Rostker v. Goldberg

453 U.S. 57, 101 S. Ct. 2646 (1981)



The Supreme Court consistently recognizes Congress's broad constitutional power to raise and regulate armies and navies. 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. Not only is the scope of Congress's constitutional power in this area broad, but the lack of competence on the part of the courts is marked. It 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 federal legislative and executive branches.


The Military Selective Service Act (Act) authorized 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.


Did the Congress act well within its constitutional authority when it authorized the registration of men, and not women, under the MSSA?




The Court held that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the MSSA. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. The existence of the combat restrictions clearly indicated the basis for Congress's decision to exempt women from registration because the purpose of registration was to prepare for a draft of combat troops. Men and women, because of the combat restrictions on women, were not similarly situated for purposes of a draft or registration for a draft. Congress's decision to authorize the registration of only men, therefore, did not violate the Due Process Clause and the gender classification was not invidious. The exemption of women from registration was not only sufficiently, but was also closely, related to Congress's purpose in authorizing registration.

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