453 U.S. 57 (1981), 80-251, Rostker v. Goldberg,

Docket Nº:No. 80-251
Citation:453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478
Party Name:Rostker v. Goldberg,
Case Date:June 25, 1981
Court:United States Supreme Court

Page 57

453 U.S. 57 (1981)

101 S.Ct. 2646, 69 L.Ed.2d 478




No. 80-251

United States Supreme Court

June 25, 1981




The Military Selective Service Act (Act) authorizes 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 [101 S.Ct. 2648] 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.

Held: The Act's registration provisions do not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women. Pp. 64-83.

(a) The customary deference accorded Congress' judgments is particularly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality, and perhaps in no area has the Court accorded Congress greater deference than in the area of national defense and military affairs. While Congress is not free to disregard the Constitution when it acts in the area of military affairs, this Court must be particularly careful not to substitute its judgment of what is desirable for that of Congress, or its own evaluation of evidence for a reasonable evaluation by the Legislative Branch. Congress carefully considered whether to register only males for potential conscription or whether to register both sexes, and its broad constitutional authority

Page 58

cannot be ignored in considering the constitutionality of its studied choice of one alternative in preference to the other. Pp. 64-72.

(b) The question of registering women was extensively considered by Congress in hearings held in response to the President's request for authorization to register women, and its decision to exempt women was not the accidental byproduct of a traditional way of thinking about women. Since Congress thoroughly reconsidered the question of exempting women from the Act in 1980, the Act's constitutionality need not be considered solely on the basis of the views expressed by Congress in 1948, when the Act was first enacted in its modern form. Congress' determination that any future draft would be characterized by a need for combat troops was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. And since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men therefore does not violate the Due Process Clause. The testimony of executive and military officials before Congress showed that the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need, rather than "equity." The District Court, undertaking an independent evaluation of the evidence, exceeded its authority in ignoring Congress' conclusions that whatever the need for women for noncombat roles during mobilization, it could be met by volunteers, and that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility. Pp. 72-83.

509 F.Supp. 586, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., post, p. 83, and MARSHALL, J., post, p. 86, filed dissenting opinions, in which BRENNAN, J., joined.

Page 59

REHNQUIST, J., lead opinion

JUSTICE REHNQUIST delivered the opinion of the Court.

The question presented is whether the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males, and not females.


Congress is given the power under the Constitution "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8, cls. 12-14. Pursuant to this grant of authority, Congress has enacted the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (1976 ed. and Supp. III) (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 453, empowers the President, by proclamation, to require the registration of "every male citizen" and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription: pursuant to § 4 (a) of the Act, 62 Stat. 605, as amended, 50 U.S.C.App. § 454 (a), those persons required to register under § 3 are liable for

Page 60

training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction.

Registration for the draft under § 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.), note following 50 U.S.C.App. § 453. In early 1980, President Carter determined that it was necessary to reactivate the draft registration process.1 The immediate impetus for this decision was the Soviet armed invasion of Afghanistan. 16 Weekly Comp. of Pres.Doc. 198 (1980) (State of the Union Address). According to the administration's witnesses before the Senate Armed Services Committee, the resulting crisis in Southwestern Asia convinced the President that the "time has come" "to use his present authority to require registration . . . as a necessary step to preserving or enhancing our national security interests." Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 before the Senate Committee on Armed Services, 96th Cong., 2d Sess., 1805 (1980) (hereafter Hearings on S. 2294) (joint statement of Dr. John P. White, Deputy Director, Office of Management and Budget, Dr. Bernard Rostker, Director, Selective Service System, and Richard Danzig, Principal Deputy Assistant Secretary of Defense). The Selective Service System had been inactive, however, and funds were needed before reactivating registration. The President therefore recommended that funds be transferred from the Department of Defense to the separate Selective Service System. H.R.Doc. No. 96-267, p. 2 (1980). He also recommended that Congress take action to amend the MSSA to permit the registration and conscription of women as well as men. See House Committee on Armed Services, Presidential Recommendations

Page 61

for Selective Service Reform -- A Report to Congress Prepared Pursuant to Pub.L. 96-107, 96th Cong., 2d Sess., 223 (Comm.Print No.19, 1980) (hereinafter Presidential Recommendations), App, 57-61.

Congress agreed that it was necessary to reactivate the registration process, and allocated [101 S.Ct. 2650] funds for that purpose in a Joint Resolution which passed the House on April 22 and the Senate on June 12. H.J.Res. 521, Pub.L. 9282, 94 Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. See S.Rep. No. 96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong.Rec. 13895 (1980) (Sen. Nunn). Although Congress considered the question at great length, see infra at 72-74, it declined to amend the MSSA to permit the registration of women.

On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority conferred by § 3 of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).

These events of last year breathed new life into a lawsuit which had been essentially dormant in the lower courts for nearly a decade. It began in 1971, when several men subject to registration for the draft and subsequent induction into the Armed Services filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the MSSA on several grounds.2 A three-judge District

Page 62

Court was convened in 1974 to consider the claim of unlawful gender-based discrimination which is now before us.3 On July 1, 1974, the court declined to dismiss the case as moot, reasoning that, although authority to induct registrants had lapsed, see n. 1 supra, plaintiffs were still under certain affirmative obligations in connection with registration. Rowland v. Tarr, 378 F.Supp. 766. Nothing more happened in the case for five years. Then, on June 6, 1979, the court Clerk, acting pursuant to a local rule governing inactive cases, proposed that the case be dismissed. Additional discovery thereupon ensued, and defendants moved to dismiss on various justiciability grounds. The court denied the motion...

To continue reading