Academic journal article Duke Journal of Gender Law & Policy

Legal Impediments to Service: Women in the Military and the Rule of Law

Academic journal article Duke Journal of Gender Law & Policy

Legal Impediments to Service: Women in the Military and the Rule of Law

Article excerpt

PREAMBLE

Since our nation's birth, women have been engaged in the national defense in various ways. This article will examine the legal impediments to service by women in the United States military. This brings to light an interesting assessment of the meaning of the term "Rule of Law," as the legal exclusions barring women from service, establishing barriers to equality and creating a type of legal glass ceiling to preclude promotion, all fell within the then-existing Rule of Law in the United States. Finally, this article looks at the remaining barriers to women in the military and reasons to open all fields and all opportunities to women in today's military.

I. THE CONCEPT OF THE RULE OF LAW

Albert Venn Dicey, in "Law of the Constitution," identified three principles which establish the Rule of Law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts. (1)

This concept of the Rule of Law has existed since the beginning of the nation, most famously reflected in the writings of John Adams in drafting the constitution for the Commonwealth of Massachusetts. In that document, Adams wrote:

   In the government of this commonwealth, the legislative department
   shall never exercise the executive and judicial powers, or either
   of them: the executive shall never exercise the legislative and
   judicial powers, or either of them: the judicial shall never
   exercise the legislative and executive powers, or either of them:
   to the end it may be a government of laws and not of men. (2)

II. WOMEN IN THE MILITARY--THE LAW

It is hard to believe that, as recently as the early 1970s, women in the United States who wanted the opportunity to serve in their nation's armed forces were involuntarily separated from the military when they became pregnant. In fact, it took until the case of Crawford v. Cushman (3) before the courts concluded that the longstanding policy of the U.S. military of discharging a military woman as soon as pregnancy was discovered constituted a violation of the Fifth Amendment's due process clause.

Pregnancy and parenthood were two of many extremely challenging issues that faced the U.S. military throughout its transition to an all volunteer force. However, these issues were part of a long legacy of legislative and policy barriers established to keep the U.S. armed forces a predominantly male institution.

III. EARLY BARRIERS TO SERVICE

The military tradition, beginning with the Continental Army, did not include women, calling by Army regulation for service only by male enlistees. (4) However, it would be incorrect to say that women did not serve. From the earliest days of our nation women accompanied the U.S. armed forces, serving in a variety of supporting roles. Women were not included as an authorized component of the military until 1901 when Congress established the Nurse Corps as an auxiliary of the Army. (5)

Prior to that date, the women who participated in support of the U.S. military did so in various ways that are recounted largely in folklore or legend. Some of those who served did so by disguising themselves as men. (6) A number of women had served as spies, as was the case of Rose O'Neal Greenhow, who was arrested and imprisoned for supplying the Confederate Army with information, and Pauline Cushman, who was sentenced to be executed as a Union spy during the War Between the States. (7)

The first woman to receive the Congressional Medal of Honor, Dr. Mary Walker, provided her services as a doctor free of charge to Union forces in Virginia and Tennessee. (8) She had asked the Union Army to hire her as a doctor, but it refused. …

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