The Draft: For Men Only

By Bennett H. Beach

Women may be excluded, the Supreme Court rules

Over the past decade, American women have taken one big military step after another. In 1972, for the first time, they were made Navy pilots. Four years later, they were allowed to enroll at the service academies. Meantime, so many volunteered that the percentage of women in the military increased sevenfold and is expected to reach 12% by 1985. But when Congress revived draft registration a year ago, it excluded women. Last week, in the most eagerly awaited decision of the term, the Supreme Court upheld, 6 to 3, the registration plan as constitutional.

This latest battle over equal rights grew out of the Soviet invasion of Afghanistan in 1979. As a sign of U.S. resolve, Jimmy Carter called for a resumption of draft registration. He urged that women, too, be required to sign up, but Congress demurred. Weeks later, a federal district court in Philadelphia concluded that the registration law violated the equal-protection guarantees of the Fifth Amendment. In July, Supreme Court Justice William Brennan stayed that decision until the high court could review it, and registration went forward as planned. Since then, some 5.8 million men, aged 18 to 21 (more than 90% of those eligible), have gone to their post offices to fill out green-and-white registration forms.

To win the high court's constitutional blessing, the Government had to show that the different treatment of the sexes was "substantially related" to the achievement of an "important governmental interest." That is the test spelled out in a series of sex-discrimination cases decided over the past five years. Both sides agreed a legitimate interest was involved: the raising and supporting of armies. In examining the means for carrying out what is regarded as an important Government goal, courts often defer somewhat to Congress; when military matters are at issue, the judiciary tends to allow even greater latitude.

Considered in that light, the congressional rationale for excluding women passed with flying colors. Wrote Justice William Rehnquist for the majority: "The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat,* Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them." He said Congress had determined that even with women restricted to noncombat positions, registering them "would be positively detrimental to the important goal of military flexibility." Reason: in emergencies, armies sometimes use support personnel to fill frontline holes.

In dissenting, Justice Thurgood Marshall cited military estimates that 80,000 positions (out of a total of 650,000) could be filled by women in the event of a mobilization. Wrote Marshall: "In an attempt to avoid its constitutional obligation, the court today 'pushes back the limits of the Constitution' to accommodate an act of Congress."

President Reagan was reported to be "generally pleased" with the ruling, and conservative groups were ecstatic. Phyllis Schlafly, who has been a leading opponent of the proposed Equal Rights Amendment, called it a "tremendous victory." Said she: "I think this decision puts the nails in the coffin of ERA."

Civil libertarians and ERA proponents were bitterly disappointed. Said Eleanor Smeal, president of the National Organization for Women: "It perpetuates the myth that we can't cut the mustard, when we know that we can." She and others maintain that many men refuse to back the ERA and other guarantees of equality on the ground that since women do not bear certain burdens, like the draft, they are not entitled to all of society's benefits. Most scholars, however, do not view the decision as a major high-court retreat on sex discrimination. Says University of Virginia Law Professor A.E. Dick Howard: "I'd call this a military case, not a sex-discrimination case. I wouldn't read any broad signals into it."

The decision could spell legal trouble for young men who had been counting on the court to give them a reprieve from registration. Now that the constitutional question has been settled, the Justice Department intends to prosecute some of the more than 500,000 who have not yet registered. Even many of those who had, felt the exemption of women was unfair, for reasons both philosophical and practical. Said San Francisco Painting Contractor Mike Gallegioni, 21: "It will be lonely without them."

--By Bennett H. Beach.

Reported by Evan Thomas/Washington

* Statutes prohibit the Navy and Air Force from putting females into combat, while service regulations preclude the Army and Marine Corps from using them in that capacity.

With reporting by Evan Thomas

This file is automatically generated by a robot program, so viewer discretion is required.