This piece was first published on PMJWire, the online blog for PolicyMatters Journal, the journal of the Goldman School of Public Policy, University of California, Berkeley. It was subsequently published here on December 16, 2015.
On December 3, 2015, Secretary of Defense Ashton Carter announced that all military positions, including combat occupations, are now open to women. This move follows a trend in recent years of military policy changes geared toward social equity, including the repeal of “Don’t Ask, Don’t Tell” and the easing of administrative action against transgender troops. It didn’t take long for demands for women to be required to register for the Selective Service to follow.
Changing the Law
Today’s incarnation of the draft, the Selective Service System (SSS), emerged in 1917, rooted firmly in the Constitution under Article I, Section 8. Since then, the exemption of women from registering has been repeatedly challenged and upheld in the judiciary, most recently in the 1981 Supreme Court case Rostker v. Goldberg. In a 6–3 decision, the court upheld that, because the purpose of the Selective Service is to prepare for a draft of combat troops, and because women are excluded from combat by policy, exempting women from registration is not a violation of the Due Process Clause of the Fifth Amendment. That policy no longer exists, and it’s only a matter of time before Rostker is overturned by the courts.
Even so, it is imperative that Congress pass legislation amending the Military Selective Service Act (MSSA) to explicitly include women. Doing so would remove any ambiguity and significantly reduce room for judicial interpretation. Such a bill already exists that will do exactly that. H.R. 1509 was introduced by Representative Charles Rangel (D-NY) on March 19, 2015 and has since been referred to the Subcommittee on Military Personnel, where it remains today. Advocates could choose to rally behind this existing bill or introduce another that exclusively addresses adding women to the MSSA.
Expect to see the typical arguments that women are physically, emotionally, and/or biologically unfit for combat service. What is important to emphasize, however, is that this argument is moot — the administrative decision is already made. A more compelling argument is that opening combat military jobs to women works because the women who volunteer for and succeed in those roles are physically capable of doing so. But in the event of a draft, there is no volunteering, and some may argue that standards would have to be lowered. Changes within the military to address disparate gender standards are still under development, but the various branches of service are either working on or already rolling out changes. These changes would translate to draft-time service, and standards will be upheld in the event of a draft to ensure the viability of the US fighting force.
Opponents may also pursue completely dismantling the SSS through legislation. As recently as 2013, lawmakers have eyed the SSS for elimination as a means to reduce wasteful spending (upwards of $24 million annually) and reject hawkish practices. I disagree. President Clinton said it best in 1994 when he characterized the Selective Service as “a relatively low-cost insurance policy.” The SSS does more than simply collect and catalog registrations; with only a small full-time staff, they stand ready to implement the draft on a moment’s notice, all the while testing, evaluating, and revising their plans. America needs the Selective Service System in the event of a dire emergency. Abolishing it would serve to neuter American defense capabilities when we would need them the most.
“Welcoming women to Selective Service registration is the next step in that history, and our military will be stronger for it.”
Mike Huckabee recently lamented that “the military is not a social experiment,” but there is no denying that the US Armed Forces has a proud history of spearheading the social and cultural changes of American society. Welcoming women to Selective Service registration is the next step in that history, and our military will be stronger for it.
Johnathon Parker is a Captain in the US Army and an MPP Candidate at the Goldman School of Public Policy. Views expressed are those of the individual only and not those of the Department of the Army or the Department of Defense.