Department of Defense indicated that,
in the event of a mobilization requiring reinstitution of the
draft, the primary manpower requirement would be for combat troops
and support personnel who can readily be deployed into combat.
See 1980 Senate Hearings, at 1395 (Principal
Page 453 U. S. 98
Deputy Assistant Secretary of the Army Clark), 1390 (Lt. Gen.
Yerks). But the Department indicated that conscripts would also be
needed to staff a variety of support positions having no
prerequisite of combat eligibility, and which therefore could be
filled by women. Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics) Pirie explained:
"Not only will we need to expand combat arms, and as I said,
that is the most pressing need, but we also will need to expand the
support establishment at the same time to allow the combat arms to
carry out their function successfully. The support establishment
now uses women very effectively, and, in wartime, I think the same
would be true."
Registration of Women: Hearing on H.R. 6569 before the
Subcommittee on Military Personnel of the House Committee on Armed
Services, 96th Cong., 2d Sess., 17 (1980) (1980 House Hearings). In
testifying about the Defense Department's reasons for concluding
that women should be included in registration plans, Pirie
stated:
"It is in the interest of national security that, in an
emergency requiring the conscription for military service of the
Nation's youth, the best qualified people for a wide variety of
tasks in our Armed Forces be available. The performance of women in
our Armed Forces today strongly supports the conclusion that many
of the best qualified people for some military jobs in the 18-26
age category will be women."
Id. at 7.
See 1980 Senate Hearings, at 171
(Secretary of the Army Alexander), 182 (Secretary of the Navy
Claytor). [
Footnote 2/13] The
Defense
Page 453 U. S. 99
Department also concluded that there are no military reasons
that would justify excluding women from registration. The
Department's position was described to Congress in these terms:
"Our conclusion is that there are good reasons for registering
[women]. Our conclusion is
even more strongly that there are
not good reasons for refusing to register them."
Id. at 1667-1668 (Principal Deputy Assistant Secretary
of Defense Danzig) (emphasis added). All four Service Chiefs agreed
that there are no military reasons for refusing to register women,
and uniformly advocated requiring registration of women. The
military's position on the issue was summarized by then Army Chief
of Staff General Rogers:
"[W]omen should be required to register for the reason that
[Marine Corps Commandant] General Wilson mentioned, which is in
order for us to have an inventory of what the available strength is
within the military qualified pool in this country."
Selective Service Hearings, at 10;
see id. at 10-11
(Adm. Hayward, Chief of Naval Operations; Gen. Allen, Air Force
Chief of Staff; Gen. Wilson, Commandant, Marine Corps).
Page 453 U. S. 100
Against this background, the testimony at the congressional
hearings focused on projections of manpower needs in the event of
an emergency requiring reinstitution of the draft, and, in
particular, on the role of women in such a draft. To make the
discussion concrete, the testimony examined a draft scenario
dealing with personnel requirements during the first six months of
mobilization in response to a major war in Europe. The Defense
Department indicated three constraints on the maximum number of
women the Armed Services could use in the event of such a
mobilization:
"(1) legislative prohibitions against the use of women in
certain military positions, (2) the policy to reserve certain
assignments, such as ground combat roles, for men only, and (3) the
need to reserve a substantial number of noncombat positions for men
in order to provide a pool of ready replacements for ground combat
positions."
1980 House Hearings at 6 (Assistant Secretary Pirie). After
allowing for these constraints, the Defense Department reached the
following conclusion about the number of female draftees that could
be absorbed:
"If we had a mobilization, our present best projection is that
we could use women in some 80,000 of the jobs that we would be
inducting 650,000 people for. The reason for that is because some
80,000 of those jobs, indeed, more than 80,000 of those jobs, are
support related and not combat related."
"We think women could fill those jobs quite well."
1980 Senate Hearings, at 1688 (Principal Deputy Assistant
Secretary of Defense Danzig).
See id. at 1661, 1665, 1828;
1980 House Hearings, at 6, 16-17 (Assistant Secretary of Defense
Pirie). [
Footnote 2/14] Finally,
the Department
Page 453 U. S. 101
of Defense acknowledged that amending the MSSA to authorize
registration and induction of women did not necessarily mean that
women would be drafted in the same numbers as men. Assistant
Secretary Pirie explained:
"If women were subject to the draft, the Department of Defense
would determine the maximum number of women that could be used in
the Armed Forces, subject to existing constraints and the needs of
the Military Services to provide close combat fillers and
replacements quickly. We estimate that this might require at least
80,000 additional women over the first six months. If there were
not enough women volunteers, a separate draft call for women would
be issued."
Id. at 6.
See 1980 Senate Hearings at 1661
(Principal Deputy Assistant Secretary of Defense Danzig).
This review of the findings contained in the Senate Report and
the testimony presented at the congressional hearings demonstrates
that there is no basis for the Court's representation that women
are ineligible for all the positions that would need to be filled
in the event of a draft. Testimony about personnel requirements in
the event of a draft established that women could fill at least
80,000 of the 650,000 positions for which conscripts would be
inducted. Thus, with respect to these 80,000 or more positions, the
statutes and policies barring women from combat do not provide a
reason for distinguishing between male and female potential
conscripts; the two groups are, in the majority's parlance,
"similarly situated." As such, the combat restrictions cannot by
themselves supply the constitutionally required justification for
the MSSA's gender-based classification. Since the classification
precludes women from being drafted to fill positions for which they
would be qualified and useful, the Government
Page 453 U. S. 102
must demonstrate that excluding women from those positions is
substantially related to the achievement of an important
governmental objective.
III
The Government argues, however, that the "consistent testimony
before Congress was to the effect that there is
no military
need to draft women." Brief for Appellant 31 (emphasis in
original). And the Government points to a statement in the Senate
Report that
"[b]oth the civilian and military leadership agreed that there
was no military need to draft women. . . The argument for
registration and induction of women . . . is not based on military
necessity, but on considerations of equity."
S.Rep. No. 96-826, p. 158 (1980). In accepting the Government's
contention, the Court asserts that the President's decision to seek
authority to register women was based on "equity," and concludes
that
"Congress was certainly entitled, in the exercise of its
constitutional powers to raise and regulate armies and navies, to
focus on the question of military need, rather than 'equity.'"
Ante at
453 U. S. 80. In
my view, a more careful examination of the concepts of "equity" and
"military need" is required.
As previously noted, the Defense Department's recommendation
that women be included in registration plans was based on its
conclusion that drafting a limited number of women is consistent
with, and could contribute to, military effectiveness.
See
supra at
453 U. S.
97-102. It was against this background that the military
experts concluded that "equity" favored registration of women.
Assistant Secretary Pirie explained:
"Since women have proven that they can serve successfully as
volunteers in the Armed Forces, equity suggests that they be liable
to serve as draftees if conscription is reinstated."
1980 House Hearings at 7. By "considerations of equity," the
military experts acknowledged that female conscripts can perform as
well as male conscripts
Page 453 U. S. 103
in certain positions, and that there is therefore no reason why
one group should be totally excluded from registration and a draft.
Thus, what the majority so blithely dismisses as "equity" is
nothing less than the Fifth Amendment's guarantee of equal
protection of the laws, which "requires that Congress treat
similarly situated persons similarly,"
ante at
453 U. S. 79.
Moreover, whether Congress could subsume this constitutional
requirement to "military need" in part depends on precisely what
the Senate Report meant by "military need."
The Report stated that "[b]oth the civilian and military
leadership agreed that there was no military need to draft women."
S.Rep. No. 96-826,
supra, at 158. An examination of what
the "civilian and military leadership" meant by "military need"
should therefore provide an insight into the Report's use of the
term. Several witnesses testified that, because personnel
requirements in the event of a mobilization could be met by
drafting men, including women in draft plans is not a military
necessity. For example, Assistant Secretary of Defense Pirie
stated:
"It is doubtful that a female draft can be justified on the
argument that wartime personnel requirements cannot be met without
them. The pool of draft eligible men . . . is sufficiently large to
meet projected wartime requirements."
1980 House Hearings, at 6.
See 1980 Senate Hearings at
1665 (Principal Deputy Assistant Secretary of Defense Danzig).
Similarly, Army Chief of Staff General Meyer testified:
"I do not believe there is a need to draft women in peacetime.
In wartime, because there are such large numbers of young men
available, approximately 2 million males in each year group of the
draft age population, there would be no military necessity to draft
females except, possibly, doctors, and other health
professionals
Page 453 U. S. 104
if there are insufficient volunteers from people with those
skills."
Id. at 749. To be sure, there is no "military need" to
draft women in the sense that a war could be waged without their
participation. [
Footnote 2/15]
This fact is, however, irrelevant to resolving the constitutional
issue. [
Footnote 2/16] As
previously noted,
see supra at
453 U. S. 94-95,
it is not appellees' burden to prove that registration of women
substantially furthers the objectives of the MSSA. [
Footnote 2/17] Rather,
Page 453 U. S. 105
because eligibility for combat is not a requirement for some of
the positions to be filled in the event of a draft, it is incumbent
on the Government to show that excluding women from a draft to fill
those positions substantially furthers an important governmental
objective.
It may be, however, that the Senate Report's allusion to
"military need" is meant to convey Congress' expectation that women
volunteers will make it unnecessary to draft any women. The
majority apparently accepts this meaning when it states:
"Congress also concluded that, whatever the need for women for
noncombat roles during mobilization, whether 80,000 or less, it
could be met by volunteers."
Ante at
453 U. S. 81.
But since the purpose of registration is to protect against
unanticipated shortages of volunteers, it is difficult to see how
excluding women from registration can be justified by conjectures
about the expected number of female volunteers. [
Footnote 2/18] I fail to see why the exclusion of
a pool of persons who would be conscripted only
if needed
can be justified by reference to the current supply of volunteers.
In any event, the Defense Department's best estimate is that, in
the event of a mobilization requiring reinstitution of the draft,
there will not be
Page 453 U. S. 106
enough women volunteers to fill the positions for which women
would be eligible. The Department told Congress:
"If we had a mobilization, our present best projection is that
we could use women in some 80,000 of the jobs we would be
inducting 650,000 people for."
1980 Senate Hearings, at 1688 (Principal Deputy Assistant
Secretary of Defense Danzig) (emphasis added). [
Footnote 2/19] Thus, however the "military need"
statement in the Senate Report is understood, it does not provide
the constitutionally required justification for the total exclusion
of women from registration and draft plans.
IV
Recognizing the need to go beyond the "military need" argument,
the Court asserts that
"Congress determined that staffing noncombat positions with
women during a mobilization would be positively detrimental to the
important goal of military flexibility."
Ante at
453 U. S. 81-82.
None would deny that preserving "military flexibility" is an
important governmental interest. But to justify the exclusion of
women from registration and the draft on this ground, there must be
a further showing that staffing even a limited number of noncombat
positions with women would impede military flexibility. I find
nothing in the Senate Report to provide any basis
Page 453 U. S. 107
for the Court's representation that Congress believed this to be
the case.
The Senate Report concluded that "military reasons . . .
preclude
very large numbers of women from serving." S.Rep.
No. 9826, p. 158 (1980) (emphasis added). The Report went on to
explain:
"Military flexibility requires that a commander be able to move
units or ships quickly. Units or ships not located at the front or
not previously scheduled for the front nevertheless must be able to
move into action if necessary. In peace and war, significant
rotation of personnel is necessary. We should not divide the
military into two groups -- one in permanent combat and one in
permanent support. Large numbers of non-combat positions must be
available to which combat troops can return for duty before being
redeployed."
Ibid. This discussion confirms the Report's conclusion
that drafting "
very large numbers of women" would hinder
military flexibility. The discussion does not, however, address the
different question whether drafting only a
limited number
of women would similarly impede military flexibility. The testimony
on this issue at the congressional hearings was that drafting a
limited number of women is quite compatible with the military's
need for flexibility. In concluding that the Armed Services could
usefully employ at least 80,000 women conscripts out of a total of
650,000 draftees that would be needed in the event of a major
European war, the Defense Department took into account both the
need for rotation of combat personnel and the possibility that some
support personnel might have to be sent into combat. As Assistant
Secretary Pirie testified:
"If women were subject to the draft, the Department of Defense
would determine the maximum number of women that could be used in
the Armed Forces,
subject to existing constraints and the needs
of the Military
Page 453 U. S. 108
Services to provide close combat fillers and replacements
quickly. We estimate that this might require at least 80,000
additional women over the first 6 months."
1980 House Hearings, at 6 (emphasis added).
See App.
278 (deposition of Principal Deputy Assistant Secretary of Defense
Danzig). [
Footnote 2/20]
Similarly, there is no reason why induction of a limited number
of female draftees should any more divide the military into
"permanent combat" and "permanent support" groups than is presently
the case with the All-Volunteer Armed Forces. The combat
restrictions that would prevent a female draftee from serving in a
combat or combat rotation position also apply to the
150,000-250,000 women volunteers in the Armed Services. If the
presence of increasing but controlled numbers of female volunteers
has not unacceptably "divide[d] the military into two groups," it
is difficult to see how the induction of a similarly limited
additional number of women could accomplish this result. In these
circumstances, I cannot agree with the Court's attempt to
"interpret" the Senate Report's conclusion that drafting very large
numbers of women would impair military flexibility, as proof that
Congress reached the entirely different conclusion that drafting a
limited number of women would adversely affect military
flexibility.
Page 453 U. S. 109
V
The Senate Report itself recognized that the "military
flexibility" objective speaks only to the question whether "very
large numbers" of women should be drafted. For the Report went on
to state:
"It has been suggested that all women be registered, but only a
handful actually be inducted in an emergency. The committee finds
this a confused and ultimately unsatisfactory solution."
S.Rep. No. 96-826, p. 158 (1980). The Report found the proposal
"confused" and "unsatisfactory" for two reasons.
"First, the President's proposal [to require registration of
women] does not include any change in section 5(a)(1) of the
[MSSA], which requires that the draft be conducted impartially
among those eligible. Administration witnesses admitted that the
current language of the law probably precludes induction of women
and men on any but a random basis, which should produce roughly
equal numbers of men and women. Second, it is conceivable that the
courts, faced with a congressional decision to
register
men and women equally because of equity considerations, will find
insufficient justification for then
inducting only a token
number of women into the Services in an emergency."
Id. at 158-159 (emphasis in original). The Report thus
assumed that, if women are registered, any subsequent draft would
require simultaneous induction of equal numbers of male and female
conscripts. The Report concluded that such a draft would be
unacceptable:
"It would create monumental strains on the training system,
would clog the personnel administration and support systems
needlessly, and would impede our defense preparations at a time of
great national need."
"Other administrative problems such as housing and
Page 453 U. S. 110
different treatment with regard to dependency, hardship and
physical standards would also exist."
Id. at 159. [
Footnote
2/21]
See also S.Rep. No. 96-226, p. 9 (1979). Relying
on these statements, the majority asserts that, even
"assuming that a small number of women could be drafted for
noncombat roles, Congress simply did not consider it worth the
added burdens of including women in draft and registration
plans."
Ante at
453 U. S. 81. In
actual fact, the conclusion the Senate Report reached is
significantly different from the one the Court seeks to attribute
to it.
The specific finding by the Senate Report was that,
"[i]f the law required women to be drafted in
equal
numbers with men, mobilization would be severely impaired
because of strains on training facilities and administrative
systems."
S.Rep. No. 9826,
supra, at 160 (emphasis added). There
was, however, no suggestion at the congressional hearings that
simultaneous induction of
equal numbers of males and
female conscripts was either necessary or desirable. The Defense
Department recommended that women be included in registration and
draft plans, with the number of female draftees and the timing of
their induction to be determined by the military's personnel
requirements.
See supra at
453 U. S.
100-101. [
Footnote
2/22] In endorsing this plan, the Department gave no indication
that such a draft would place any strains on training and
administrative facilities. Moreover. the Director of the Selective
Service System testified that a registration and induction
Page 453 U. S. 111
process including both males and females would present no
administrative problems.
See 1980 Senate Hearings at 1679
(Bernard Rostker); App. 247-248 (deposition of Bernard
Rostker),
The Senate Report simply failed to consider the possibility that
a limited number of women could be drafted because of its
conclusion that § 5(a)(1) of the MSSA does not authorize drafting
different numbers of men and women and its speculation on judicial
reaction to a decision to register women. But since Congress was
free to amend § 5(a)(1), and indeed would have to undertake new
legislation to authorize any draft, the matter cannot end there.
Furthermore, the Senate Report's speculation that a statute
authorizing differential induction of male and female draftees
would be vulnerable to constitutional challenge is unfounded. The
unchallenged restrictions on the assignment of women to combat, the
need to preserve military flexibility, and the other factors
discussed in the Senate Report provide more than ample grounds for
concluding that the discriminatory means employed by such a statute
would be substantially related to the achievement of important
governmental objectives. Since Congress could have amended §
5(a)(1) to authorize differential induction of men and women based
on the military's personnel requirements, the Senate Report's
discussion about "added burdens" that would result from drafting
equal numbers of male and female draftees provides no basis for
concluding that the total exclusion of women from registration and
draft plans is substantially related to the achievement of
important governmental objectives.
In sum, neither the Senate Report itself nor the testimony
presented at the congressional hearings provides any support for
the conclusion the Court seeks to attribute to the Report -- that
drafting a limited number of women, with the number and the timing
of their induction and training determined by the military's
personnel requirements, would burden training and administrative
facilities.
Page 453 U. S. 112
VI
After reviewing the discussion and findings contained in the
Senate Report, the most I am able to say of the Report is that it
demonstrates that drafting
very large numbers of women
would frustrate the achievement of a number of important
governmental objectives that relate to the ultimate goal of
maintaining "an adequate armed strength . . . to insure the
security of this Nation," 50 U.S.C.App. § 451(b). Or to put it
another way, the Senate Report establishes that induction of a
large number of men, but only a limited number of women, as
determined by the military's personnel requirements, would be
substantially related to important governmental interests. But the
discussion and findings in the Senate Report do not enable the
Government to carry its burden of demonstrating that
completely excluding women from the draft by excluding
them from registration substantially furthers important
governmental objectives.
In concluding that the Government has carried its burden in this
case, the Court adopts "an appropriately deferential examination of
Congress' evaluation of the evidence,"
ante at
453 U. S. 83
(emphasis in original). The majority then proceeds to supplement
Congress' actual findings with those the Court apparently believes
Congress could (and should) have made. Beyond that, the Court
substitutes hollow shibboleths about "deference to legislative
decisions" for constitutional analysis. It is as if the majority
has lost sight of the fact that "it is the responsibility of this
Court to act as the ultimate interpreter of the Constitution."
Powell v. McCormack, 395 U.S. at
395 U. S. 549.
See Baker v. Carr, 369 U.S. at
369 U. S. 211.
Congressional enactments in the area of military affairs must, like
all other laws, be
judged by the standards of the
Constitution. For the Constitution is the supreme law of the land,
and
all legislation must conform to the principles it lays
down. As the Court has pointed out,
"the phrase 'war power' cannot be invoked as a talismanic
incantation to support any exercise of
Page 453 U. S. 113
congressional power which can be brought within its ambit."
United States v. Robel, 389 U.S. at
389 U. S.
263-264.
Furthermore,
"[w]hen it appears that an Act of Congress conflicts with [a
constitutional] provisio[n], we have no choice but to enforce the
paramount commands of the Constitution. We are sworn to do no less.
We cannot push back the limits of the Constitution merely to
accommodate challenged legislation."
Trop v. Dulles, 356 U. S. 86,
356 U. S. 104
(1958) (plurality opinion). In some 106 instances since this Court
was established, it has determined that congressional action
exceeded the bounds of the Constitution. I believe the same is true
of this statute. In an attempt to avoid its constitutional
obligation, the Court today "pushes back the limits of the
Constitution" to accommodate an Act of Congress.
I would affirm the judgment of the District Court.
[
Footnote 2/1]
Given the Court's lengthy discourse on the background to this
litigation, it is interesting that the Court chooses to bury its
sole reference to this fact in a footnote.
See ante at
453 U. S. 60, n.
1.
[
Footnote 2/2]
By statute, female members of the Air Force and the Navy may not
be assigned to vessels or aircraft engaged in combat missions.
See 10 U.S.C. § 6015 (1976 ed., Supp III), § 8549.
Although there are no statutory restrictions on the assignment of
women to combat in the Army and the Marine Corps, both services
have established policies that preclude such assignment.
Appellees do not concede the constitutional validity of these
restrictions on women in combat, but they have taken the position
that their validity is irrelevant for purposes of this case.
[
Footnote 2/3]
I join the Court,
see ante at
453 U. S. 69, in
rejecting the Solicitor General's suggestion that the gender-based
classification employed by the MSSA should be scrutinized under the
"rational relationship" test used in reviewing challenges to
certain types of social and economic legislation.
See, e.g.,
Schweiker v. Wilson, 450 U. S. 221
(1981);
United States Railroad Retirement Bd. v. Fritz,
449 U. S. 166
(1980).
[
Footnote 2/4]
Consequently, it is of no moment that the constitutional
challenge in this case is pressed by men who claim that the MSSA's
gender classification discriminates against them.
[
Footnote 2/5]
The Constitution grants Congress the power "To raise and support
Armies," "To Provide and maintain a Navy," and "To make Rules for
the Government and Regulation of the land and naval Forces."
U.S.Const., Art. I, § 8, cls. 12-14.
[
Footnote 2/6]
Although the Fifth Amendment contains no Equal Protection
Clause, this Court has held that "the Fifth Amendment's Due Process
Clause prohibits the Federal Government from engaging in
discrimination that is
so unjustifiable as to be violative of
due process.'" Schlesinger v. Ballard, 419 U.
S. 498, 419 U. S. 500,
n. 3 (1975), quoting Bolling v. Sharpe, 347 U.
S. 497, 347 U. S. 499
(1954)
[
Footnote 2/7]
With the repeal in 1967 of a statute limiting the number of
female members of the Armed Forces to 2% of total enlisted
strength, the number of women in the military has risen steadily
both in absolute terms and as a percentage of total active military
personnel. The percentage has risen from 0.78% in 1966, to over 5%
in 1976, and is expected to rise to 12% by 1985.
See U.S.
Dept. of Defense, Use of Women in the Military 5-6 (2d ed.1978),
reprinted at App. 98, 111-113; M. Binkin & S. Bach, Women and
the Military 13-21 (1977).
[
Footnote 2/8]
In summarizing the testimony presented at the congressional
hearings, Senator Cohen stated:
"[B]asically, the evidence has come before this committee that
participation of women in the All-Volunteer Force has worked well,
has been praised by every military officer who has testified before
the committee, and that the jobs are being performed with the same,
if not, in some cases, with superior skill."
1980 Senate Hearings, at 1678.
[
Footnote 2/9]
As noted,
see 453 U.S.
57fn2/2|>n. 2,
supra, appellees elected not to
challenge the constitutionality of the combat restrictions.
[
Footnote 2/10]
I would have thought the logical conclusion from this reasoning
is that there is, in fact, no discrimination against women, in
which case one must wonder why the Court feels compelled to pledge
its purported fealty to the
Craig v. Boren test.
[
Footnote 2/11]
Alternatively, the Government could employ a classification that
is related to the statutory objective but is not based on gender,
for example, combat eligibility. Under the current scheme, large
subgroups of the male population who are ineligible for combat
because of physical handicaps or conscientious objector status are
nonetheless required to register.
[
Footnote 2/12]
The Court quotes Senator Warner's comment: "
I
equate registration with the draft,'"
ante at
453 U. S. 75.
The whole of Senator Warner's statement merits quotation, because
it explains why Congress refused to acknowledge the distinction
between registration and the draft. Senator Warner stated:
"Frankly, I equate registration with the draft because there is
no way you can establish a registration law on a coequal basis and
then turn right around and establish a draft law on a nonequal
basis. I think the court would knock that down right away."
1980 Senate Hearings at 1197.
[
Footnote 2/13]
Pirie explained the reasoning behind the Defense Department's
conclusion in these terms:
"Large numbers of military women work in occupations such as
electronics, communications, navigation, radar repair, jet engine
mechanics, drafting, surveying, ordnance, transportation, and
meteorology, and do so very effectively, as has been shown by
numerous DOD studies and tests. The work women in the Armed Forces
do today is essential to the readiness and capability of the
forces. In case of war that would still be true, and the number of
women doing similar work would inevitably expand beyond our
peacetime number of 250,000."
"Women have traditionally held the vast majority of jobs in
fields such as administrative/clerical and health care/medical. An
advantage of registration for women is that a pool of trained
personnel in these traditionally female jobs would exist in the
event that sufficient volunteers were not available. It would make
far greater sense to include women in a draft call, and thereby
gain many of these skills, than to draft only males who would not
only require training in these fields but would be drafted for
employment in jobs traditionally held by females. A further
advantage would be to release males currently holding noncombatant
jobs for reassignment to combat jobs."
1980 House Hearings at 6.
[
Footnote 2/14]
The Defense Department arrived at this number after it
"surveyed the military services, and asked them how many women
they could use [in the event of a mobilization of] 650,000, and
received answers suggesting that they could use about 80,000."
1980 Senate Hearings at 1665 (Principal Deputy Assistant
Secretary of Defense Danzig).
[
Footnote 2/15]
A colloquy between Senator Jepsen and Principal Deputy Assistant
Secretary of Defense Danzig reveals that some Members of Congress
understood "military need" in this sense.
"Mr. DANZIG. . . ."
"We surveyed the military services, and asked them how many
women they could use among those 650,000, and received answers
suggesting that they could use 80,000."
"Let me indicate when I say they could use[,] I do not mean to
imply that they would have to use women. Our Department of Defense
view is that women would be useful in a mobilization scenario. If
women were not available, I do not think the republic would
crumble. Men could be used instead."
"Senator JEPSEN. So there is no explicit military requirement
involved?"
"
* * * *"
"Mr. DANZIG. My problem, Senator, and I don't mean to be
semantic about it, is with the use of the words, 'explicit
requirement.' If you said to me, for example, does the military
require people with brown eyes to serve, I would tell you no,
because people with blue eyes,
et cetera, could do the
job."
"On the other hand, I wouldn't deny that they could do the job
and that we would find them useful."
1980 Senate Hearings, at 1665;
see id. at
1853-1856.
[
Footnote 2/16]
Deputy Assistant Attorney General Simms explained as much to
Congress in his testimony at the hearings. He stated:
"[T]he question of military necessity for drafting women is
irrelevant to the constitutional issue, which is whether or not
there is sufficient justification by whatever test the courts may
apply for not registering women."
Id. at 1667.
[
Footnote 2/17]
If we were to assign appellees this burden, then all of the
Court's prior "mid-level" scrutiny equal protection decisions would
be drawn into question. For the Court would be announcing a new
approach under which the party challenging a gender-based
classification has the burden of showing that elimination of the
classification substantially furthers an important governmental
interest.
[
Footnote 2/18]
As Assistant Secretary of Defense Pirie explained:
"Perhaps sufficient women volunteers would come forward to meet
this need, perhaps not. Having our young women register in advance
would put us in a position to call women if they do not volunteer
in sufficient numbers,"
quoted at 126 Cong.Rec. 13885-13886 (1980).
See 1980
Senate Hearings at 1828 (Principal Deputy Assistant Secretary of
Defense Danzig).
Past wartime recruitment experience does not bear out the
Court's sanguine view. With the advent of the Korean War, an
unsuccessful effort was made to recruit some 100,000 women to meet
the rapidly expanding manpower requirements.
See Use of
Women in the Military.
supra, 453 U.S.
57fn2/7|>n. 7, at 5, App. 111.
[
Footnote 2/19]
A colloquy between Representative Hillis and Assistant Secretary
of Defense Pirie at the House Hearings makes clear that the 80,000
number is in addition to the number of women serving in the
All-Volunteer Armed Forces.
"Mr. PIRIE. Mr. Hillis, we estimate that we would need 650,000
individuals to be inducted over the first six months."
"Mr. HILLIS. How many of those would be women?"
"Mr. PIRIE. At least 80,000 of these individuals would be women,
Mr. Hillis."
"Mr. HILLIS. That is, even if we had the 250,000 [women in
active service expected by 1985], you are talking about another
80,000, which projects into about 330,000."
"Mr. PIRIE. Yes, sir."
1980 House Hearings at 22.
[
Footnote 2/20]
Senator Warner questioned the Service Chiefs about the "impact
on your service as a consequence of a draft,
which would be
based on a total provision of equality between male and
female." Selective Service Hearings, at 15 (emphasis added).
Two of the Service Chiefs answered Senator Warner's question about
the effect of a draft of equal numbers of men and women. Their
answers merit quotation.
"General ALLEN [Air Force]. It would not have any unfavorable
effect on the Air Force. We would have no objection to such a
draft."
Ibid.
"General WILSON [Marine Corps]. . . ."
"
* * * *"
". . . [W]e would be perfectly happy to have women drafted. That
is up to the 5 percent goal which I believe we can handle in the
Marine Corps."
Ibid.
[
Footnote 2/21]
The Report further explained:
"If the Congress were to mandate equal registration of men and
women, therefore, we might well be faced with a situation in which
the combat replacements needed in the first 60 days -- say 100,000
men -- would have to be accompanied by 100,000 women. Faced with
this hypothetical, the military witnesses stated that such a
situation would be intolerable."
S.Rep. No. 96-826 at 159.
[
Footnote 2/22]
As stated in the Senate Report
"Selective Service Plans provide[d] for drafting only men during
the first 60 days, and only a small number of women would be
included in the total drafted for the first 180 day."
Id. at 158.