Summary of Rostker v. Goldberg
Citation: 453 U.S. 57 (1981)
Relevant Facts: In 1980, President Carter requested that Congress re-institute the selective service system (the military draft) and recommended that Congress require registration of both males and females. Following extensive hearings, Congress appropriated funds for registration under the renewed Military Selective Service Act. However, Congress refused to amend the Act to include registration of women and only appropriated funds for registration of eligible males. President Carter, following Congressional action, instituted the renewed act as applied to specified groups of young men only. Several young men brought suit challenging the constitutionality of the renewed, gender-differentiated requirements. Robert Goldberg was one of several attorneys that brought suit on behalf of the men challenging the Act, naming- among others- Bernard Rostker as a defendant, in his official capacity as Director of the Selective Service System. A three-judge panel for the district court ruled in favor of Goldberg, concluding that the gender-based discrimination violated the Due Process clause of the Fifth Amendment. The district court enjoined registration under the Act.
Issue: Does Congressional judgment that selective service registration should only include men violate the Due Process Clause of the Fifth Amendment?
Holding: No, Congress concluded that only men should be required to register and Congressional judgment is entitled to considerable deference in the field of military and foreign affairs. While Congress may not ignore constitutional requirements in reaching conclusions about how best to raise an army, the district court erred in ignoring Congressional judgment.
Reasoning: Justice Rehnquist delivered the majority opinion. As he explained, Congress as a co-equal branch of government has an important role and substantial authority in constitutional interpretation. Furthermore, judicial deference to Congressional judgments is particularly appropriate when, as here, Congress specifically considered the constitutionality of the procedures adopted and where Congressional action concerned military affairs. In this case, Congress considered how best to provide for the armed forces in maintaining national defense and specifically chose to register males and exclude females from legislative requirements. While the Court can and should strike down Congressional action in violation of the Constitution, their judgment that military needs are best served by registering mean and not women is entitled to substantial judicial deference. In considering registration of women, Congress held extensive hearings, responding to the President’s recent request to appropriate funds for registration. Having considered whether it was appropriate to include women in 1980 hearings, Congress is not bound by outdated congressional judgments regarding women made during previous deliberations about the Selective Service Act. Congress found that future military needs required combat troops, and since women are excluded from combat by statute, men and women are not similarly situated with regard to registration. While Congress heard testimony regarding female military service, and entertained questions of equitable treatment, Congress was entitled to disregard those considerations and instead focus on military need. The district court in this case ignored Congressional conclusions that the need for female service members could be adequately met by volunteers, and Congress was entitled to greater deference than afforded at trial. Congress concluded that registration of women would be counterproductive to mobilization needs, that judgment is entitled to deference, and the Act does not conflict with due process requirements given that the sexes are not similarly situated with regard to military need.
Dissent: Justice White dissented, joined by Justice Brennan. He argued that the majority assumed that exclusion of women from combat was proper, but further assumed that noncombat roles could be better occupied by combat ready men. Describing the factual basis for the Congressional judgment, Justice White concluded that there was insufficient justification for what was unquestionably gender-based discrimination, without regard for whether women should be excluded from combat as there was no reasonable basis for excluding them from so many military jobs. Justice Marshall dissented, joined by Justice Brennan. He argued at the outset that the majority approved of continued improper views regarding the “proper" role of women, and in doing so excluded them from an important, universal civic obligation in violation of constitutional guarantees of equal protection of the laws. Justice Marshall would have engaged in an intermediate scrutiny analysis typical of gender-based differentiation rather than affording Congressional judgments substantial deference. In his view, the appropriate inquiry is not whether women would be required under Congressional views of potential mobilization, but whether the gender-based distinctions substantially related to the government’s interest in raising an army (consistent with intermediate scrutiny). Examining the Congressional record at length and failing to find an adequate justification for gender-based discrimination, Justice Marshall concluded that the majority had abandoned its constitutional duty by deferring to Congressional judgment in the face of competing constitutional requirements.
Conclusion: Congressional judgment that men, but not women, should be required to register for the draft is entitled to substantial deference. The majority concluded, in light of other, relevant statutes, that the sexes were not similarly situated with regard to selective service registration, thus authorizing Congress to adopt a gender-based policy as it chose to do here.