Gender-Selective Service: The History and Future of Women and the Draft

Abstract

On December 1, 2016, President Obama became the first President since Jimmy Carter (and the second sitting President ever) to publically support requiring women to register for the draft: “As old barriers for military service are being removed, the administration supports — as a logical next step — women registering for the Selective Service.” Of course, that support was largely symbolic; at the time his administration announced this support, President Obama had fifty days left in office, and the 2016 Senate provision requiring women to register for selective service had already died in the House. To be sure, the debate feels merely symbolic altogether. The United States has not drafted a man into service since 1972, and the military has been entirely volunteer since the Vietnam War. Comprising only those enlisted by their own volition, the U.S. Military remains the strongest in the world. Even so, the U.S. Government has, at least for the time being, decided to keep selective service in its back pocket, should the situation arise. But the debate itself is important to anchor the discussion surrounding the role of women in the U.S. armed services, particularly following the 2016 election. While Secretary of Defense Panetta officially lifted the ban on women in combat in 2013, the GOP’s 2016 official platform sought “to exempt women from ‘direct ground combat units and infantry battalions.’” Republicans in Congress kept step with the spirit of that policy; the Senate passed National Defense Authorization Act (“NDAA”) included a provision for an all-gender draft, but the provision was removed by the time the bill made it to the floor of the Republican-controlled House. At many crucial points in our nation’s history, “in fundamental issues of social fairness, the military has led the country in doing what is right.” But not so with the role of women in the military. This essay explores the progress of women in uniform compared to their civilian counterparts and notes that the strides women in the military made — while incredible, and rightfully lauded — were met with greater resistance. As the Supreme Court was recognizing the need for increased scrutiny in gender discrimination cases, women in uniform were being denied access to most rates and billets in their respective service. Just as women finally seemed to be making headway in gaining leadership positions, the United States sought to increase the size of the military and prepared for any number of real world scenarios that could escalate to World War III, but the executive and legislative branches disagreed on the best way to do so. President Carter reinstated the draft with a provision to include women, but Congress elected to authorize the funds required to register only men. It wasn’t just that Rostker v. Goldberg ruled that women could not be required to register for the draft. It was the Court’s unwavering deference to the findings of Congress despite the established intermediate scrutiny standard. In the years that followed, women in the military had to overcome that stigma, but with a little help from the Virginia Military Institute, decades of slow, silent soldiering on culminated in 2013, when Defense Secretary Carter ended the combat exclusionary rule for women and opened all military roles to women who qualify. The Supreme Court may hear challenges in the coming terms regarding gender neutral draft registration, now with the architect of intermediate scrutiny on the other side of the bench. This Essay argues that requiring women to register for the draft is not only the logical next step towards gender parity in the military, it is absolutely required to remain faithful to the Supreme Court’s gender discrimination precedent.