Supreme Court of the United States


Decision in the case of





ROSTKER v. GOLDBERG, 453 U.S. 57 (1981)


453 U.S. 57

No. 80-251.


Argued March 24, 1981.
Decided [6 to 3] June 25, 1981.


[1] REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., post, p. 83, and MARSHALL, J., post, p. 86, filed dissenting opinions, in which BRENNAN, J., joined.


JUSTICE REHNQUIST delivered the opinion of the Court.


[2] The question presented is whether the Military Selective Service Act, 50 U.S.C. App. 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males and not females.




[3] Congress is given the power under the Constitution "To raise and support Armies," "To provide and maintain a Navy," and "To make Rules for the Government and Regulation of the land and naval Forces." Art. I, 8, cls. 12-14. Pursuant to this grant of authority Congress has enacted the Military Selective Service Act, 50 U.S.C. App. 451 et seq. (1976 ed. and Supp. III) (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U.S.C. App. 453, empowers the President, by proclamation, to require the registration of "every male citizen" and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription: pursuant to 4 (a) of the Act, 62 Stat. 605, as amended, 50 U.S.C. App. 454 (a), those persons required to register under 3 are liable for [453 U.S. 57, 60] training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction.


[4] Registration for the draft under 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971-1975 Comp.), note following 50 U.S.C. App. 453. In early 1980. President Carter determined that it was necessary to reactivate the draft registration process. 1 The immediate impetus for this decision was the Soviet armed invasion of Afghanistan. . . ..


[5] Congress agreed that it was necessary to reactivate the registration process, and allocated funds for that purpose in a Joint Resolution which passed the House on April 22 and the Senate on June 12. H. J. Res. 521, Pub. L. 96-282, 94 Stat. 552. The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. See S. Rep. No. 96-789, p. 1, n. 1, and p. 2 (1980); 126 Cong. Rec. 13895 (1980) (Sen. Nunn). Although Congress considered the question at great length, see infra, at 72-74, it declined to amend the MSSA to permit the registration of women.


[6] On July 2, 1980, the President, by Proclamation, ordered the registration of specified groups of young men pursuant to the authority conferred by 3 of the Act. Registration was to commence on July 21, 1980. Proclamation No. 4771, 3 CFR 82 (1980).




[7] On Friday, July 18, 1980, three days before registration was to commence, the District Court issued an opinion finding that the Act violated the Due Process Clause of the Fifth Amendment and permanently enjoined the Government from requiring registration under the Act. The court initially determined that the plaintiffs had standing and that the case was ripe, determinations which are not challenged here by the Government. Turning to the merits, the court rejected plaintiffs' suggestions that the equal protection claim should be tested under "strict scrutiny," and also rejected defendants' argument that the deference due Congress in the area of military affairs required application of the traditional "minimum scrutiny" test. Applying the "important government interest" test articulated in Craig v. Boren, 429 U.S. 190 (1976), the court struck down the MSSA.




[8] The Director of Selective Service immediately filed a notice of appeal and the next day, Saturday, July 19, 1980, JUSTICE BRENNAN, acting in his capacity as Circuit Justice for the Third Circuit, stayed the District Court's order enjoining commencement of registration. 448 U.S. 1306 . Registration began the next Monday. On December 1, 1980, we noted probable jurisdiction. 449 U.S. 1009 .




[9] Whenever called upon to judge the constitutionality of an Act of Congress - "the gravest and most delicate duty that this Court is called upon to perform," Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.) - the Court accords "great weight to the decisions of Congress." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973). The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. As Justice Frankfurter noted in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164 (1951) (concurring opinion), we must have "due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government." The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality. See, e. g., S. Rep. No. 96-826, pp. 159-161 (1980); 126 Cong. Rec. 13880-13882 (1980) (Sen. Warner); id., at 13896 (Sen. Hatfield).


[10] This is not, however, merely a case involving the customary deference accorded congressional decisions. The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has [453 U.S. 57, 65] the Court accorded Congress greater deference. In rejecting the registration of women, Congress explicitly relied upon its constitutional powers under Art. I, 8, cls. 12-14. The "specific findings" section of the Report of the Senate Armed Services Committee, later adopted by both Houses of Congress, began by stating:


[11] "Article I, section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary." S. Rep. No. 96-826, supra, at 160.


[12] See also S. Rep. No. 96-226, p. 8 (1979). This Court has consistently recognized Congress' "broad constitutional power" to raise and regulate armies and navies, Schlesinger v. Ballard, 419 U.S. 498, 510 (1975). As the Court noted in considering a challenge to the selective service laws: "The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping." United States v. O'Brien, 391 U.S. 367, 377 (1968). See Lichter v. United States, 334 U.S. 742, 755 (1948).


[13] Not only is the scope of Congress' constitutional power in this area broad, but the lack of competence on the part of the courts is marked. In Gilligan v. Morgan, 413 U.S. 1, 10 (1973), the Court noted:


[14] "[I] t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, [453 U.S. 57, 66] subject always to civilian control of the Legislative and Executive Branches."

See also Orloff v. Willoughby, 345 U.S. 83, 93 -94 (1953). 5


[15] The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court. In Parker v. Levy, 417 U.S. 733, 756 , 758 (1974), the Court rejected both vagueness and overbreadth challenges to provisions of the Uniform Code of Military Justice, noting that "Congress is permitted to legislate both with greater breadth and with greater flexibility" when the statute governs military society, and that "[w] hile the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections." In Middendorf v. Henry, 425 U.S. 25 (1976), the Court noted that in considering due process claims in the context of a summary court-martial it "must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const., Art. I. 8," concerning what rights were available. Id., at 43. See also id., at 49-50 (POWELL, J., concurring). Deference to the judgment of other branches in the area of military affairs also played a major role in Greer v. Spock, 424 U.S. 828, 837 -838 (1976), where the Court upheld a ban on political speeches by civilians on a military base, and Brown v. Glines, 444 U.S. 348 (1980), where the Court upheld regulations imposing a prior restraint on the right to petition of military personnel. [453 U.S. 57, 67] See also Burns v. Wilson, 346 U.S. 137 (1953); United States v. MacIntosh, 283 U.S. 605, 622 (1931).


[16] In Schlesinger v. Ballard, supra, the Court considered a due process challenge, brought by males, to the Navy policy of according females a longer period than males in which to attain promotions necessary to continued service. The Court distinguished previous gender-based discriminations held unlawful in Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973). In those cases, the classifications were based on "overbroad generalizations." See 419 U.S., at 506 -507. In the case before it, however, thee Court noted:


[17] "[T] he different treatment of men and women naval officers . . . reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service. Appellee has not challenged the current restrictions on women officers' participation in combat and in most sea duty." Id., at 508.


[18] In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.


[19] None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We of course do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, [453 U.S. 57, 68] Inc. v. Democratic National Committee, 412 U.S., at 103 . In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.


[20] The District Court purported to recognize the appropriateness of deference to Congress when that body was exercising its constitutionally delegated authority over military affairs, 509 F. Supp., at 596, but it stressed that "[w] e are not here concerned with military operations or day-to-day conduct of the military into which we have no desire to intrude." Ibid. Appellees also stress that this case involves civilians, not the military, and that "the impact of registration on the military is only indirect and attenuated." Brief for Appellees 19 (emphasis omitted). We find these efforts to divorce registration from the military and national defense context, with all the deference called for in that context, singularly unpersuasive. United States v. O'Brien, 391 U.S. 367 (1968), recognized the broad deference due Congress in the selective service area before us in this case. Registration is not an end in itself in the civilian world but rather the first step in the induction process into the military one, and Congress specifically linked its consideration of registration to induction, see, e. g., S. Rep. No. 96-826, pp. 156, 160 (1980). Congressional judgments concerning registration and the draft are based on judgments concerning military operations and needs, see, e. g., id., at 157 ("the starting point for any discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat"), and the deference unquestionably due the latter judgments is necessarily required in assessing the former as well. Although the District Court stressed that it was not intruding on military questions, its opinion was based on assessments of military need and flexibility in a time of mobilization. See, e. g., 509 F. Supp., at 600-605. It would be blinking reality to say that [453 U.S. 57, 69] our precedents requiring deference to Congress in military affairs are not implicated by the present case. 6


[21] The Solicitor General argues, largely on the basis of the foregoing cases emphasizing the deference due Congress in the area of military affairs and national security, that this Court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate Government purpose, see U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980), and should not examine the Act under the heightened scrutiny with which we have approached gender-based discrimination, see Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981); Craig v. Boren, 429 U.S. 190 (1976); Reed v. Reed, supra. 7 We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" [453 U.S. 57, 70] which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand or "gender-based" on the other does not automatically guide a court to the correct constitutional result.


[22] No one could deny that under the test of Craig v. Boren, supra, the Government's interest in raising and supporting armies is an "important governmental interest." Congress and its Committees carefully considered and debated two alternative means of furthering that interest: the first was to register only males for potential conscription, and the other was to register both sexes. Congress chose the former alternative. When that decision is challenged on equal protection grounds, the question a court must decide is not which alternative it would have chosen, had it been the primary decisionmaker, but whether that chosen by Congress denies equal protection of the laws.


[23] Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. As previously noted, supra, at 67, deference does not mean abdication. The reconciliation between the deference due Congress and our own constitutional responsibility is perhaps best instanced in Schlesinger v. Ballard, 419 U.S., at 510 , where we stated:


[24] "This Court has recognized that `it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' [U.S. ex rel.] Toth [453 U.S. 57, 71] v. Quarles, 350 U.S. 11, 17 . See also Orloff v. Willoughby, 345 U.S. 83, 94 . The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U.S. Const., Art. I, 8, cls. 12-14, and with the President. See U.S. Const., Art. II, 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment."

Or, as put a generation ago in a case not involving any claim of gender-based discrimination:


[25] "[J] udges are not given the task of running the Army. The responsibility for setting up channels through which . . . grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, 345 U.S., at 93 -94.


[26] Schlesinger v. Ballard did not purport to apply a different equal protection test because of the military context, but did stress the deference due congressional choices among alternatives in exercising the congressional authority to raise and support armies and make rules for their governance. In light of the floor debate and the Report of the Senate Armed Services Committee hereinafter discussed, it is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services. In such a case, we cannot ignore Congress' broad authority conferred by the Constitution to raise and support armies when we are urged to declare [453 U.S. 57, 72] unconstitutional its studied choice of one alternative in preference to another for furthering that goal.




[27] This case is quite different from several of the gender-based discrimination cases we have considered in that, despite appellees' assertions, Congress did not act "unthinkingly" or "reflexively and not for any considered reason." Brief for Appellees 35. The question of registering women for the draft not only received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President's request for authorization to register women adduced extensive testimony and evidence concerning the issue. See Hearings on S. 2294; Hearings on H. R. 6569, Registration of Women, before the Subcommittee on Military Personnel of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980) (hereafter House Hearings). These hearings built on other hearings held the previous year addressed to the same question. 8


[28] The House declined to provide for the registration of women when it passed the Joint Resolution allocating funds for the Selective Service System. See 126 Cong. Rec. 8601-8602, 8620 (1980). When the Senate considered the Joint Resolution, it defeated, after extensive debate, an amendment which in effect would have authorized the registration of women. Id., at 13876-13898. 9 As noted earlier, Congress in [453 U.S. 57, 73] H. J. Res. 521 only authorized funds sufficient to cover the registration of males. The Report of the Senate Committee on Appropriations on H. J. Res. 521 noted that the amount authorized was below the President's request "due to the Committee's decision not to provide $8,500,000 to register women," and that "[t] he amount recommended by the Committee would allow for registration of young men only." S. Rep. No. 96-789, p. 2 (1980); see 126 Cong. Rec. 13895 (1980) (Sen. Nunn).


[29] While proposals to register women were being rejected in the course of transferring funds to register males, Committees in both Houses which had conducted hearings on the issue were also rejecting the registration of women. The House Subcommittee on Military Personnel of the House Armed Services Committee tabled a bill which would have amended the MSSA to authorize registration of women, H. R. 6569, on March 6, 1980. Legislative Calendar, House Committee on Armed Services, 96th Cong., 2d Sess., 58 (1979-1980). The Senate Armed Services Committee rejected a proposal to register women, S. 2440, as it had one year before, see S. Rep. No. 96-226, pp. 8-9 (1979), and adopted specific findings supporting its action. See S. Rep. No. 96-826, pp. 156-161 (1980). These findings were stressed in debate in the Senate on Joint Resolution 521, see 126 Cong. Rec. 13893-13894 (1980) (Sen. Nunn); id., at 13880-13881 (Sen. Warner). They were later specifically endorsed by House and Senate conferees considering the Fiscal Year 1981 Defense Authorization Bill. See S. Conf. Rep. No. 96-895, p. 100 (1980). 10 [453 U.S. 57, 74] Later both Houses adopted the findings by passing the Report. 126 Cong. Rec. 23126, 23261 (1980). The Senate Report, therefore, is considerably more significant than a typical report of a single House, and its findings are in effect findings of the entire Congress.


[30] The foregoing clearly establishes that the decision to exempt women from registration was not the "'accidental byproduct of a traditional way of thinking about females.'" Califano v. Webster, 430 U.S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (STEVENS. J., concurring in judgment)). In Michael M., 450 U.S., at 471 , n. 6 (plurality opinion), we rejected a similar argument because of action by the California Legislature considering and rejecting proposals to make a statute challenged on discrimination grounds gender-neutral. The cause for rejecting the argument is considerably stronger here. The issue was considered at great length, and Congress clearly expressed its purpose and intent. Contrast Califano v. Westcott, 443 U.S. 76, 87 (1979) ("The gender qualification . . . escaped virtually unnoticed in the hearings and floor debates"). 11




[31] Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that "[i] f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S. Rep. No. 96-826, p. 160 (1980); see id., at 158. This conclusion echoed one made a year before by the same Senate Committee, see S. Rep. No. 96-226, pp. 2-3, 6 (1979). As Senator Jepsen put it, "the shortage would be in the combat arms. That is why you have drafts." Hearings on S. 2294, at 1688. See also id., at 1195 (Sen. Jepsen); 126 Cong. Rec. 8623 (1980) (Rep. Nelson). Congress' determination that the need would be for combat troops if a draft took place was sufficiently supported by testimony adduced at the hearings so that the courts are not free to make their own judgment on the question. See Hearings on S. 2294, at 1528-1529 (Marine Corps Lt. Gen. Bronars); 1395 (Principal Deputy Assistant Secretary of Army Clark); 1391 (Lt. Gen. Yerks); 748 (Gen. Meyer); House Hearings 17 (Assistant Secretary of Defense for Manpower Pirie). See also Hearing on S. 109 and S. 226, at 24, 54 (Gen. Rogers). The purpose of registration, therefore, was to prepare for a draft of combat troops.


[32] Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. 6015 (1976 ed., Supp. III), "women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions," and under 10 U.S.C. 8549 female members of the Air Force "may not be assigned to duty in aircraft engaged in combat missions." The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from [453 U.S. 57, 77] combat in exempting women from registration. In the words of the Senate Report:


[33] "The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee . . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy." S. Rep. No. 96-826, supra, at 157.


[34] The Senate Report specifically found that "[w] omen should not be intentionally or routinely placed in combat positions in our military services." Id., at 160. See S. Rep. No. 96-226, supra, at 9. 12 The President expressed his intent to continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat. 13 Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U.S. 498 (1975), we must examine appellees' constitutional claim concerning registration with these combat restrictions firmly in mind.


[35] The existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. 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. Again turning to the Senate Report:


[36] "In the Committee's view, the starting point for any [453 U.S. 57, 78] discussion of the appropriateness of registering women for the draft is the question of the proper role of women in combat. . . . The policy precluding the use of women in combat is, in the Committee's view, the most important reason for not including women in a registration system." S. Rep. No. 96-826, supra, at 157. 14


[37] The District Court stressed that the military need for women was irrelevant to the issue of their registration. As that court put it: "Congress could not constitutionally require registration under the MSSA of only black citizens or only white citizens, or single out any political or religious group simply because those groups contain sufficient persons to fill the needs of the Selective Service System." 509 F. Supp., at 596. This reasoning is beside the point. The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or all-Democratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.


[38] Congress' decision to authorize the registration of only men, [453 U.S. 57, 79] therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress' purpose in authorizing registration. See Michael M., 450 U.S., at 472 -473 (plurality opinion); Craig v. Boren, 429 U.S. 190 (1976); Reed v. Reed, 404 U.S. 71 (1971). The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops. As was the case in Schlesinger v. Ballard, supra, "the gender classification is not individious, but rather realistically reflects the fact that the sexes are not similarly situated" in this case. Michael M., supra, at 469 (plurality opinion). The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.


[39] . . . The Senate Report, evaluating the testimony before the Committee, recognized that "[t] he argument for registration and induction of women . . . is not based on military [453 U.S. 57, 80] necessity, but on considerations of equity." S. Rep. No. 96-826, p. 158 (1980). Congress was certainly entitled, in the exercise of its constitutional powers to raise and regulate armies and navies, to focus on the question of military need rather than "equity." 15 As Senator Nunn of the Senate Armed Services Committee put it:


[40] "Our committee went into very great detail. We found that there was no military necessity cited by any witnesses for the registration of females.


[41] "The main point that those who favored the registration of females made was that they were in favor of this because of the equality issue, which is, of course, a legitimate view. But as far as military necessity, and that is what we are primarily, I hope, considering in the overall registration bill, there is no military necessity for this." 126 Cong. Rec. 13893 (1980).


[42] See also House Hearings 20 (Rep. Holt) ("You are talking about equity. I am talking about military"). 16


[43] Although the military experts who testified in favor of registering women uniformly opposed the actual drafting of [453 U.S. 57, 81] women, see, e. g., Hearing on S. 109 and S. 226, at 11 (Gen. Rogers), there was testimony that in the event of a draft of 650,000 the military could absorb some 80,000 female inductees. Hearings on S. 2294, at 1661, 1828. The 80,000 would be used to fill noncombat positions, freeing men to go to the front. In relying on this testimony in striking down the MSSA, the District Court palpably exceeded its authority when it ignored Congress' considered response to this line of reasoning.


[44] In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. "It has been suggested that all women be registered, but only a handful actually be inducted in an emergency. The Committee finds this a confused and ultimately unsatisfactory solution." S. Rep. No. 96-826, supra, at 158. As the Senate Committee recognized a year before, "training would be needlessly burdened by women recruits who could not be used in combat." S. Rep. No. 96-226, p. 9 (1979). See also S. Rep. No. 96-826, supra, at 159 ("Other administrative problems such as housing and different treatment with regard to dependency, hardship and physical standards would also exist"). It is not for this Court to dismiss such problems as insignificant in the context of military preparedness and the exigencies of a future mobilization.


[45] Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers. See id., at 160; id., at 158 ("Because of the combat restrictions, the need would be primarily for men, and women volunteers would fill the requirements for women"); House Hearings 19 (Rep. Holt). See also Hearings on S. 2294, at 1195 (Gen. Rogers).


[46] Most significantly, Congress determined that staffing noncombat positions with women during a mobilization would [453 U.S. 57, 82] be positively detrimental to the important goal of military flexibility.


[47] ". . . [T] here are other military reasons that preclude very large numbers of women from serving. Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant rotation of personnel is necessary. We should not divide the military into two groups - one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed." S. Rep. No. 96-826, supra, at 158.


[48] The point was repeated in specific findings, id., at 160; see also S. Rep. No. 96-226, supra, at 9. In sum, Congress carefully evaluated the testimony that 80,000 women conscripts could be usefully employed in the event of a draft and rejected it in the permissible exercise of its constitutional responsibility. See also Hearing on S. 109 and S. 226, at 16 (Gen. Rogers); 17 Hearings on S. 2294, at 1682. The District [453 U.S. 57, 83] Court was quite wrong in undertaking an independent evaluation of this evidence, rather than adopting an appropriately deferential examination of Congress' evaluation of that evidence.


[49] In light of the foregoing, we conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordingly



JUSTICE WHITE, with whom JUSTICE BRENNAN joins, dissenting.


[50] I assume what has not been challenged in this case - that excluding women from combat positions does not offend the Constitution. Granting that, it is self-evident that if during mobilization for war, all noncombat military positions must be filled by combat-qualified personnel available to be moved into combat positions, there would be no occasion whatsoever to have any women in the Army, whether as volunteers or inductees. The Court appears to say, ante, at 76-77, that Congress concluded as much and that we should accept that judgment even though the serious view of the Executive Branch, including the responsible military services, is to the contrary. The Court's position in this regard is most unpersuasive. I perceive little, if any, indication that Congress itself concluded that every position in the military, no matter how far removed from combat, must be filled with combat-ready men. Common sense and experience in recent wars, where women volunteers were employed in substantial numbers, belie this view of reality. It should not be ascribed to Congress, particularly in the face of the testimony of military authorities, hereafter referred to, that there would be a substantial [453 U.S. 57, 84] number of positions in the services that could be filled by women both in peacetime and during mobilization, even though they are ineligible for combat.


[51] I would also have little difficulty agreeing to a reversal if all the women who could serve in wartime without adversely affecting combat readiness could predictably be obtained through volunteers. In that event, the equal protection component of the Fifth Amendment would not require the United States to go through, and a large segment of the population to be burdened with, the expensive and essentially useless procedure of registering women. But again I cannot agree with the Court, see ante, at 81, that Congress concluded or that the legislative record indicates that each of the services could rely on women volunteers to fill all the positions for which they might be eligible in the event of mobilization.




[52] Of course, the division among us indicates that the record in this respect means different things to different people, and I would be content to vacate the judgment below and remand for further hearings and findings on this crucial issue. Absent that, however, I cannot agree that the record supports the view that all positions for which women would be eligible in wartime could and would be filled by female volunteers.


[53] The Court also submits that because the primary purpose of registration and conscription is to supply combat troops and because the great majority of noncombat positions must be filled by combat-trained men ready to be rotated into combat, the absolute number of positions for which women would be eligible is so small as to be de minimis and of no moment for equal protection purposes, especially in light of the administrative burdens involved in registering all women of suitable age. There is some sense to this; but at least on the record before us, the number of women who could be used in the military without sacrificing combat readiness is not at all small or insubstantial, and administrative convenience has not been sufficient justification for the kind of outright gender-based discrimination involved in registering and conscripting men but no women at all.


[54] As I understand the record, then, in order to secure the personnel it needs during mobilization, the Government cannot rely on volunteers and must register and draft not only to fill combat positions and those noncombat positions that must be filled by combat-trained men, but also to secure the personnel needed for jobs that can be performed by persons ineligible for combat without diminishing military effectiveness. The claim is that in providing for the latter category of positions, Congress is free to register and draft only men. I discern no adequate justification for this kind of discrimination [453 U.S. 57, 86] between men and women. Accordingly, with all due respect, I dissent.


JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.


[55] The Court today places its imprimatur on one of the most potent remaining public expressions of "ancient canards about the proper role of women," Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971) (MARSHALL, J., concurring). It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation. Because I believe the Court's decision is inconsistent with the Constitution's guarantee of equal protection of the laws, I dissent.


*** II




[56] The Government does not defend the exclusion of women from registration on the ground that preventing women from serving in the military is substantially related to the effectiveness of the Armed Forces. Indeed, the successful experience of women serving in all branches of the Armed Services would belie any such claim. . . . Congress has repeatedly praised the performance of female members of the Armed Forces, and has approved efforts by the Armed Services to expand their role. Just last year, the Senate Armed Services Committee declared:


[57] "Women now volunteer for military service and are assigned to most military specialties. These volunteers now make an important contribution to our Armed Forces. The number of women in the military has increased significantly in the past few years and is expected to continue to increase." S. Rep. No. 96-826, p. 157 (1980).


[58] Accord, S. Rep. No. 96-226, p. 8 (1979). 8 These statements thus make clear that Congress' decision to exclude women from registration - and therefore from a draft drawing on the pool of registrants - cannot rest on a supposed need to prevent women from serving in the Armed Forces. The justification for the MSSA's gender-based discrimination must [453 U.S. 57, 92] therefore be found in considerations that are peculiar to the objectives of registration.


[59] The most authoritative discussion of Congress' reasons for declining to require registration of women is contained in the Report prepared by the Senate Armed Services Committee on the Fiscal Year 1981 Defense Authorization Bill. S. Rep. No. 96-826, supra, at 156-161. The Report's findings were endorsed by the House-Senate Conferees on the Authorization Bill. See S. Conf. Rep. No. 96-895, p. 100 (1980). Both Houses of Congress subsequently adopted the findings by passing the Conference Report. 126 Cong. Rec. 23126, 23261 (1980). As the majority notes, ante, at 74, the Report's "findings are in effect findings of the entire Congress." The Senate Report sets out the objectives Congress sought to accomplish by excluding women from registration, see S. Rep. No. 96-826, supra, at 157-161, and this Court may appropriately look to the Report in evaluating the justification for the discrimination.




[60] According to the Senate Report, "[t] he policy precluding the use of women in combat is . . . the most important reason for not including women in a registration system." S. Rep. No. 96-826, supra, at 157; see also S. Rep. No. 96-226, supra, at 9. In reaffirming the combat restrictions, the Report declared:


[61] "Registering women for assignment to combat or assigning women to combat positions in peacetime then would leave the actual performance of sexually mixed units as an experiment to be conducted in war with unknown risk - a risk that the committee finds militarily unwarranted and dangerous. Moreover, the committee feels that any attempt to assign women to combat positions could affect the national resolve at the time of mobilization, a time of great strain on all aspects of the Nation's resources." S. Rep. No. 96-826, supra, at 157. [453 U.S. 57, 93]


[62] Had appellees raised a constitutional challenge to the prohibition against assignment of women to combat, this discussion in the Senate Report might well provide persuasive reasons for upholding the restrictions. But the validity of the combat restrictions is not an issue we need decide in this case. 9 Moreover, since the combat restrictions on women have already been accomplished through statutes and policies that remain in force whether or not women are required to register or to be drafted, including women in registration and draft plans will not result in their being assigned to combat roles. Thus, even assuming that precluding the use of women in combat is an important governmental interest in its own right, there can be no suggestion that the exclusion of women from registration and a draft is substantially related to the achievement of this goal.


[63] . . . [T] he majority concludes that women may be excluded from registration because they will not be needed in the event of a draft. 10


[64] This analysis, however, focuses on the wrong question. The relevant inquiry under the Craig v. Boren test is not whether a gender-neutral classification would substantially advance important governmental interests. Rather, the question is whether the gender-based classification is itself substantially related to the achievement of the asserted governmental interest. Thus, the Government's task in this case is to demonstrate that excluding women from registration substantially furthers the goal of preparing for a draft of combat troops. Or to put it another way, the Government must show that registering women would substantially impede its efforts to prepare for such a draft. Under our precedents, the Government cannot meet this burden without showing that a gender-neutral statute would be a less effective means of attaining this end.


* * * C


[65] Nothing in the Senate Report supports the Court's intimation that women must be excluded from registration because combat eligibility is a prerequisite for all the positions that would need to be filled in the event of a draft. The Senate Report concluded only that "[i] f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements." S. Rep. No. 96-826, p. 160 (1980) (emphasis added).




[66] All four Service Chiefs agreed that there are no military reasons for refusing to register women, and uniformly advocated requiring registration of women. The military's position on the issue was summarized by then Army Chief of Staff General Rogers: "[W] omen should be required to register for the reason that [Marine Corps Commandant] General Wilson mentioned, which is in order for us to have an inventory of what the available strength is within the military qualified pool in this country." Selective Service Hearings, at 10; see id., at 10-11 (Adm. Hayward, Chief of Naval Operations; Gen. Allen, Air Force Chief of Staff; Gen. Wilson, Commandant, Marine Corps).




[67] This review of the findings contained in the Senate Report and the testimony presented at the congressional hearings demonstrates that there is no basis for the Court's representation that women are ineligible for all the positions that would need to be filled in the event of a draft. Testimony about personnel requirements in the event of a draft established that women could fill at least 80,000 of the 650,000 positions for which conscripts would be inducted. Thus, with respect to these 80,000 or more positions, the statutes and policies barring women from combat do not provide a reason for distinguishing between male and female potential conscripts; the two groups are, in the majority's parlance, "similarly situated." As such, the combat restrictions cannot by themselves supply the constitutionally required justification for the MSSA's gender-based classification. Since the classification precludes women from being drafted to fill positions for which they would be qualified and useful, the Government [453 U.S. 57, 102] must demonstrate that excluding women from those positions is substantially related to the achievement of an important governmental objective.




[68] The Government argues, however, that the "consistent testimony before Congress was to the effect that there is no military need to draft women." Brief for Appellant 31 (emphasis in original).




[69] To be sure, there is no "military need" to draft women in the sense that a war could be waged without their participation. 15 This fact is, however, irrelevant to resolving the constitutional issue. 16 As previously noted, see supra, at 94-95, it is not appellees' burden to prove that registration of women substantially furthers the objectives of the MSSA. 17 Rather, [453 U.S. 57, 105] because eligibility for combat is not a requirement for some of the positions to be filled in the event of a draft, it is incumbent on the Government to show that excluding women from a draft to fill those positions substantially furthers an important governmental objective.


[70] I cannot agree with the Court's attempt to "interpret" the Senate Report's conclusion that drafting very large numbers of women would impair military flexibility, as proof that Congress reached the entirely different conclusion that drafting a limited number of women would adversely affect military flexibility. [453 U.S. 57, 109]






[71] The specific finding by the Senate Report was that "[i] f the law required women to be drafted in equal numbers with men, mobilization would be severely impaired because of strains on training facilities and administrative systems." S. Rep. No. 96-826, supra, at 160 (emphasis added). There was, however, no suggestion at the congressional hearings that simultaneous induction of equal numbers of males and female conscripts was either necessary or desirable. The Defense Department recommended that women be included in registration and draft plans, with the number of female draftees and the timing of their induction to be determined by the military's personnel requirements. See supra, at 100-101. 22 In endorsing this plan, the Department gave no indication that such a draft would place any strains on training and administrative facilities. Moreover, the Director of the Selective Service System testified that a registration and induction [453 U.S. 57, 111] process including both males and females would present no administrative problems. See 1980 Senate Hearings, at 1679 (Bernard Rostker); App. 247-248 (deposition of Bernard Rostker).




[72] I would affirm the judgement of the District Court.



Women and the Draft