By midsummer the United States should know whether one of its oldest traditions will fall and whether one of the greatest concerns of the anti-Equal Rights Amendment forces will be fulfilled. The Supreme Court is expected to rule in June or July on a case challenging exclusion of women from the military draft.
The high court agreed Dec. 1 to hear arguments in a case that stems from the Vietnam war era. Last July 18, a panel of three federal judges ruled in Philadelphia that the males-only draft is unconstitutional. That was just 16 days after President Carter ordered some 4 million men aged 19 to 20 to register for a possible future draft.
The Philadelphia ruling has not taken effect because of a stay ordered by Supreme Court Justice William Brennan. Now, the full court is to hear arguments in the case early next year.
Putting women into combat is not at issue, since they would only be drafted for noncombat roles.
The challengers of the draft law include the American Civil Liberties Union and a number of men of draft age. US government lawyers will defend the status quo.
Although the Supreme Court has been chipping away at sex discrimination during the past decade, the challenge to the draft could be the most far-reaching case yet. It is likely to be the most publicized of the current term.
During the past five years, the Supreme Court has developed guidelines for judging whether sex bias is constitutionally allowed or not. Laws can discriminate if the purpose is to serve "important" governmental objectives or "compelling" governmental interests, and if there is a "reasonable relationship" to a constitutional governmental function.
In one of several ironies connected with the case, it actually originated as a legal attack on the Vietnam war in 1971. The sex discrimination charge was but one of many charges. As that war wound down, the case almost faded away. But it reappeared soon after the courts began taking a stand against sex bias and the military began actively recruiting women, and just as the president reinstated registration for the draft.
In another irony, the challengers are using statements from the Carter administration to help prove that drafting women would help the military. In spring of 1980, the President tried to convince Congress that women should be included in the draft. Deputy Assistant Attorney General Lawrence Sims told a Senate subcommittee that the draft law, which dates back to 1948, had a history "replete" with sex stereotypes.
Attorneys for the government now argue that the dominant objective of a draft is to raise an army speedily for combat service. Including women, who are excluded from combat, in the pool of registrants "would create monumental strains on the training system, would clog the personnel administration and support systems needlessly," according to the government's legal brief.
Further, the government attorneys argue that Congress turned down the idea of drafting women, citing the need for recruits in infantry, armor, combat engineering, and other combat posts. Congress found that noncombat needs could be met by women volunteers. Also, the lawyers argue that all male conscripts are combat trained, so that they can be moved out of a noncombat role and into the battlefield if needed.