Rostker v. Goldberg (1981)

In 1980, Robert Goldberg challenged the U.S. draft registration policy by bringing suit against Bernard Rostker, the director of the Selective Service System. When Goldberg won in federal court, Rostker appealed to the Supreme Court.

In a 6-3 decision, the Court ruled that it was constitutional to register only men for the draft. Justice William Rehnquist wrote the majority opinion. He noted that “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.”

Congress specifically determined that in wartime, the primary purpose of a draft would be to provide 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 went on to say: “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.”

Justices Byron White and Thurgood Marshall each wrote dissents arguing that Congress had improperly assumed there would be no need to draft people for non-combat positions. Justice White wrote: “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.” Justice Marshall added that “the Government must show that registering women would substantially impede its efforts to prepare for such a draft.”

Social and political developments continue to affect the role of women in the armed forces. At the time Rostker was argued, about 150,000 women volunteers were on active military duty. The Persian Gulf War, in which 35,000 women served, demonstrated that the increased use of high technology military equipment had reduced the significance of physical strength. In 1991, Congress repealed the 1948 law barring women from serving on combat aircrews. This change opened up military career paths that had previously been closed to women. A Newsweek poll conducted during the Gulf War showed that about 50 percent of Americans favored including women in the draft.

In 1992, the Presidential Commission on the Assignment of Women in the Armed Forces recommended that women not be required to register for or be subject to the draft. A 1994 Department of Defense report observed: “Because of this change in the makeup of the Armed Forces…much of the congressional debate which, in the court's opinion, provided adequate congressional scrutiny of the issue…would be inappropriate today.” The report concluded that it was not necessary to register or draft women, but noted that “the success of the military will increasingly depend upon the participation of women.”