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R, Rostker v. Goldberg,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 16 January 2021

Rostker v. Goldberg,

453 U.S. 57 (1981), argued 24 Mar. 1981, decided 25 June 1981 by vote of 6 to 3; Rehnquist for the Court, White (joined by Brennan) and Marshall (joined by Brennan) in dissent. In 1971, several men facing the draft for the *Vietnam War challenged male-only conscription on the basis of the *equal protection principle contained in the *Fifth Amendment’s Due Process Clause. The draft was discontinued and the case entered legal limbo for several years until 1980, when President Jimmy Carter reinstituted registration (although not actual conscription). The lawsuit was then revived, with Goldberg litigating on behalf of himself and all similarly situated males against Rostker, head of the Selective Service. On 18 July 1980, three days before the new draft registration was to begin, a federal district court declared the act unconstitutional and enjoined the government from requiring registration. Rostker immediately requested a stay pending *appeal, and Justice William J. *Brennan granted it. Registration began on time.

Rejecting Goldberg’s claims, the majority argued that judicial deference is at its peak when the Court, as here, is considering the combined (p. 871) executive-legislative power over *national security. The majority further held that the test of *“heightened scrutiny” articulated in *Craig v. Boren (1976) for measuring the constitutionality of *gender discrimination was satisfied because military flexibility was an important government goal. The exclusion of females from registration for a potential draft substantially furthered that goal, since women, unlike men, could not be rotated from combat into noncombat positions. The Court did not consider the possibility that women could occupy combat roles.

Justice Byron *White’s dissent read the legislative record differently, and he urged a remand for hearings on the relation between registering women and military flexibility. Justice Thurgood *Marshall’s dissent emphasized the distinction between registration for the draft and *conscription itself, insisting that the government had failed to demonstrate that excluding women from registration substantially furthered any important governmental interest. Neither dissent challenged the rule of excluding women from combat.

Leslie Friedman Goldstein