5th Amendment Violation?

[JonJ]

In 1981, the Supreme Court ruled in Rostker v Goldberg that registering only men, and not women, under the Military Selective Service Act did not violate the due process clause of the Fifth Amendment. According to Justice Rehnquist, the reason for this was that women were excluded by law from combat positions.

"The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.

Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause."

As you may know, last year the Department of Defense announced that it was beginning the process of opening all combat positions to women, to be completed "no later" than January 2016.

My question is whether, once this process is completed, and all combat positions are open to women, the courts are likely to find that the MSSA, as currently written, does now violate the due process clause?

I'm interested in this because I would like to see the Selective Service System abolished, and that would be one of the two options that Congress would be left with if the MSSA in it's current form was ruled unconstitutional.

 

[justalayman]

There will be some form of the selective service regardless what a future challenge based on gender would cause. I don't know why you would even suggest the selective service, regardless of what specific form it may take would disappear totally

 

[JonJ]

There will be some form of the selective service regardless what a future challenge based on gender would cause. I don't know why you would even suggest the selective service, regardless of what specific form it may take would disappear totally

If the courts were to rule it unconstitutional in it's current form, then Congress would have two options: 1. make registration gender-neutral, or 2. require no one to register. If Congress chooses the second option, and no one is required to register, why would they bother keeping the SSS around? What purpose would it serve?

Anyway, I'm more interested in what the likely outcome of future litigation would be after all combat positions are opened to women.

 

[Zigner]

Anyway, I'm more interested in what the likely outcome of future litigation would be after all combat positions are opened to women.

I had the crystal ball about a week ago, but a small group of individuals dressed in black came to my house and...retrieved it.

 

[TheGeekess]

I had the crystal ball about a week ago, but a small group of individuals dressed in black came to my house and...retrieved it.

The Coven determined that it needed to be re-calibrated, amongst other maintenance scheduled.

 

[justalayman]

If the courts were to rule it unconstitutional in it's current form, then Congress would have two options: 1. make registration gender-neutral, or 2. require no one to register. If Congress chooses the second option, and no one is required to register, why would they bother keeping the SSS around? What purpose would it serve?
.

ok, more specifically; they are not going to abolish the requirement to register for the possibility of a draft into the armed services. It serves more purposes than that and as such, it will not go away.

Anyway, I'm more interested in what the likely outcome of future litigation would be after all combat positions are opened to women.

I believe it would be that all youngins would be required to register regardless of gender. Since there is no active draft at this time, it means nothing really. If there is a draft sometime in the future, the military does still retain the right to assign a draftee to a position they deem appropriate. As such, I suspect females will not generally be put into combat positions, or at least no front line placement.


regardless of the SSS, women are placed in positions where they are at risk. Any support group is always at risk for attack by an enemy. It is a smart strategic move to remove the supply line to any forward group.

There was a woman taken prisoner in one of the recent military campaigns. She was part of a supply group. We have women pilots as well. I don't know if they fly any aircraft that are involved directly in battle actions but being up in the air is enough to be "in danger" of being brought down.