U.S. law upholds one last legal distinction between the obligations of citizenship for women and men: the requirement that men, but not women, register for Selective Service.
Still, if women and men do not bear equal obligations as citizens, they are not equal.
That distinction could soon end. In January 2021, strange bedfellows — the National Coalition for Men and the American Civil Liberties Union — petitioned the Supreme Court to overturn its 1981 Rostker v. Goldberg decision. The case upheld the exclusion of women from Selective Service because the military prohibited them from combat positions. Because the military opened all combat positions to women in 2015, the plaintiffs argue, there is no longer a legal justification for excluding women from registration. Doing so amounts to unconstitutional sexual discrimination. The court has asked the Biden administration to weigh in by April 14.
It is hard to predict what the administration or the court will do. And regardless of what it does, Congress has the ultimate power to rework, dismantle or reimagine the Selective Service System.
Yet the national mood appears to be coalescing in favor of women’s registration. In March 2020, the congressionally created National Commission on Military, National, and Public Service advised that “the time is right” to include women in Selective Service registration. In an amicus curiae brief, several prominent generals and admirals insisted that “the categorical exclusion of women from the selective service is inimical to the Nation’s security interests.”
And including women would not be a massive departure from the past. In fact, registering women for potential military service — even drafting them if necessary — has long had widespread support from across the political spectrum, both in times of war and peace.
The United States nearly drafted women during World War II. A desperate need for nurses in the waning days of the Allies’ push through France and Germany in 1945 led President Franklin D. Roosevelt to propose a draft of female nurses. The American public overwhelmingly supported the call. Eventually, 98 percent of Democrats and 78 percent of Republicans in the House voted to pass a bill to draft nurses. As talk of the draft prompted a wave of enlistments, the bill stalled in the Senate, and Germany’s surrender a few weeks later rendered such a draft unnecessary.
Support for drafting women wasn’t solely a byproduct of the desperate circumstances of World War II. Two and a half decades later, in 1970 after Rep. Martha Griffiths (D-Mich.) forced the lagging Equal Rights Amendment out of committee, Congress understood the amendment to require women’s registration. ERA proponents insisted that registering women for Selective Service would remove critical distinctions between men and women and that equal rights required equal obligations. As Rep. Louise Day Hicks (D-Mass.) stated on the House floor in October 1971, “there is no reason women should not carry equally the burdens as well as the rights of full citizenship.”
Opponents shared this interpretation of the amendment. They insisted, however, that women and men should not bear equal military obligations. Sen. Sam Ervin (D-N.C.) repeatedly tried to defeat or undermine the ERA by painting registration as a one-way ticket to women’s violent deaths in combat and the end of separate gender roles.
Yet in the fall of 1971 and spring of 1972, both houses of Congress overwhelmingly rejected attempts to limit the ERA’s reach, including its effect on women’s military service. When Congress sent the ERA to the states for ratification in March 1972, it fully intended equal rights to incur equal obligations, including conscripted military service for women.
That possibility never came to be. The following year, President Richard M. Nixon fulfilled a campaign promise to end conscription, and in 1975, his successor, President Gerald Ford, eliminated the requirement for men to register.
By then, the political winds had shifted considerably, and social conservatives were gaining steam, influence and power. The New Right gained ground in part by demanding a retraction of the political and social gains women had made in the 1960s and early 1970s. Right-wing politicians and activists energized their supporters with promises of a return to a mythical past in which men and women knew their God-ordained place.
Even without an active Selective Service System, Phyllis Schlafly’s STOP ERA campaign and Eagle Forum mobilized opposition that stopped the ERA — which had once seemed a sure bet for ratification — in its tracks in part by equating the prospect of drafting women with the imminent demise of traditional gender roles and the family.
Those groups mobilized again in 1980 when, in the wake of the Soviet invasion of Afghanistan, President Jimmy Carter announced his intention to resurrect Selective Service and require women to register for noncombatant service. Carter pushed the proposal as a staunch supporter of the languishing ERA, even though he knew Congress would almost certainly refuse to sign off on it. Although it had wide-ranging support from organizations as varied as the National Organization for Women and the American Legion, few proponents vehemently pushed to register women. Coming so soon after the Vietnam War, many opposed registration and conscription of men or women on principle but insisted that women be included in any new compulsory registration or service.
When the House Armed Services Committee debated Carter’s proposal, opponents successfully shifted the discussion to a fight over women in combat. Ignoring the realities of women’s military service, opponents stoked fears that registration would erase all gender differences between men and women. As a witness for Schlafly’s Coalition Against Drafting Women put it, “We don’t want our daughters treated like men.”
The committee conflated registration and an actual wartime draft, disregarded the fact that registration provided a pool of potential personnel for both combat and support positions and erroneously insisted that all conscripts would be sent straight into combat. In the end, Carter’s proposal died in committee — a signal of how much the tide had turned in less than a decade — and the following year, the Supreme Court upheld women’s exclusion from Selective Service.
Much has changed in the 40 years since. If the nation continues to uphold male-only registration for military service, it won’t be because the military does not want or need women’s service. Rather, in 2021, women make up nearly 17 percent of the active-duty armed forces. They have successfully integrated all military positions, including combat, and have become a crucial part of the volunteer American force — even as some outspoken critics continue to decry the feminization of the military. And their service has not brought about the parade of horribles about which opponents warned.
Yet those opponents continue to trot out the same arguments that proved successful in the mid- to late 1970s. Their arguments — then and now — are based on rigid understandings of women’s and men’s proper roles, roles that have always been permeable and are increasingly undefined. Registering men and not women would simply perpetuate an inequality rooted in a long history of treating women as less than equal.