Opening combat jobs to women alters 1981 Supreme Court ruling on draft

By DAN LAMOTHE | The Washington Post | Published: December 8, 2015

WASHINGTON — A newly released analysis by the Pentagon states that the Defense Secretary Ashton Carter's decision last week to open all jobs in combat to female service members "further alters the factual backdrop" of a Supreme Court case that has exempted women from a military draft, raising the possibility that the Military Selective Service Act may change.

The two-page analysis states that how women are assigned in the military has changed since Rostker v. Goldberg, the 1981 case that addressed the issue. The nation's highest court considered the constitutionality of requiring only men to register for Selective Service, and found that because women were not allowed to hold combat jobs such as infantryman in the military, they were not required to register.

"The opening of all direct ground combat positions to women further alters the factual backdrop to the Court's decision in Rostker," states the analysis. "The Court in Rostker did not explicitly consider whether rationales underlying the statute would be sufficient to limit the application of the MSSA [Selective Service Act] to men. The Department will consult with the Department of Justice as appropriate regarding the issue."

The analysis does not take a position on whether the Selective Service Act should be amended to include women in any future draft. The unsigned document was posted online by the Defense Department over the weekend with other documents related to the decision to open all jobs to women. It comes following Carter's landmark announcement Thursday, in which he said all jobs will be opened to women who can meet the requirements beginning in 2016, after the services each submit a required plan by the end of the year on how they will implement the changes.

The current version of the Military Selective Service Act requires that nearly all men in the United States between the ages of 18 and 26 register, most within 30 days of turning 18. That includes non-U.S. citizens living in the United States, such as refugees, but women are entirely exempt.

The analysis notes that reality in the military has evolved several times since Rostker v. Goldberg in 1981. In 1994, for example, the Defense Department allowed women for the first time to fly combat missions in fighter jets and other aircraft while continuing to ban women from assignment to units in direct ground combat. More recently, the Pentagon rescinded in February 2012 a ban on men and women being co-located while serving in specific assignments in leadership at the battalion level and above.

Most significantly before last week, then-Defense Secretary Leon Panetta decided in January 2013 decision to eliminate the 1994 Direct Combat Definition and Assignment Rule, which kept women out of ground combat jobs. Panetta's decision gave the Pentagon until this fall to review how to better integrate women following a lengthy period of research in each of the services.

In rescinding the policy in 2013, Panetta underscored the contributions - and loss of life - of women who had served in Iraq and Afghanistan in the U.S. military despite the combat exclusion rule being in place. At least 169 women have been killed in the two wars, according to a Washington Post count.

The Selective Service Act already has been challenged in court since the 2013 decision to repeal the ban on women serving in direct combat roles. In one lawsuit, a New Jersey high school girl argued that the system was discriminatory because it did not consider women for the draft. In another, the non-profit National Coalition for Men alleged that men were being discriminated against. The latter case is expected to be reviewed on Tuesday by the U.S. Court of Appeals for the 9th Circuit in Pasadena, Calif.

The Pentagon is required by U.S. law to submit a detailed analysis of legal implications if more jobs are opened to women when it comes to the Selective Service Act. White House Press Secretary Josh Earnest said on Friday that the Obama administration will work with Congress to look at the analysis and determine if any additional reforms or changes to the act are necessary.

At the Pentagon, Carter said Thursday that he did not know how the issue would be resolved, but acknowledged that the Selective Service issue is a "matter of legal dispute right now." He added that "unfortunately," it is the subject of ongoing litigation.

Sen. John McCain, R.-Ariz., and Rep. Mac Thornberry, R.-Texas, the chairmen of the Senate and House armed services committees, said in a joint statement Thursday that they looked forward to receiving the Pentagon's "views on any changes to the Selective Service Act that may be required as a result of this decision."