United States v. Reiser, Crim. No. 4517.

• Decision Date: 16 May 1975
• Docket Number: Crim. No. 4517.
• Citation: 394 F. Supp. 1060
• Parties: UNITED STATES of America, Plaintiff, v. George Kenneth REISER, Defendant.
• Court: U.S. District Court — District of Montana

394 F. Supp. 1060

UNITED STATES of America, Plaintiff, v. George Kenneth REISER, Defendant.

Crim. No. 4517.

United States District Court, D. Montana, Butte Division.

May 16, 1975.

Otis L. Packwood, U. S. Atty., Billings, Mont., Helena S. Maclay, Asst. U. S. Atty., Butte, Mont., for plaintiff.

James H. Goetz, Bozeman, Mont., for defendant.

ORDER

WILLIAM D. MURRAY, Senior District Judge.

The defendant in this case, George Kenneth Reiser, has been indicted under 50 App. U.S.C. § 462 for failure to submit to induction into the armed forces. The defendant's induction has been sought pursuant to the general Selective Service Laws of the United States, including 50 App. U.S.C. §§ 453 and 454 which provide for the registration, induction and training of male citizens only. The defendant, by way of a motion to dismiss, contends that this statutory scheme under which the United States has attempted to induct and now prosecute the defendant "establishes a sex-based classification which burdens and penalizes members of one sex and not the other." As a result the defendant maintains that his Constitutional rights to due process and equal protection, guaranteed him by the Fifth Amendment, have been violated. The Fifth Amendment of the Constitution prohibits the federal government from depriving any person of "life, liberty, or property, without due process of law." By virtue of this amendment, the federal government may also not deny any person the equal protection of the laws.¹ Women are, of course, "persons" but we have over the years legally discriminated between men and women for many reasons, some of which are justifiable, and others not.

Historically, in the western world at least, a woman's role has been cast as wife and mother; her place has been in the home.² Until recently the courts have done little to alter that conception, and have actively fostered this paternalistic approach. As one Supreme Court justice stated nearly a century ago: "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. Illinois, 16 Wall. 130, 141, 83 U.S. 130, 21 L.Ed. 442 (1873) (Bradley, J., concurring). Although many of the efforts to create a separate legal status for women undoubtedly stem from a good faith attempt to advance the interests of women, they all to often backfire to the economic and social detriment of women. This paternalism is especially prominent in the military, perhaps the most male dominated institution in society.³ For example, besides being excluded from the draft, women cannot constitute more than two percent of army personnel.⁴ The rationale underlying such an approach has been expressed by one court in the following manner: "If a nation is to survive, men must provide the first line of defense while women keep the home fires burning." U. S. v. St. Clair, 291 F. Supp. 122, 125 (S.D.N.Y.1968).

The draft, resulting in compulsory military service, is one of the most serious and onerous duties of citizenship. The Supreme Court has stated that "the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution." United States v. Schwimmer, 279 U.S. 644, 650, 49 S.Ct. 448, 450, 73 L. Ed. 889 (1929). Although women have made great strides in removing the vestiges of sex discrimination in many areas of the law, they will never accomplish total equality unless they are allowed to accept the concomitant obligations of citizenship. Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 873-74 (1971). Discriminatory treatment in one area of the law is bound to be reflected in other areas. Indeed, the drafting of women into the military has been the worst of the "parade of horribles" utilized as grounds for denial of sexual equality in considering the proposed Equal Rights Amendment. Although military service can provide a number of benefits, the requirements of serving in the armed forces will undoubtedly be an unpleasant experience for many women; but it is an equally unattractive experience for many men. Such men have a vital interest in sexual equality, as the addition of women to the draft pool substantially decreases the statistical likelihood of individual men being subject to the draft.

In enacting the Military Selective Service Act of 1967, Congress declared it the policy of Congress "that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy." (Emphasis added). 50 App. U.S.C. § 451(c).

I. The Two-tiered Equal Protection Test

In deciding whether or not the legislation establishing an all male draft is a violation of the Constitution, it is necessary to consider what justification exists for sex-based discrimination and what standard the courts have applied in determining the constitutionality of such discrimination.

A. Rational Basis test

The older standard formulated by the Supreme Court, known as the "rational basis" test, requires a rational relationship between the interest which the state is trying to promote (i. e., its "objective") and the classification or means which the state utilizes to attain that end. McGowen v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1960). When a government enactment affects different groups of people differently, the classification of these groups must be reasonable in order to justify the discriminatory treatment. "One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 340, 55 L.Ed. 369 (1911). The lines drawn need not be mathematically precise, and a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowen, supra 366 U.S. at 426, 81 S.Ct. at 1105. Using this test, then, the court need ask itself only two questions: 1) Does the statute have a permissible purpose? 2) Do the classifications drawn have a reasonable relation to this purpose?

B. Strict scrutiny test

Strict scrutiny, the more recently evolved equal protection test, is triggered whenever either a fundamental interest see e. g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) is at stake or the government has employed a suspect classification. Suspect classifications are based on a person's status. The more immutable the characteristics are upon which the classification is based, the more likely they will be held to be suspect. See note: Developments in the Law — Equal Protection, 82 Harv. L.Rev. 1065, 1126-27 (1969); See e. g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948). Thus under circumstances when a suspect classification or fundamental interest is involved, the court will exercise strict scrutiny and the government must present a compelling interest before the classification will be held justified. Shapiro, supra 394 U.S. at 634, 89 S.Ct. 1322. The distinctions drawn must also be necessary to accomplish the state's purpose (See n. 9 infra).

II. The Strict Scrutiny Test Applies

A. Sex a suspect classification

The defendant has argued that the strict scrutiny test ought to be applied to the draft because the sexual distinctions in the legislation which make him subject to induction are suspect classifications. After a close look at the rationale behind the "suspect classification" designation, the court agrees with the defendant; sex is a suspect classification.

An examination of those traits which have been held to be suspect in the past provides a basis for understanding why some classifications are inherently invidious. The Supreme Court has refused to let stand classifications based on race see e. g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), alienage see e. g., Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), and national origin see e. g., Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948); Korematsu v. U. S., 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Hirabayashi v. U. S., 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

Characteristics which are unalterable, such as race or national origin, are likely to be held suspect. Frontiero v. Richardson, 411 U.S. 677, 682-88, 93 S. Ct. 1764, 36 L.Ed.2d 583 (1973); Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal. Rptr. 329, 485 P.2d 529, 538-41 (1971). See also Note, Developments in the Law — Equal Protection, 82 Harv.L.Rev. 1065, 1173-77 (1969); Note, Are Sexbased Classifications Constitutionally Suspect?, 66 N.W.U.L.Rev. 481, 493-95 (1971). In a society which proclaims the equality of individuals, it is anomalous that some persons be accorded a more or less favorable status because of immutable characteristics, determined by an accident of birth. Suspect traits are generally highly visible, and thus persons who can be easily identified by some common external characteristics, are in particular danger of being subject to class legislation. The inequities ...