Rostker v. Goldberg, 453 U.S. 57; 101 S. Ct. 1; 69 L. Ed. 2d 478 (1981)

Facts—The Military Selective Service Act authorized the president to require the registration for possible military service of males but not females. In 1980, President Jimmy Carter reactivated the registration process for both males and females, but Congress allocated only those funds necessary for the men. Three men brought suit claiming that the act’s gender-based discrimination violated the due process clause of the Fifth Amendment to the Constitution.

Question—Does the Military Selective Service Act violate the Fifth Amend- ment?

Decision—No.

Reasons—J. Rehnquist (6–3). “Congress is a co-equal branch of government whose members take the same oath we do to uphold the Constitution.

. . . This Court has consistently recognized Congress’s ‘broad constitutional power’ to raise and regulate armies and navies.” Just as Congress’s scope of power in this area is broad, “the lack of competence on the part of the courts is marked.” While the Court does not abdicate its responsibility to decide constitutional questions, “the Constitution itself requires such deference to congressional choice.” This case “is quite different from several of the gender- based discrimination cases . . . and the decision to exempt women from registration was not the ‘accidental byproduct of a traditional way of thinking about women.’ The purpose of the registration, therefore, was to prepare for a draft of combat troops. Women as a group . . . unlike men as a group, are not eligible for combat.       Congress’s decision to authorize the registration

of only men, therefore, does not violate the due process clause.”

J. White dissented on the basis that the record indicated that a need might develop for both combat and noncombat positions.

J. Marshall argued that excluding women from a fundamental obligation of citizenship was inconsistent with the equal protection component of the Fifth Amendment.