The Supreme Court has deferred to Congress in allowing male-only registration for a potential draft. Now the new Congress ought to defer to a divided public opinion -- as well as a divided court -- and reexamine whether this is the best way to serve individual justice and national interest.
To call for such reexamination is not to prejudge its proper outcome. It is simply to recognize that this 6-3 court decision did not fully clear the air. Congress cannot be expected to resolve the disagreement within the court over whether the ruling was consistent with the Constitution's guarantee of equal protection of the laws. But Congress should be expected to ensure that its own constitutional authority to regulate te armed forces, which the court majority cited, be exercised as effectively as possible.
In the event of mobilization there would be a need both to supply the appropriate personnel for the armed services and to foster the national morale to support their efforts. The question is whether these purposes would be better served by sidestepping for by staying abreast of today's efforts to curb sex discrimination in all other federally funded activities as well as in many private institutions. The reason for these efforts is not only simple justice or obedience to law, important as these are, but a recognition that valuable human resources can be overlooked or left undeveloped if individuals are excluded from consideration simply because of their gender.
The armed forces have longstanding programs to combat discrimination that has usually worked to the disadvantage of women in uniform though sometimes against men. The Pentagon supported extending nondiscrimination to the selective service registration process when Congress was considering President Carter's proposal for registration of both men and women.
The government has estimated that, should mobilization be required, two-thirds of the demand on the induction system would be for combat skills. Assuming that women continue to be excluded from combat, could the best available people for the remaining, noncombat jobs be assured without including women as well as men on the universal registration lists? Obviously not, unless any representative of one sex is seen as more capable than every representative of the other. Nevertheless, Congress could decide that other considerations outweigh the personnel-selection advantages of a widened pool produced by registration of both sexes.
The Supreme Court majority seems to have concluded that Congress wanted all noncombat positions to be occupied by combat-ready personnel -- therefore, men. Dissenting justices dispute this interpretation. How does the new Congress, with its high concern for strong defense preparation, view the omission of half of the potentially valuable noncombat personnel from registration simply because they are women?
Apart from personnel considerations, there remains the question of citizen morale and solidarity in support of a mobilization effort. As the Vietnam period of conscription in dicated, a public sense of unfairness in the draft can be divisive. The case decided by the Supreme Court was first brought by men on grounds of sex discrimination. But women's groups have been more vocal than men in deploring the ruling that lets male-only registration stand, while many individuals of either sex have applauded it.
Some argue that it is reasonable not to require equal national obligations from women until they have achieved equal rights. On the other hand, some argue that requiring equal obligations would enhance respect for women and thus hasten the achievement of rights.
Tradition is invoked to maintain the roles of men as protectors and women as the protected who assume sufficient national obligation by preserving homes and families Tradition is challenged by assertions that even combat jobs should be allocated according to individual capacity rather than gender. There is also the view that to require female as well as male participation is selective service could contribute to an unfortunate "militarization" of America.
Which of such arguments ought to prevail if national morale and security are to be bolstered rather than undercut should the need for mobilization arise? These are matters that Congress has the opportunity to clarify -- before the necessities of any future crisis -- now that the Supreme Cou rt has left the draft- registration issue to Capitol Hill.