Court says male only military draft is unconstitutional

Parent Cafe
61

@QuantMech –

Yes, but unlike me (and apparently @roycroftmom ) you apparently do not have a law degree.

The “penumbra” rationale was used to read a generalized right to privacy into the 4th amendment, going beyond the specific language about searches & seizure – first in contraception cases and then in Roe vs. Wade.

14th Amendment equal protection would not be a way of addressing abortion rights because an anti-abortion law could be written in neutral terms to prevent any “person” from having an abortion.

The “intermediate scrutiny” test that roycroftmom mentioned was established in the case Craig v. Boren (1976)-- which was a case involving a state law that set a different, lower drinking age for women than for men.

The 14th Amendment does not prevent the government from making distinctions among classes of people, but the distinctions need to be justified by good reasons and different types of classifications must meet different tests.

If the classification is tied to a category based on a “suspect” classification, such as race – or if it infringes on a fundamental constitutional right (example: freedom of religion), then the law must pass a “strict scrutiny” test, meaning that a compelling government interest must be shown, and the law must be narrowly tailored to meet that goal. See https://www.law.cornell.edu/wex/strict_scrutiny

Passage of the ERA would have put gender discrimination on the same level.

Instead, the Craig v. Boren case established an “intermediate” scrutiny test for gender-based distinctions – which is invoked when there is a “protected” (rather than “suspect”) class and has also been applied in some first amendment cases. In those cases, the law must further an important government interest and must do so by means that are substantially related to that interest. See https://www.law.cornell.edu/wex/intermediate_scrutiny

There is a third, lesser level of scrutiny called the “rational basis” test, which requires only a showing of a legitimate state interest, and a rational connection between the laws means and goals. https://www.law.cornell.edu/wex/rational_basis_test (This is where things got kind of messy in litigation over gay marriage – courts had a hard time figuring out where that one fit)

In the draft registration case, the district court applied the intermediate (or “heightened”) review standards.

I think legally the rationale is pretty solid and very likely to stand up, but it is only a declaratory relief action - no injunction – so this also is may be addressed by Congress one way or another in the interim. There is no downside to the government for requiring females to register – how is anyone actually harmed by registration? It’s actually the 2nd step – classification – which is the trickier issue – but classification would not take place unless a draft was actually instated.

62

@QuantMech –

Yes, but unlike me (and apparently @roycroftmom ) you do not have a law degree.

The “penumbra” rationale was used to read a generalized right to privacy into the 4th amendment, going beyond the specific language about searches & seizure – first in contraception cases and then in Roe vs. Wade.

14th Amendment equal protection would not be a way of addressing abortion rights because an anti-abortion law could be written in neutral terms to prevent any “person” from having an abortion.

The “intermediate scrutiny” test that roycroftmom mentioned was established in the case Craig v. Boren (1976)-- which was a case involving a state law that set a different, lower drinking age for women than for men.

The 14th Amendment does not prevent the government from making distinctions among classes of people, but the distinctions need to be justified by good reasons and different types of classifications must meet different tests.

If the classification is tied to a category based on a “suspect” classification, such as race – or if it infringes on a fundamental constitutional right (example: freedom of religion), then the law must pass a “strict scrutiny” test, meaning that a compelling government interest must be shown, and the law must be narrowly tailored to meet that goal. See https://www.law.cornell.edu/wex/strict_scrutiny

Passage of the ERA would have put gender discrimination on the same level.

Instead, the Craig v. Boren case established an “intermediate” scrutiny test for gender-based distinctions – which is invoked when there is a “protected” (rather than “suspect”) class and has also been applied in some first amendment cases. In those cases, the law must further an important government interest and must do so by means that are substantially related to that interest. See https://www.law.cornell.edu/wex/intermediate_scrutiny

There is a third, lesser level of scrutiny called the “rational basis” test, which requires only a showing of a legitimate state interest, and a rational connection between the laws means and goals. https://www.law.cornell.edu/wex/rational_basis_test (This is where things got kind of messy in litigation over gay marriage – courts had a hard time figuring out where that one fit)

In the draft registration case, the district court applied the intermediate (or “heightened”) review standards.

https://www.■■■■■■■■■■■■■■■■■/documents/5747780-190224-SELECTIVE-SERVICE-DECISION-Full.html

I think legally the rationale is pretty solid and very likely to stand up, but it is only a declaratory relief action - no injunction – so this also is may be addressed by Congress one way or another in the interim. There is no downside to the government for requiring females to register – how is anyone actually harmed by registration? It’s actually the 2nd step – classification – which is the trickier issue – but classification would not take place unless the draft actually takes place.

63

I’d just add that now that I think about it, there probably isn’t a particular need for draft registration simply because the government already pretty much has enough data via the social security & tax system to know how to locate the vast majority of young people of military age. So without a registration system, a military draft system could probably be implemented quite quickly using other data. It probably would take specific legislation to authorize use of the data that way – but the point is, the government already knows where our kids are, with or without a draft registration system in place. So it might just be that the entire idea of a separate system of registration is as outmoded as the idea of only drafting men has become. What info does the draft registration system produce that the government doesn’t already have simply by mining its own data?

64

Probably nothing, but it is a significant event to “register” for the draft and while it may not be data that the government needs it certainly means something to the person required to register.

65

“So without a registration system, a military draft system could probably be implemented quite quickly using other data.”

There is probably a DOD grant awarded to some tech firm to create an app for that. :wink:

66

Well, I’m not sure how much it means – certainly it seemed trivial to my son, pretty much just another box to check on the FAFSA. I’d note that my son turned 18 five months before 9/11 – so if there ever was a time that public sentiment would have supported reimplementation of the draft, that was it. But I don’t think it ever even occurred to us to worry about the draft at that time.

It didn’t seem trivial to men of my generation, given that we came of age in the midst of the Vietnam War… but now the actual threat of anyone being called up seems fairly remote.

But my point is – on the government end of things, the registration list doesn’t give them much info of use. They have a bunch of names & addresses tied to date of birth – but social security & IRS have the same info. So leaving aside whatever regulations govern the use and sharing of that info for now – what information does a draft registration system give the government that it doesn’t already have?

So I am suggesting, hypothetically, what if Congress passed a law doing away with the registration process and instead providing that in the event of a narrow set of circumstances (emergency, Congressional declaration of war, etc.) - the Selective Service would be empowered to request demographic data from IRS & SSA as needed to support a draft. (Names, addresses, dates of birth, telephone numbers, email addresses).

67

There is also an SSS requirement to update change of address. But it would not be surprising if that were commonly forgotten by young people whenever they move.

68

MinnesotaDadof3, #51, I think your objections to my line of thinking are overly broad. For one thing, the right of women to vote is included in the Constitution, in the 19th Amendment. That amendment did take a little over a year to ratify, but it did not languish and then fail, as the ERA did. I think you would have to search pretty broadly to find objections to the ERA on the grounds that women could sign contracts or own property if it passed. The objections to the ERA that I actually read at the time were explicitly based on the draft. The Supreme Court might overlook that history, but at least some of the members probably will not.

calmom could correct this impression, but I did not think that women had to go to the Supreme Court to secure the right to sign contracts or own property? It was not so long ago that married women could not get credit cards on their own, in some areas. I don’t think the changes in that situation had to go to the Supreme Court either. It seems to me that those issues primarily involve relations with business entities or sellers. Perhaps the commerce clause might be deemed to apply? On the other hand, registration and the (potential) draft are clearly functions of the federal government, and so they are more obviously subject to the Constitution. When the argument is made as to whether something is Constitutional or not, that will pretty much always wend its way to the Supreme Court (folksy, non-lawyer terminology).

calmom, you are certainly right that I am not a lawyer. Your background information is helpful. This issue is very likely to have an empirical test, ultimately, and as a scientist, I am all for empiricism. So it will most likely be a few years before we know for sure.

69

@ucbalumnus – my son has moved all over and honestly I doubt that it ever even occurred to him to update SSS. I certainly never thought to remind him. Of course he would always have been indirectly reachable at the address originally provided (mine). On the other hand, I’m quite he updates IRS on his current address each year when he files a return.

70

@QuantMech – The US Supreme Court doesn’t ordinarily create law. Laws are passed by Congress & legislatures. The US Supreme Court only weighs in when there is a claim that the laws are unconstitutional – and only has jurisdiction if a case is properly brought before it. So you need a plaintiff who has been the victim of some sort of government-imposed discrimination who is also inclined to go to court and appeal all the way to the US Supreme Court if necessary.

Contracts or own property?

https://www.theguardian.com/money/us-money-blog/2014/aug/11/women-rights-money-timeline-history

Credit cards? The government doesn’t issue them. That’s a function of the business practices of the card issuers – but discrimination by virtue of gender was outlawed by Congress when it passed The Equal Credit Opportunity Act of 1974, prohibiting any creditor to discriminate against any applicant on the basis of race, color, religion, national origin, sex, or marital status.

The first time the US Supreme Court ruled that 14th Amendment equal protection prohibited gender-based discrimination was in Reed vs. Reed (1971)-- so the equal credit act was passed 3 years after that decision. Reed v. Reed is the case that was mentioned in “On the Basis of Sex” movie involving a challenge to an Idaho law requiring that males be preferred over females in appointing estate administrators. (That’s where the movie played a little loose with the facts – RBG wrote the brief on that case but didn’t argue it, so the movie instead focused on a tax case she argued in the 10th Circuit Court of Appeal called Moritz v. IRS, so they could film an (overly) dramatized courtroom scene – but the Reed case came out before Moritz was decided).

Once Reed was decided, then it was established that laws could not discriminate on the basis of sex without a good reason, so in the wake of that & a small handful subsequent US Supreme Court cases, legislatures took initiative on their own to revise statutes, or controversies were resolved by lower courts based on the established Supreme Court precedent. US Supreme Court is a court of discretionary review, which mean that it is not required to accept cases, even if those cases were wrongly decided below – so they generally only step in when there is significant controversy on an important issue that goes beyond the narrow case of the litigants seeking review.

71

That’s just not true.

72

And, @QuantMech also writes

Neither of those sentences is true. First, SOME people did object to the ERA on draft-related grounds. However, that was only one of the objections. Others objected to it on reasons related to family law policy: they felt that it would weaken the presumptions that women were entitled to alimony in the event of divorce and that there should be a presumption that women should be granted custody of young children. Some unions opposed the law thinking that some special protections given to women by labor laws would be eroded.

Second, what representatives in state legislatures who failed to adopt the ERA gave as their reasons for opposing it wouldn’t be considered by the Supreme Court in determining the constitutionality of the draft’s registration requirements for men only.

73

Re #70. Well, the Supreme Court can always decline to grant certiorari. So the case might not be heard by the Supreme Court, but it does reach them. I am not writing of bar-room discussions about whether something is constitutional. It generally takes many years for the process to play out in any event.

Also, since there was no web in the era of the ERA, there is not a super-easy way to check the number of hits on “ERA draft” vs. “ERA divorce court.” I was just referring to the statements that I actually read, and my statement is true of them. Perhaps I was selective in my reading–but the draft always seemed to me to be the over-riding issue at the time when the ERA was under consideration.

With regard to credit cards, obviously I know that the government does not issue them. Equal access to credit was guaranteed by law, which seems to me as it should be. In fact, that was my point, in response to MinnesotaDadof3, who seemed to think that the entire set of hard-won equal opportunities for women would come crashing down, if the Supreme Court took historical opposition to the ERA, based on the draft, into account in deciding on a draft case. State governmental restrictions on executors can be and were challenged in court; but that was not one of MinnesotaDadof3’s examples (unless read into the etc.).

Public opinion was moving strongly in favor of equality for women in the 1970’s, generally speaking. I don’t think it actually took Reed v. Reed to persuade Congress to pass the Equal Credit Opportunity Act. That was coming regardless. Ladies Home Journal editors were arguing for it.

No one needs to persuade me that women have been oppressed and denied full equality. I have seen it in my own lifetime. I certainly don’t like it.

Also, despite the fact that I can’t provide case citations, no one needs to explain to me the distinctions among the actions of different branches of government. (At any rate, I can’t provide case citations reaching much beyond the ones generally taught in American history + American government, with Erie v. Tomkins thrown in.)

I stand by my original opinion, that the failure of the states to ratify the ERA, and the extent to which this failure was based on lack of willingness to subject women to the draft, is part of the historical record surrounding whether equal protection for women is enshrined in the Constitution, or whether it is simply a topic for legislation. This history seems particularly relevant in a case about the draft, or selective service registration. Just my opinion.

74

But the Texas court focused on the changes that have taken place in the interim, including the reality that women now serve in combat positions. So whereas in the past there could have been a legitimate government interest in drafting only men (that is, people qualified to fill infantry & combat needs) — that wouldn’t apply in today’s military. So that’s the source of the legal analysis, which seems fairly solid.

Procedurally, and appeal would go to the 5th Circuit Court of Appeal – but since the ruling is only for declaratory relief, there is no urgency. So it very well might sit in the DCA for a couple of years. I don’t see much likelihood of SCOTUS taking it up unless some other federal court in a different circuit issues a contrary ruling.

Bottom line, given the fact that in today’s army, women serve in all functions and roles —what, if any, would be a compelling government rationale for requiring men to register but not requiring women to sign up? I think this is actually legally analogous to Duren v. Missouri, which held it unconstitutional to automatically exempt women from jury service, although Duren was decided on 6th amendment grounds rather than 14th amendment equal protection. (And for RBG fans, Duren was the last Supreme Court case that RBG argued before her own appointment to the federal bench).

75

It does seem the easiest road would be for congress to change the selective service law to include women in the requirement to register.

Congress made it illegal to burn a draft card in 1966 (?). It was an answer on Jeopardy! (a repeat) the other night.

76

In August of 1965. I just looked it up.

77

All kids are registered. If the government needs to find you, they can, unless you live totally off the grid.
Because registering for the draft does not lead to any form of mandatory training and because the military does not want thousands of untrained teenagers if the US is attacked, ‘registering for the draft’ is now entirely unrelated to the army. There could be a ‘defense day’ to inform students and of course it should apply to both boys and girls but calling it ‘registering for the draft’ is a misnomer. As some have said, the (renamed) registration should include automatic enrollment on voter rolls since for today’s teenagers voting is a more likely way to show good citizenship and attachment to our nztion than taking up arms against an invader.

78

calmom’s point is well taken, that a federal court in a different circuit might issue a contrary ruling, and in that event the Supreme Court would accept the case. On the other hand, I think that the Court could accept the case brought through the court system to reach them eventually, without a contrary ruling. Is that not so?

Congress could change the selective service law, of course. Then one would not run into any issues connected with the fate of the ERA. The current House would almost certainly pass this. I am not sure the change would go through the current Senate, however.

When you look at the make-up of the Court, how do you see the Justices voting? (I really do not like beer.). Sotomayor and Kagan: It is unconstitutional to make only men register for the draft. Breyer and Ginsburg: Obviously, ditto. But I separated them out, because I am uncertain whether they will still be on the Court by the time a case connected with draft registration is likely to reach the Court.

I wish Ruth Bader Ginsburg a very long life of continued distinguished service to the country! Nonetheless, I was amused by the Saturday Night Live skit in which Ginsburg shared her calendar . . . in August, one day was marked “Turn 100,” and in September, the entire month was marked “Don’t die!”

O’Connor and Kennedy would have supported mandatory registration by women, I believe. But they are no longer on the Court.

As a scientist, I have not examined the Justices’ opinions in detail (joining a majority, writing a concurring opinion, writing a dissenting opinion, joining a dissent). So I am not sure how each of them would decide on this issue. Court-watchers could make predictions. I believe that Cavanaugh has two daughters. I suspect that family composition is likely to play a non-zero role in the Justices’ thinking.

79

I’m confident that family composition would play no role in Justice Kavanaugh’s opinion. His judicial philosophy and the legal analysis would apply, which is why even the most conservative and most liberal members of the Supreme Court vote together more than half the time. (Google the Alito and RBG voting records). It isn’t about what they wish the law was, it is applying the correct standard to what the law is. Hence very different judges ( also like Kavanaugh and Garland) can have over 90 % concurrence in decisions.

80

I don’t think family composition will play a decisive role, but I think there is a legitimate question whether the influence will be zero or not.

In my opinion, one sees the Justices’ philosophical differences playing out in a number of cases, where the law is not totally cut-and-dried. The New York Times used to run a column in the summer, showing the way the Justices had decided in 15 or 20 cases where there were split opinions. Our family used to give our own decisions in each of the cases and then see which was the Justice to whom we were most closely aligned. The number of cases in a year that the NYT included in the column was enough to differentiate among the liberal justices, for sure.

Everyone arguing against my view may be totally right; I realize that. But I think it’s worthwhile to wait for the experiment to be run.