Women and men must be treated equally in most cases, but not necessarily when the national security is at stake. In the most celebrated of its cases this term, the US Supreme Court this week put its stamp of approval on all-male registration for the military. As a result, millions of young men will continue to register for a possible draft, while women will be exempt.
Citing the need for special "deference" in military matters, the 6-to-3 majority on the high court bowed to Congress which has flatly refused to include women in registration.
The court "cannot ignore Congress's broad authority conferred by the Constitution to raise and support armies," wrote Associate Justice William H. Rehnquist for the majority in a ruling announced June 25.
The all-male registration is not a case of arbitrary discrimination, said Justice Rehnquist, noting that women already are banned from combat by law. "Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft," he said in the ruling.
The decision is expected to have a major impact on civil liberties in the military, as well as women's rights in general and the status of women in the military.
David Landau of the American Civil Liberties Union (ACLU) called the ruling "tragic" and a "major setback" for both civil rights and women's rights. He said that it "continues a trend" in which the court defers to military judgments in cases including free speech and the right to counsel.
The ACLU helped bring the draft suit, known as Rostker v. Goldberg, 10 years ago when the United States was still fighting in Vietnam. A group of antiwar protesters charged that they were denied equal protection under the Fifth Amendment of the US Constitution because they had to register for the draft but women did not.
When the war and the draft ended, the suit almost died, but it was revived a year ago when President Carter reinstated draft registration.
Last July a three-judge federal panel in Philadelphia declared the all-male registration to be unconstitutional. The high court ruling this week reverses that decision.
In an early response the Pentagon voiced its satisfaction with having its Selective Service System upheld.
A former top Defense Department official predicted that the ruling signals a retreat on women in the military. Kathleen M. Carpenter, a lawyer who was deputy assistant secretary of defense in the Carter administration, said that there is already a "reaction to having women in some nontraditional jobs."
Some 150,000 women volunteers now serve in the armed forces. They have proved "better, smarter, and more reliable" than their male counterparts, said Carpenter. She said female recrutis also have had problems, especially concerning pregnancies and lack of upper-body strength for some jobs.
But if "the Supreme Court allows the Army to make its own judgments," she said it would open the door for restricting blacks and Hispanics as well as women in the military.
Former West Point Prof. William J. TAylor Jr., a retired Army colonel, applauded the ruling, saying it would have been "damaging" if the court had required both sexes to register.
"There is a question of whether or not we're capable of absorbing the number of women we have now," said Colonel Taylor, who now is at the Georgetown Center for Strategic and International Studies.
Associate Justice Thurgood Marshall, dissenting from the ruling, charged that the government failed to prove it needed to exclude women in its military registration. Nothing in the record shows that "drafting a limited number of women" would burden the military, wrote Justice Marshall, who charged his colleagues with pushing back the Constitution "to accommodate an act of Congress."