WASHINGTON — The Pentagon’s decision to allow women to join combat units is expected to reopen a legal debate the Supreme Court settled in 1981: Should women have to register with the government so it knows where to find them in the event of a new draft?
The Pentagon and the Selective Service, which keeps a roster of prospective male enlistees, say it’s too early to tell.
“Until Congress and the president make a change, we will continue doing what we’re doing,” Richard Flahavan, a Selective Service spokesman, said Friday. Namely, that means sticking to registering only male U.S. citizens and permanent residents ages 18 to 25.
Here’s a bit of history on women and the draft, from the Selective Service’s website. President Jimmy Carter re-established the Selective Service in 1980 after the Soviets invaded Afghanistan, raising the specter of a new global war. It was the most recent activation of a draft database established by Congress in 1917. Its resurgence spooked many Americans, coming seven years after the end of the draft triggered by the Vietnam War.
After a spirited debate, lawmakers decided to exempt women from the registration requirement. The Senate Armed Service Committee cited the Pentagon’s ban on women in combat as the main reason. A report by the committee mentioned “congressional concerns about the societal impact of the registration and possible induction of women,” according to the Selective Service’s summary of the debate.
A group of men sued the director of the Selective Service at the time, Bernard Rostker, arguing that the exclusion of women made the registration requirement unconstitutional under the Fifth Amendment’s due-process clause. In a 6 to 3 vote, the Supreme Court ruled that it was acceptable to exclude women. Writing for the majority, Justice William Rehnquist determined that “the fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration.”
In a dissenting opinion, Justice Thurgood Marshall chided the ruling, saying it “places its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women.’ “
Greg Jacob, the policy director of the Service Women’s Action Network, which advocated for the repeal of the ban on women in combat, said his organization thinks women ought to register with Selective Service.
“Part of equality means women have that shared responsibility,” he said.
Flahavan, the Selective Service spokesman, said the issue will have to be tackled by Congress.
“If the combat exclusion goes away, someone needs to be relooking at that now that [the Supreme Court] rationale no longer holds water,” he said.
Pentagon officials appear to have given little thought to the issue before they announced with great pomp that the military was ready to embrace female warriors in pretty much all corners of the military.
Defense Secretary Leon Panetta said Thursday during a news conference that he doesn’t know who “controls Selective Service, if you want to know the truth. Whoever does, they’re going to have to exercise some judgment based on what we just did.”
For the record, the agency is run by Lawrence Romo, a presidential appointee.