Credence Clearwater Revival is going to have to change the lyrics to its 1969 song, Fortunate Son. The song was a condemnation of how the connected could avoid the draft, could avoid going to Vietnam, could avoid dying in Southeast Asia for a war they neither understood nor supported. But then, it was just boys who were drafted to fight.
Now, it’s just boys who, upon reaching their 18th year, have to register with Selective Services for the draft. No, we don’t have an active draft, but if needed, the mechanism exists. Male privilege reared its ugly head.
In 1981, in Rostker v. Goldberg, the Supreme Court rejected a sex-discrimination challenge to the registration requirement, reasoning that it was justified because women could not at that time serve in combat.
“Since women are excluded from combat service by statute or military policy,” Justice William H. Rehnquist wrote for the majority, “men and women are simply not similarly situated for purposes of a draft or registration for a draft.”
But that could soon change.
In 2019, Judge Gray H. Miller, of the Federal District Court in Houston, ruled that since women can now serve in combat, the men-only registration requirement was no longer justified. A unanimous three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that “the factual underpinning of the controlling Supreme Court decision has changed.” But it said that only the Supreme Court could overrule its own precedent.
Women can serve. Women can fight in combat. Women enlist in the armed forces and serve with honor and distinction, but they do so as a matter of choice. The ACLU seeks to eliminate that choice.
Ria Tabacco Mar, who holds the position at the A.C.L.U. that Justice Ginsburg once had, said the Frontiero decision was proof that sex discrimination by the government without good reason should be unlawful in any part of society. Treating the military differently, she said, “would be a huge disservice to Justice Ginsburg’s legacy and the jurisprudence she created.”
There is little doubt that the argument is sound and correct. Heck, it’s even principled. But then, who in their right mind would want to make a group amenable to being drafted to fight and die in war if they didn’t have to?
The government has not drafted anyone since the Vietnam War, and there is no reason to think that will change. The challengers say that is a reason for the court to act now, before a crisis arises.
Will there be another “crisis” that demands the drafting of young people between the ages of 18 and 26? History suggests there will, as war seems to be one of those things that invariably happen, although the nature of warfare has changed such that ground troops aren’t as central to modern tactics of engagement. Still, they’re needed and used, and circumstances may require a far more bodies than volunteer.
There is an odd hope that requiring women to register for the draft will cause a rethinking of the draft itself.
“Should the court declare the men-only registration requirement unconstitutional,” their brief said, “Congress has considerable latitude to decide how to respond. It could require everyone between the ages of 18 and 26, regardless of sex, to register; it could rescind the registration requirement entirely; or it could adopt a new approach altogether, such as replacing” the registration requirement “with a more expansive national service requirement.”
Indeed, it could require every able-bodied citizen to put in a few years of military services as well, but there is no reason to think it would do anything other than add women to the registration requirement now in place for men. Some former military officers have backed the ACLU as amici.
“Including women in the Selective Service would double the pool of candidates available to draft,” their supporting brief said, “raising the overall quality of the conscripted force and enabling the nation to better meet its military needs.”
Other former military officers have said aloud the problematic detail.
The brief said that Congress rather than the court should decide who must register. It added that the challengers “also fail to address the elephant in the room: Men, as a group, are stronger, bigger, faster and have greater endurance than women as a group.”
Should there be a crisis and need for the draft, would it matter if half our GIs were women who were up against an army of men? Recognizing that it’s impolitic to distinguish the physical differences between males and females, there remains that biological reality that can be called a “social construct” all day long, but won’t win in hand-to-hand combat.
Ms. Mar questioned the idea that women were less qualified to serve. “The notion that modern warfare depends on brute strength,” she said, “is outdated and inaccurate.”
To some extent, this is true, as modern warfare is more about drones and planes dropping bunkerbuster bombs than trenches. But it doesn’t necessarily preclude ground troops in combat, either. If that’s where GI Jane ends up, screaming “this is outdated” at the brute trying to kill her isn’t likely to work.
The argument that women should be required to register for the draft just as men seems remarkably obvious at this point, given the combination of arguments favoring equality and arguments diminishing claims of physical differences that would serve as a limiting principle. And yet, the question unanswered is why would anyone want to make it easier to be drafted if they didn’t have to?
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