Rostker v. Goldberg

LOCATION: Congress

DOCKET NO.: 80-251
DECIDED BY: Burger Court (1975-1981)

CITATION: 453 US 57 (1981)
ARGUED: Mar 24, 1981
DECIDED: Jun 25, 1981

Donald L. Weinberg - Argued the cause for the appellees
Wade H. McCree, Jr. - on behalf of the appellant

Facts of the case

After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court.


Did the MSSA's gender distinctions violate the Due Process Clause of the Fifth Amendment?

Media for Rostker v. Goldberg

Audio Transcription for Oral Argument - March 24, 1981 in Rostker v. Goldberg

Warren E. Burger:

We will hear arguments next in Rostker v. Goldberg.

Mr. Solicitor General.

Wade H. McCree, Jr.:

Mr. Chief Justice, and may it please the Court:

This case presents the question whether the Military Selective Service Act by providing for a male-only registration and classification for possible induction into the Armed Services violates the equal protection component of the Fifth Amendment by invidiously discriminating against males.

This is an appeal from the judgment of a three-judge court determining that the male-only registration provision of the Military Selective Service Act offends the Constitution and enjoining proceedings pursuant to that Act.

There is no substantial dispute about the facts giving rise to this controversy.

Since 1948 the Military Selective Service Act has provided for the registration of males between the ages of 18 and 26 and their classification and induction into the Armed Services.

Potter Stewart:

Do all males in that age group have to register?

Wade H. McCree, Jr.:

All male citizens and all male resident aliens; only aliens not in non-immigrant status.

Potter Stewart:

But all males including ministers and--

Wade H. McCree, Jr.:

All of them register, Mr. Justice Stewart.

The classification system provides for exemptions and deferments.

This condition continued until 1973 when the Congress decided to experiment with an all-volunteer Army and the conscription provision of the statute was removed.

However, the registration and classification provisions continued, as they do today, in effect.

But in 1975 the President decided to discontinue the classification of persons under the Military Selective Service Act and this was the condition until 1980 when the President of the United States sent a message to the Congress indicating his desire because of foreign policy and military exigencies to reactivate the registration procedures and he also requested them to extend the scope of the requirements for registration and classification to include females.

The three-judge case which was--

William J. Brennan, Jr.:

--Might I ask, Mr. Solicitor General, is the registration statute explicit as to the permissible uses of the registration lists?

Wade H. McCree, Jr.:

--It is not.

It doesn't forbid the list for any purposes other than that the stated purposes, but it states the purpose for which it would be used.

William J. Brennan, Jr.:

Well, what I'm getting at, of course, is, may the registration lists be used, for example, to staff nonmilitary jobs?

Wade H. McCree, Jr.:

It may--

William J. Brennan, Jr.:

What I'm thinking about is during the war, do you recall, when not we, but our allies had all kinds of registration lists which they then used to bring women into war industries.

Wade H. McCree, Jr.:

--If you're inquiring for service other than within the Armed Services, my understanding is that it does not.

William J. Brennan, Jr.:

It does not.

Wade H. McCree, Jr.:

It's for induction into the military services.

It's not a universal service act, as I understand it.

Byron R. White:

Except, I suppose, that people who are in certain classifications might be assigned outside the military?

Wade H. McCree, Jr.:

That was certainly done under the Act and I assume it was done lawfully.

Noncombatant service, within the service, and other service related to the national welfare, I think, was the rubric that was used during World War II, the Korean War, and the Southeast Asian hostilities.

The President requested the Congress to shift funds from the Department of Defense to the inactive Selective Service machinery to reactivate it, to commence the registration of males and females, as he requested, under this message that he sent.