U.S. Supreme Court
ROSTKER v. GOLDBERG, 453 U.S. 57 (1981)
453 U.S. 57
ROSTKER, DIRECTOR OF SELECTIVE SERVICE v. GOLDBERG ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 80-251.
Argued March 24, 1981.
Decided June 25, 1981.
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.
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. 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
- cannot be ignored in considering the constitutionality of its studied choice of one alternative in preference to the other. Pp. 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. 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. 83, and MARSHALL, J., post, p. 86, filed dissenting opinions, in which BRENNAN, J., joined. Solicitor General McCree argued the cause for appellant. With him on the briefs were Assistant Attorney General Daniel, Acting Assistant Attorney General Martin, Deputy Solicitor General Claiborne, Barbara E. Etkind, William Kanter, and Mark H. Gallant. Donald L. Weinberg argued the cause for appellees. With [453 U.S. 57, 59] him on the brief were Harold E. Kohn, Stuart H. Savett, Isabelle Katz Pinzler, Bruce J. Ennis, and Laurence H. Tribe. * [ Footnote * ] Briefs of amici curiae urging reversal were filed by Dennis Rapps and A. David Stern for the Orthodox Jewish Coalition on the Draft; and by Nathan Lewin for Stacy Acker et al. Briefs of amici curiae urging affirmance were filed by Daniel Marcus for Congressman Robert W. Kastenmeier et al.; by Paul Kenney for Men's Rights, Inc.; by Barbara A. Brown, Thomas J. Hart, Phyllis N. Segal, and Judith I. Avner for the National Organization for Women; and by Judith L. Lichtman for the Women's Equity Action League Educational and Legal Defense Fund et al. Daniel J. Popeo and Paul D. Kamenar filed a brief for Congressman Lawrence P. McDonald et al. as amici curiae. 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.
ICongress 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 [453 U.S. 57, 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. 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 [453 U.S. 57, 61] for Selective Service Reform - A Report to Congress Prepared Pursuant to Pub. L. 96-107, 96th Cong., 2d Sess., 20-23 (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. 96-282, 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 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. 2 A three-judge District [453 U.S. 57, 62] Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us. 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. 4 [453 U.S. 57, 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. [453 U.S. 57, 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. 1306 . Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U.S. 1009 .
IIWhenever 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," Blodgett v. Holden, 275 U.S. 142, 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, 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, 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 [453 U.S. 57, 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.
- "[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,
- subject always to civilian control of the Legislative and Executive Branches."
- "[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 508.
- "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.' [U.S. ex rel.] Toth
- v. Quarles,
- . See also Orloff v. Willoughby,
- . 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."
- "[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,
IIIThis 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. 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. 9 As noted earlier, Congress in [453 U.S. 57, 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. 96-789, 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. 96-226, pp. 8-9 (1979), and adopted specific findings supporting its action. See S. Rep. No. 96-826, 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. 96-895, p. 100 (1980). 10 [453 U.S. 57, 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, 320 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (STEVENS. J., concurring in judgment)). In Michael M., 450 U.S., at 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, 87 (1979) ("The gender qualification . . . escaped virtually unnoticed in the hearings and floor debates"). 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 [453 U.S. 57, 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, 553 (1944), see United States v. Nugent, 346 U.S. 1, 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. 96-826, 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. 96-826, 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. [453 U.S. 57, 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. 2-3, 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 [453 U.S. 57, 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. 96-826, supra, at 157.
- "In the Committee's view, 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. . . . 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.
- "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).
- ". . . [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.
Footnotes[ 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 [453 U.S. 57, 62] 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, 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, 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 [453 U.S. 57, 63] 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, 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 Sub-committee 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. 8-9 (1979). [ Footnote 9 ] The amendment provided that no funds "shall be made available for [453 U.S. 57, 73] 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 stopgap 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 19-20. 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 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 peace-time") (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 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 considers the subject of the utility of women under contingency conditions."
AThe background to this litigation is set out in the opinion of the Court, ante, at 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. 1 With the advent of the All-Volunteer Armed Forces, the MSSA was specifically amended to preclude conscription as of July 1, 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 [453 U.S. 57, 87] a legislative amendment. See S. Rep. No. 96-826, 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. 2 It is with this understanding that I turn to the task at hand.
BBy 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). 3Under 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, 459 , 459-460 (1981); Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142, 150 (1980); Califano v. Westcott, 443 U.S. 76, 84 (1979); Orr v. Orr, 440 U.S. 268, 278(1979); Craig v. Boren, supra, at 197. This test applies whether the [453 U.S. 57, 88] classification discriminates against males or females. Caban v. Mohammed, 441 U.S. 380, 391 (1979); Orr v. Orr, supra, at 278-279; Craig v. Boren, supra, at 204. 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 151; Caban v. Mohammed, supra, at 393; Craig v. Boren, supra, at 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, 273 (1979).
CThe 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 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. 5 The majority also notes,[453 U.S. 57, 89] ante, at 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, 102(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,
- -264 (1967), quoting Home Bldg. & Loan Assn. v. Blaisdell,
AThe 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, 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 [453 U.S. 57, 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 13-23 (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).
BAccording 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.
- "Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of
- 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."
CNothing 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 [453 U.S. 57, 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).
- "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.
- "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).
- "(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).
- "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).
- "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.
IIIThe 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 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 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.
- "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.
- "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
- if there are insufficient volunteers from people with those skills." Id., at 749.
- "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).
IVRecognizing 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 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 non-combat positions with women would impede military flexibility. I find nothing in the Senate Report to provide any basis [453 U.S. 57, 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. 96-826, 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.
- "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 6 months." 1980 House Hearings, at 6 (emphasis added).
VThe 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).
- "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).
- "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
- different treatment with regard to dependency, hardship and physical standards would also exist." Id., at 159.
VIAfter 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 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 549 . See Baker v. Carr, 369 U.S., at 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 [453 U.S. 57, 113] congressional power which can be brought within its ambit." United States v. Robel, 389 U.S., at 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, 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 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 60, n. 1. [ Footnote 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 3 ] I join the Court, see ante, at 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); U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166(1980). [ Footnote 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 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 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, 500 , n. 3 (1975), quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954). [ Footnote 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 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.
- "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.
- "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.
- "[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.
- "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).
- "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.
- "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.
- "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.