Change Is a Comin': Department of Defense Decision to Open All Combat Jobs to Women Necessitates Change to Current Military Selective Service Act

By Sliney, Samantha Arrington | The University of Memphis Law Review, January 1, 2016 | Go to article overview

Change Is a Comin': Department of Defense Decision to Open All Combat Jobs to Women Necessitates Change to Current Military Selective Service Act


Sliney, Samantha Arrington, The University of Memphis Law Review


I. INTRODUCTION

It has been over 40 years since the last military draftin the United States;1 however, draftregistration is still required by males ages 18 to 26 years old.2 Throughout the United States' history, women have never been subject to the draft,3 mainly because women could not serve in combat positions, and Congress had determined that, if a military draftneeded to be used, it would be for combat troops.4

Over the past three years, much progress has been made with regard to women in combat. In 2013, then-Secretary ("Sec'y") of Defense Leon Panetta eliminated the 1994 Direct Ground Combat Definition and Assignment Rule,5 "removing the remaining barrier to the integration of women into all military occupational specialties and career fields within the U.S. military."6 Sec'y Panetta gave the Services an opportunity to submit data on what, if any, positions in which women should not be allowed to serve.7 After two years of collecting data and submitting recommendations to the Sec'y of Defense, in December 2015, then-Sec'y of Defense Ash Carter determined that all combat positions would be open to women without any exceptions. 8

With this decision comes many hurdles of implementation and unknown effects on current law, particularly the Military Selective Service Act ("MSSA"). In fact, Congress anticipated that changes like this could potentially have a drastic effect on the MSSA. So, under 10 U.S.C. § 652 the Sec'y of Defense is required to submit a report to Congress on both any changes related to women in combat and the legal analysis of the proposed change on the MSSA.9 Since December 2015, Congress has neither attempted to halt the implementation of Sec'y Carter's decision nor has Congress expressed a belief whether the current MSSA is unconstitutional in light of the recent changes.10

This question of whether the MSSA is still constitutional is the focus of this article. This article will first provide the text of the MSSA and the seminal United States Supreme Court case, Rostker v. Goldberg, precedent on this issue. The article will then provide a background on the current trends regarding women in combat, pending legislation that proposes changes to the MSSA, and two pending district court cases that seek to have the MSSA deemed unconstitutional in light of the recent changes. This article then provides a legal analysis on whether the MSSA is in fact currently unconstitutional, why Congress should act expeditiously to address the unconstitutionality of the MSSA before the courts do, and why Congress should repeal the MSSA. Lastly, this article will conclude with a brief synopsis of the key points of the article.

II. BACKGROUND

To understand the arguments made in this article, it is necessary to understand the current MSSA and the controlling case law regarding the constitutionality of requiring women to register for the draft.

A. The Military Selective Service Act

The MSSA is found at 50 U.S.C. § 3802. It states in relevant part:

[I]t shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.11

The current Act does not require women to register for the draft; however, there are two pieces of pending legislation in the House of Representatives that seek to amend the act to require women to register12 or to repeal the act in its entirety.13

B. Rostker v. Goldberg

The concept of women and the draftis not a recent development. In 1981, the United States Supreme Court addressed this very issue. In the seminal case Rostker v. Goldberg, Justice William Rehnquist, writing for the majority, held that:

[S]ince women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draftor registration for a draft, and Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. …

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