Rostker v. Goldberg

• Author: Jeffrey Lehman, Shirelle Phelps

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A U.S. Supreme Court decision, Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981), upheld the constitutionality of a male-only draft registration law enacted by Congress in 1980. Emphasizing its traditional deference to Congress in the areas of military affairs and national defense, the Court refused by a vote of 6?3 to apply PRECEDENT that might have invalidated the law because of gender discrimination. Even the dissenters, however, did not challenge the right of Congress to exclude women from combat.

Rostker v. Goldberg actually began years before Congress enacted the Military Selective Service Act (MSSA) (50 App. U.S.C.A. § 451 et seq.) in 1980. In 1971, during the last part of the VIETNAM WAR, Robert Goldberg and several other men challenged the male-only draft policy, arguing that EQUAL PROTECTION of the laws, as guaranteed by the FIFTH AMENDMENT, had been violated. When Congress discontinued military CONSCRIPTION in 1972, the lawsuit became inactive, but it was not dismissed. It was revived in 1980 when Congress, acting at the request of President JIMMY CARTER, revived the registration process. Carter was concerned about the Soviet Union's invasion of Afghanistan and believed that the government had to be ready to draft soldiers if the situation warranted it.

In his proposal to Congress, Carter asked for the authority to register both men and women. Congress refused to allocate funds to register women but did fund the registration of males. Carter signed MSSA, and on July 2, 1980, he ordered the registration of specified groups of young men pursuant to the authority conferred by Section 3 of the act. Registration was to commence on July 21, 1980.

At that point Goldberg's lawsuit took on new life and became a CLASS ACTION lawsuit. A

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three-judge panel in the U.S. District Court for the Eastern District of Pennsylvania held a hearing on the plaintiffs' claims against Bernard Rostker, director of the SELECTIVE SERVICE SYSTEM, the agency that administers military registration. The plaintiffs again asserted that the law violated equal protection. The panel agreed, declaring it unconstitutional three days before registration was to start. Rostker requested that the court's order be stayed (temporarily lifted) pending appeal. Justice WILLIAM J. BRENNAN JR. granted the stay, allowing registration to proceed.

In his majority opinion, Justice WILLIAM H....