Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change

By Jill Elaine Hasday. Full text here.

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women’s military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women’s legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, and the public has become more enthusiastic about women’s military service, including in combat.

This Article brings long overdue attention to the record of women’s legal status in the military in order to make three broad theoretical and historical points. First, women’s continued exclusion from registration, draft eligibility, and some combat positions undermines the common assumption that legalized sex inequality has faded into history. Second, the record of women’s legal status in the military helps illuminate how extrajudicial events can shape the Supreme Court’s constitutional interpretation and then render that interpretation much less plausible over time. Rostker reflected contemporaneous understandings of sex equality. The extrajudicial transformation in women’s military role since Rostker has undercut the factual premises and cultural assumptions behind Rostker’s interpretation of constitutional equal protection, making clear that Rostker is inconsistent with the rest of the Court’s sex discrimination jurisprudence. Third, and most strikingly, the record of women’s legal status in the military illustrates how extrajudicial actors can develop and enforce their own evolving understanding of sex equality norms, sometimes becoming a more important source of those norms than courts. The extrajudicial transformation in women’s military role has shifted the foundational normative commitments that shape the evolving meaning of constitutional equal protection. This transformation makes limits on women’s military service that seemed just and reasonable in the 1970s and 1980s, even to many proponents of sex equality in constitutional and statutory law, now appear increasingly wrong, inequitable, and invidious. Over time, that shift in perspective is likely to affect demands for further change and judgments that both courts and extrajudicial decisionmakers reach about how the Constitution’s open-textured language of equal protection applies to specific questions about women’s military role. The Article concludes by exploring some of the practical consequences of the extrajudicial shift in perspective on women’s military service.