If the challengers of all-male draft registration win their case at the Supreme Court, a fitting place for a monument to commemorate the victory would be the Honk and Holler carryout in Stillwater, Okla.
It was there in 1972 that a teen-age college student couldn't buy beer because he wasn't 21 and, with the owner of the Honk and Holler, he sued the state because women between 18 and 21 could buy it. He won his case at the U.S. Supreme Court. Though only a watery brew was in controversy (3.2 percent beer), the court's 1976 ruling was strong indeed.
It began a quiet revolution in the treatment of women in the law, forcing governments at all levels to drop numerous sexual distinctions and moving the courts just a step shy of their own Equal Rights Amendment The case, Craig vs. Boren, is now central to the challenge to the exclusion of women from the draft, and when the lawyers in the draft case, Rostker vs. Goldberg, appear tomorrow afternoon for oral arguments at the court, it could be said that the Honk and Holler brought them there.
There had been some changes in the laws governing equality of the sexes before 1976. But they were small, with pluralities and uncertain majorities at the Supreme Court. On the whole, governments around the country could still differentiate between men and women as they pleased. Sometimes the laws discriminated against women, sometimes against men.
Because women were thought to be too fragile, some states could and did prohibit them from working as bartenders. Because men were more dangerous, other states had laws that treated them as adults at the age of 16 when charged with a crime while girls received gentler treatment, as juveniles, until they were 18.
When defending its law permitting young women, but not young men, to buy beer, Oklahoma cited "traffic safety." Women, it said, were less inclined to drive while drunk.
A group of male Oklahoma State University students joined the Honk and Holler in contesting the restriction. On Dec. 21, 1976, the court ruled. The Constitution, it said, requires equal protection of the laws. The requirement is "not to be rendered inapplicable by . . . loose-fitting generalities concerning the drinking tendencies of aggregate groups.
". . . To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives."
That language had been used before but never so decisively. This time, Justice William J. Brennan Jr. mustered five colleagues behind it and it became law.
It was not the sort of declaration that is carved on public buildings. It was murky and subjective. It said there were times governments could single out women for different treatment and times they couldn't. It fell far short of the answer women's rights lawyers had sought: a new protection equivalent to what the courts have given blacks.
But blacks were specifically protected by amendments to the Constitution, the courts said; the women settled for the "intermediate" protection of the new language.
Despite its limitations, many gender distinctions began to fall, Judge John Sirica, for example, struck down a Navy prohibition on assigning women to sea duty. It was, he said, "traceable" to a presumption "that all women are unqualified to discharge any of the duties performed on any of the Navy's ships." The Supreme Court overturned an Alabama law imposing alimony obligations on husbands but not wives. "Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the 'proper place' of women and their need for special protection," the justices said.
Last July, a three-judge panel in Philadelphia, citing Craig vs. borden, declared the exclusion of women from draft registration unconstitutional.
While the political debate now rages around the role of women in American society, the legal debate, in the briefs and arguments tomorrow, centers on how "classifications by gender must serve important government objectives. . . ."
In defense of all-made draft registration, the government's first line has been to offer the justices something they are always seeking: a way out.
Government lawyers in their main brief are now arguing that there is in fact no gender distinction in the exclusion of women from the draft. The draft excludes "combat ineligibles," the government says, be they lame, blind, men or women.
If the court accepts the argument, there will be no need for the justices to consider whether the all-male draft is related or substantially related to any governmental objective, important or otherwise. If there is no gender distinction, there is no case.
The lawyers on the other side (outraged because they say the government had not made this argument in the past) have responded that the case has nothing to do with who gets drafted and who is eligible for combat. It is a registration case, they argue, and "thousands of combat-ineligible males are registered"; any disabilities preventing conscription are considered after the compulsory signup.
The government's next argument, in case it loses this round, is that the Craig vs. Boren language should not apply in cases involving congressional determinations about military matters. In those sensitive cases, a gender distinction need only be justified by some reason, not a "substantial" reason. In support of that argument, the government is using a 1975 Supreme Court ruling (Schlesinger vs. Ballard ) allowing the Army to set easier promotion criteria for women than for men.
The draft-law challengers have countered that registration is not a military matter, that because it imposes a requirement on civilians it is a civilian affair, to be judged by civilian legal standards.
The third level of debate will be relevant to the court only if it gets past the first two. If the court believes that there is a gender distinction and that the "substantial relationship" approach of Craig vs. Boren should be applied even though the military is involved, Solicitor General Wade McCree has told the court that the exclusion of women can still pass muster.
Congress excluded women when it approved draft registration in 1980 because it was preparing for a military emergency, according to this argument. Women, being ineligible for close combat, would not be needed as much as men in such circumstances. "The male-only registration requirement," the government says, "is closely and substantially related to the important government interest of responding to a military emergency with maximum speed and efficiency."
Lawyers for the other side say the exclusion was based on outmoded stereotypes of women prevalent in 1948, when Congress enacted the selective service law. "When it told women in 1948 that the nation's defense was a mission for men only," lawyers Donald Weinberg, Isabelle Katz Pinzler and Laurence H. Tribe have told the court, "Congress unthinkingly belittled half our people -- and unfairly burdened the other half . . . and starkly divided our daughters from our sons and does so to this day on a matter vital to both and on the basis of sex alone."