453 U.S. 57 (1981)
In 1948 Congress enacted the Military Selective Service Act which authorized the President to require every male citizen and male resident alien between the ages of 18 and 26 to register for possible military service.1 Registration under the Act was discontinued in 1975.2 In 1971 several men subject to registration filed a complaint in the United States District Court for the Eastern District of Pennsylvania challenging the Act on multiple grounds including gender-based discrimination.3
Following the Soviet armed invasion of Afghanistan in late 1979 President Carter determined that reactivation of the draft registration process was necessary.4 The President recommended that Congress amend the Act to permit registration of women as well as men and sought funds for the Selective Service System.5 Congress held extensive hearings in both the House and Senate on the question of registering women.
Congress allocated funds only for the registration of males in a Joint Resolution passed by the House in April 1980 and the Senate in June 1980.6 On July 2 1980 the President by proclamation ordered the registration of specified groups of young men to commence on July 21 1980.7 The District Court for the Eastern District of Pennsylvania had previously convened a three-judge court in 1974 to consider the gender discrimination claim and the case had remained largely dormant until 1979.8
On July 18 1980 the District Court issued an opinion finding that the male-only registration requirement violated the Due Process Clause of the Fifth Amendment and permanently enjoined the government from requiring registration.9 The court certified a plaintiff class of all male persons registered or subject to registration.10 The Director of Selective Service filed a notice of appeal and Justice Brennan stayed the District Court order allowing registration to begin as scheduled.11
The Supreme Court noted probable jurisdiction on December 1 1980.12
Whether the Military Selective Service Act's authorization for the President to require registration of males but not females violates the Due Process Clause of the Fifth Amendment?13
Congress possesses broad constitutional power under Art. I, § 8, cls. 12-14 to raise and support armies and to make rules for the government and regulation of the land and naval forces.14 The test for determining the validity of a gender-based classification under the Due Process Clause of the Fifth Amendment is whether the classification is substantially related to the achievement of an important governmental objective.15 Courts must accord great deference to congressional judgments in the area of military affairs.16
No. The Government's interest in raising and supporting armies is an important governmental interest.17 Congress extensively considered the question of registering women through hearings in both the House and Senate following the Soviet invasion of Afghanistan.18 Congress determined that the primary manpower need in any future draft would be for combat troops.19 Because women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft.20 The exemption of women from registration under the Act is the result of Congress' considered response to the question of how to provide a military capable of serving the national interest.21 It is not an accidental by-product of a traditional way of thinking about women.22
The classification is substantially related to the governmental objective because registration prepares a pool of potential combat troops.23 Women would not add materially to that pool.24
The Act's registration provisions do not violate the Due Process Clause of the Fifth Amendment.25
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall, joined by Justice Brennan, filed a dissenting opinion arguing that the male-only registration requirement violates the equal protection component of the Fifth Amendment.26 He maintained that gender-based classifications are subject to heightened scrutiny under Craig v. Boren and that the Government failed to demonstrate that excluding women from registration is substantially related to the achievement of an important governmental objective.27 Marshall emphasized that the combat restrictions on women do not justify their complete exclusion from registration because many noncombat positions could be filled by women without impairing military flexibility.28
He distinguished registration from conscription and rejected the notion that administrative burdens or stereotypes could sustain the discrimination.29 In his view, the decision rested on outdated assumptions about women's roles rather than military necessity, and he would have affirmed the District Court's judgment.30
Justice White dissented separately, contending that the Government had not shown that excluding women from registration is substantially related to military preparedness.31 He noted that the record supports the District Court's finding that at least 80,000 positions could be filled by women in a mobilization without affecting combat readiness.32 White argued that the services could not rely solely on volunteers to fill those positions and that administrative convenience is insufficient to justify the gender discrimination of registering only men.33
He concluded that the statute should be struck down because the number of women who could be used without sacrificing combat readiness is not insubstantial.34