Courts, Congress and the Military

The Washington Times (Washington, DC), August 8, 2005 | Go to article overview
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Courts, Congress and the Military


Byline: Elaine Donnelly, SPECIAL TO THE WASHINGTON TIMES

During upcoming hearings on the nomination of Judge John Roberts to the Supreme Court, senators should inquire about the nominee's philosophy on the tradition of judicial deference to the military. They should also make sure Judge Roberts does not agree with retiring Justice Sandra Day O'Connor that foreign court rulings may be used as guidance in U.S. courts.

These constitutional principles will greatly affect issues of concern to civilians as well as the military. Examples include the constitutionality of women's exemption from Selective Service registration, religious practices at military installations and service academies, the law banning homosexuals from the military, and the Solomon Amendment - legislation that withholds government funds from colleges that discriminate against military recruiters.

Inquiries about these matters will illuminate the nominee's judicial philosophy, while reminding Congress of the importance of passing clearly written laws for the military, and overseeing faithful enforcement reflecting legislative intent.

The concept of deference to the military is rooted in Article I of the Constitution, which vests in Congress the power to raise and support forces for national defense. Judicial deference recognizes that federal civilian courts are not empowered or capable of making policy for the armed forces, which are governed by unique rules and policies that necessitate a different application of constitutional rights.

The landmark 1981 decision in Rostker v. Goldberg, for example, found Selective Service registration of 18-year-old men, but not women, does not violate equal protection standards. In Rostker, the Supreme Court recognized a military draft is only instituted to provide a pool of "combat replacements" in time of war, and it would be problematic to register women for land combat from which they are exempt.

In 2003, five Boston students, represented by counsel associated with the American Civil Liberties Union, challenged the Rostker precedent in a Massachusetts federal court. The opinion dismissing that lawsuit restated the historic nexus between Selective Service obligations and land combat assignments, and deferred to the military's judgment.

The court also reaffirmed the judiciary has neither the power nor the competence to make policy in this area. A future Supreme Court adhering to this principle is unlikely to reverse the Rostker precedent, but this could change due to unauthorized policy shifts on involving women in land combat.

Under current Defense Department rules, female soldiers are not assigned to land combat forces such as the infantry, or support units that constantly operate, or "collocate," with combat troops that deliberately engage the enemy. If the Pentagon wants to change these regulations, federal law mandates advance notice to Congress, accompanied by an analysis of the effect of proposed revisions on women's exemption from Selective Service obligations.

Army officials have used semantic sophistry to circumvent the notification law, while deploying female soldiers in smaller land combat-collocated support units still required to be all-male.

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