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KenDckey -> RE: Drafting Women (12/8/2015 11:47:28 AM)
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In 1918, the Supreme Court ruled that the World War I draft did not violate the United States Constitution in the Selective Draft Law Cases. The Court summarized the history of conscription in England and in colonial America, a history that it read as establishing that the Framers envisioned compulsory military service as a governmental power. It held that the Constitution's grant to Congress of the powers to declare war and to create standing armies included the power to mandate conscription. It rejected arguments based on states' rights, the 13th Amendment, and other provisions of the Constitution.
Later, during the Vietnam War, a lower appellate court also concluded that the draft was constitutional. United States v. Holmes, 387 F.2d 781 (7th Cir.), cert. denied, 391 U.S. 936 (1968).[80] Justice William O. Douglas, in voting to hear the appeal in Holmes, agreed that the government had the authority to employ conscription in wartime, but argued that the constitutionality of a draft in the absence of a declaration of war was an open question, which the Supreme Court should address.
During the World War I era, the Supreme Court allowed the government great latitude in suppressing criticism of the draft. Examples include Schenck v. United States, 249 U.S. 47 (1919)[81] and Gilbert v. Minnesota, 254 U.S. 325 (1920).[82] In subsequent decades, however, the Court has taken a much broader view of the extent to which advocacy speech is protected by the First Amendment. Thus, in 1971 the Court held it unconstitutional for a state to punish a man who entered a county courthouse wearing a jacket with the words "Fuck the Draft" visible on it. Cohen v. California, 403 U.S. 15 (1971).[83] Nevertheless, protesting the draft by the specific means of burning a draft registration card can be constitutionally prohibited, because of the government's interest in prohibiting the "nonspeech" element involved in destroying the card. United States v. O'Brien, 391 U.S. 367 (1968).[84]
In 1981, several men filed lawsuit in the case Rostker v. Goldberg, alleging that the Military Selective Service Act violates the Due Process Clause of the Fifth Amendment by requiring that men only and not also women register with the Selective Service System. The Supreme Court upheld the act, stating that Congress's "decision to exempt women was not the accidental byproduct of a traditional way of thinking about women", that "since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men therefore does not violate the Due Process Clause", and that "the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need, rather than 'equity.'"[85]
The Rostker v. Goldberg opinion's dependence upon the existence of certain government "policies", which by definition have no force of law much less any constitutional weight, has garnered renewed scrutiny since the Department of Defense announced its decision in January 2013 to do away with most of the federal policies which have kept women from serving in combat roles in ground war situations. Both the U.S. Navy and the U.S. Air Force had by then already opened up virtually all positions in sea and air combat to women.
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