Protecting Our Defenders: The Need to Ensure Due Process for Women in the Military Before Amending the Selective Service Act

Abstract

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then “equal to men” in the military and, therefore, should be required to register for Selective Service—the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in various other ways.

Since the change in policy allowing women to serve in all capacities within the military, several cases have been filed in federal courts in an attempt to overturn Rostker v. Goldberg, the 1981 case in which the Court held that men and women were not “similarly situated” and therefore it was constitutionally permissible for women to be excluded from the registration requirement for Selective Service. Likely, courts will only revisit the narrow analysis outlined in Rostker, namely women’s access to frontline positions. This Note urges Congress, for policy and normative reasons, to consider all manners in which women and men are not yet similarly situated when considering a future amendment to the Selective Service Act. In describing a number of policies and structures that deprive rights to women within the military, this Note argues that women should be required to register for the Selective Service only once their due process rights can be guaranteed.

Keywords: Due Process, Military, Military Justice, Sexual Assault