rostker goldberg argued march decided june military selective service act act authorizes president require registration possible military service males females purpose registration facilitate eventual conscription act registration draft discontinued presidential proclamation act amended preclude conscription result crisis southwestern asia president carter decided necessary reactivate registration process sought congress allocation funds purpose also recommended congress amend act permit registration conscription women well men although agreeing necessary reactivate registration process congress allocated funds necessary register males declined amend act permit registration women thereafter president ordered registration specified groups young men lawsuit brought several men challenging act constitutionality district ultimately held act discrimination violated due process clause fifth amendment enjoined registration act held act registration provisions violate fifth amendment congress acted well within constitutional authority raise regulate armies navies authorized registration men women pp customary deference accorded congress judgments particularly appropriate congress specifically considered question act constitutionality perhaps area accorded congress greater deference area national defense military affairs congress free disregard constitution acts area military affairs must particularly careful substitute judgment desirable congress evaluation evidence reasonable evaluation legislative branch congress carefully considered whether register males potential conscription whether register sexes broad constitutional authority ignored considering constitutionality studied choice one alternative preference pp question registering women extensively considered congress hearings held response president request authorization register women decision exempt women accidental byproduct traditional way thinking women since congress thoroughly reconsidered question exempting women act act constitutionality need considered solely basis views expressed congress act first enacted modern form congress determination future draft characterized need combat troops sufficiently supported testimony adduced hearings courts free make judgment question since women excluded combat service statute military policy men women simply similarly situated purposes draft registration draft congress decision authorize registration men therefore violate due process clause testimony executive military officials congress showed argument registering women based considerations equity congress entitled exercise constitutional powers focus question military need rather equity district undertaking independent evaluation evidence exceeded authority ignoring congress conclusions whatever need women noncombat roles mobilization met volunteers staffing noncombat positions women mobilization positively detrimental important goal military flexibility pp rehnquist delivered opinion burger stewart blackmun powell stevens joined white post marshall post filed dissenting opinions brennan joined solicitor general mccree argued cause appellant briefs assistant attorney general daniel acting assistant attorney general martin deputy solicitor general claiborne barbara etkind william kanter mark gallant donald weinberg argued cause appellees brief harold kohn stuart savett isabelle katz pinzler bruce ennis laurence tribe briefs amici curiae urging reversal filed dennis rapps david stern orthodox jewish coalition draft nathan lewin stacy acker et al briefs amici curiae urging affirmance filed daniel marcus congressman robert kastenmeier et al paul kenney men rights barbara brown thomas hart phyllis segal judith avner national organization women judith lichtman women equity action league educational legal defense fund et al daniel popeo paul kamenar filed brief congressman lawrence mcdonald et al amici curiae justice rehnquist delivered opinion question presented whether military selective service act app et seq ed supp iii violates fifth amendment constitution authorizing president require registration males females congress given power constitution raise support armies provide maintain navy make rules government regulation land naval forces art cls pursuant grant authority congress enacted military selective service act app et seq ed supp iii mssa act section act stat amended app empowers president proclamation require registration every male citizen male resident aliens ages purpose registration facilitate eventual conscription pursuant act stat amended app persons required register liable training service armed forces mssa registration provision serves purpose beyond providing pool subsequent induction registration draft discontinued presidential proclamation cfr comp note following app early president carter determined necessary reactivate draft registration process immediate impetus decision soviet armed invasion afghanistan weekly comp pres doc state union address according administration witnesses senate armed services committee resulting crisis southwestern asia convinced president time come use present authority require registration necessary step preserving enhancing national security interests department defense authorization appropriations fiscal year hearings senate committee armed services hereafter hearings joint statement john white deputy director office management budget bernard rostker director selective service system richard danzig principal deputy assistant secretary defense selective service system inactive however funds needed reactivating registration president therefore recommended funds transferred department defense separate selective service system doc also recommended congress take action amend mssa permit registration conscription women well men see house committee armed services presidential recommendations selective service reform report congress prepared pursuant pub comm print hereinafter presidential recommendations app congress agreed necessary reactivate registration process allocated funds purpose joint resolution passed house april senate june res pub stat resolution allocate funds originally requested president necessary register males see cong rec nunn although congress considered question great length see infra declined amend mssa permit registration women july president proclamation ordered registration specified groups young men pursuant authority conferred act registration commence july proclamation cfr events last year breathed new life lawsuit essentially dormant lower courts nearly decade began several men subject registration draft subsequent induction armed services filed complaint district eastern district pennsylvania challenging mssa several grounds district convened consider claim unlawful discrimination us july declined dismiss case moot reasoning although authority induct registrants lapsed see supra plaintiffs still certain affirmative obligations connection registration rowland tarr supp nothing happened case five years june clerk acting pursuant local rule governing inactive cases proposed case dismissed additional discovery thereupon ensued defendants moved dismiss various justiciability grounds denied motion dismiss ruling adequate record operation selective service system action necessary reactivate goldberg tarr supp july certified plaintiff class male persons registered subject registration app liable training service armed forces app supp friday july three days registration commence district issued opinion finding act violated due process clause fifth amendment permanently enjoined government requiring registration act initially determined plaintiffs standing case ripe determinations challenged government turning merits rejected plaintiffs suggestions equal protection claim tested strict scrutiny also rejected defendants argument deference due congress area military affairs required application traditional minimum scrutiny test applying important government interest test articulated craig boren struck mssa stressed deciding whether extent women serve combat issue registration felt dispel concern injecting inappropriate manner military affairs see also nn proceeded examine testimony hearing evidence presented congress representatives military executive branch concluded basis testimony military opinion backed extensive study availability women registrants materially increase flexibility hamper rejected congress contrary determination part viewed congress inconsistent positions declining register women yet spending funds recruit expand opportunities military ibid director selective service immediately filed notice appeal next day saturday july justice brennan acting capacity circuit justice third circuit stayed district order enjoining commencement registration registration began next monday december noted probable jurisdiction ii whenever called upon judge constitutionality act congress gravest delicate duty called upon perform blodgett holden holmes accords great weight decisions congress columbia broadcasting system democratic national committee congress coequal branch government whose members take oath uphold constitution justice frankfurter noted joint refugee committee mcgrath concurring opinion must due regard fact exercising primary judgment sitting judgment upon also taken oath observe constitution responsibility carrying government customary deference accorded judgments congress certainly appropriate congress specifically considered question act constitutionality see pp cong rec warner hatfield however merely case involving customary deference accorded congressional decisions case arises context congress authority national defense military affairs perhaps area accorded congress greater deference rejecting registration women congress explicitly relied upon constitutional powers art cls specific findings section report senate armed services committee later adopted houses congress began stating article section constitution commits exclusively congress powers raise support armies provide maintain navy make rules government regulation land naval forces pursuant powers lies within discretion congress determine occasions expansion armed forces means best suited expansion prove necessary supra scope congress constitutional power area broad lack competence part courts marked gilligan morgan noted difficult conceive area governmental activity courts less competence complex subtle professional decisions composition training equipping control military force essentially professional military judgments subject always civilian control legislative executive branches operation healthy deference legislative executive judgments area military affairs evident several recent decisions parker levy rejected vagueness overbreadth challenges provisions uniform code military justice noting congress permitted legislate greater breadth greater flexibility statute governs military society hile members military excluded protection granted first amendment different character military community military mission requires different application protections middendorf henry noted considering due process claims context summary must give particular deference determination congress made authority regulate land naval forces art concerning rights available see also powell concurring deference judgment branches area military affairs also played major role greer spock upheld ban political speeches civilians military base brown glines upheld regulations imposing prior restraint right petition military personnel see also burns wilson macintosh schlesinger ballard supra considered due process challenge brought males navy policy according females longer period males attain promotions necessary continued service distinguished previous discriminations held unlawful reed reed frontiero richardson cases classifications based overbroad generalizations see case however noted different treatment men women naval officers reflects archaic overbroad generalizations instead demonstrable fact male female line officers navy similarly situated respect opportunities professional service appellee challenged current restrictions women officers participation combat sea duty none say congress free disregard constitution acts area military affairs area congress remains subject limitations due process clause see ex parte milligan wall hamilton kentucky distilleries warehouse tests limitations applied may differ military context course abdicate ultimate responsibility decide constitutional question simply recognize constitution requires deference congressional choice see columbia broadcasting system democratic national committee deciding question us must particularly careful substitute judgment desirable congress evaluation evidence reasonable evaluation legislative branch district purported recognize appropriateness deference congress body exercising constitutionally delegated authority military affairs stressed concerned military operations conduct military desire intrude ibid appellees also stress case involves civilians military impact registration military indirect attenuated brief appellees emphasis omitted find efforts divorce registration military national defense context deference called context singularly unpersuasive recognized broad deference due congress selective service area us case registration end civilian world rather first step induction process military one congress specifically linked consideration registration induction see pp congressional judgments concerning registration draft based judgments concerning military operations needs see starting point discussion appropriateness registering women draft question proper role women combat deference unquestionably due latter judgments necessarily required assessing former well although district stressed intruding military questions opinion based assessments military need flexibility time mobilization see blinking reality say precedents requiring deference congress military affairs implicated present case solicitor general argues largely basis foregoing cases emphasizing deference due congress area military affairs national security scrutinize mssa determine distinction drawn men women bears rational relation legitimate government purpose see railroad retirement bd fritz examine act heightened scrutiny approached discrimination see michael superior sonoma county craig boren reed reed supra think substantive guarantee due process certainty law advanced refinement applicable tests suggested government announced degrees deference legislative judgments levels scrutiny announces applies particular classifications made legislative body may readily become facile abstractions used justify result case courts called upon decide whether congress acting explicit constitutional grant authority action transgressed explicit guarantee individual rights limits authority conferred simply labeling legislative decision military one hand automatically guide correct constitutional result one deny test craig boren supra government interest raising supporting armies important governmental interest congress committees carefully considered debated two alternative means furthering interest first register males potential conscription register sexes congress chose former alternative decision challenged equal protection grounds question must decide alternative chosen primary decisionmaker whether chosen congress denies equal protection laws denied imposing number cases previously cited suggest judicial deference congressional exercise authority apogee legislative action congressional authority raise support armies make rules regulations governance challenged previously noted supra deference mean abdication reconciliation deference due congress constitutional responsibility perhaps best instanced schlesinger ballard stated recognized primary business armies navies fight ready fight wars occasion arise ex rel toth quarles see also orloff willoughby responsibility determining best armed forces shall attend business rests congress see art cls president see art ii cl say exercising broad constitutional power congress violated due process clause fifth amendment udges given task running army responsibility setting channels grievances considered fairly settled rests upon congress upon president subordinates military constitutes specialized community governed separate discipline civilian orderly government requires judiciary scrupulous interfere legitimate army matters army must scrupulous intervene judicial matters orloff willoughby iii case quite different several discrimination cases considered despite appellees assertions congress act unthinkingly reflexively considered reason brief appellees question registering women draft received considerable national attention subject public debate also extensively considered congress hearings floor debate committee hearings held houses congress response president request authorization register women adduced extensive testimony evidence concerning issue see hearings hearings registration women subcommittee military personnel house committee armed services sess hereafter house hearings hearings built hearings held previous year addressed question house declined provide registration women passed joint resolution allocating funds selective service system see cong rec senate considered joint resolution defeated extensive debate amendment effect authorized registration women noted earlier congress res authorized funds sufficient cover registration males report senate committee appropriations res noted amount authorized president request due committee decision provide register women amount recommended committee allow registration young men see cong rec nunn proposals register women rejected course transferring funds register males committees houses conducted hearings issue also rejecting registration women house subcommittee military personnel house armed services committee tabled bill amended mssa authorize registration women march legislative calendar house committee armed services senate armed services committee rejected proposal register women one year see pp adopted specific findings supporting action see pp findings stressed debate senate joint resolution see cong rec nunn warner later specifically endorsed house senate conferees considering fiscal year defense authorization bill see conf later houses adopted findings passing report cong rec senate report therefore considerably significant typical report single house findings effect findings entire congress foregoing clearly establishes decision exempt women registration byproduct traditional way thinking females califano webster quoting califano goldfarb stevens concurring judgment michael plurality opinion rejected similar argument action california legislature considering rejecting proposals make statute challenged discrimination grounds cause rejecting argument considerably stronger issue considered great length congress clearly expressed purpose intent contrast califano westcott gender qualification escaped virtually unnoticed hearings floor debates reasons reject appellees argument must consider constitutionality mssa solely basis views expressed congress mssa first enacted modern form contrary suggestions appellees various amici reliance legislative history joint resolution activity various committees congress considering registration women violate sound principles appropriations legislation considered modifying substantive legislation congress change mssa thoroughly reconsider question exempting women provisions basis legislative history therefore highly relevant assessing constitutional validity exemption mssa established plan maintaining adequate armed strength insure security nation app registration first step continuous process designed raise army speedily efficiently falbo see nugent congress provided reactivation registration order provid means early delivery inductees emergency supra although district often tried sever consideration registration particulars induction see congress rather clearly linked need renewed registration views character subsequent draft senate report specifically found ability mobilize rapidly essential preservation national security functioning registration system vital part mobilization plan supra senator warner put equate registration draft hearings see also jepsen exon approach certainly logical since mssa induction interlocked registration registered may drafted registration serves purpose beyond providing pool draft assessment congressional purpose chosen means must therefore consider registration scheme prelude draft time national emergency approach testing act light purposes congress sought achieve congress determined future draft facilitated registration scheme characterized need combat troops senate report explained specific finding later adopted houses mobilization ordered wartime scenario primary manpower need combat replacements see conclusion echoed one made year senate committee see pp senator jepsen put shortage combat arms drafts hearings see also jepsen cong rec nelson congress determination need combat troops draft took place sufficiently supported testimony adduced hearings courts free make judgment question see hearings marine corps bronars principal deputy assistant secretary army clark yerks meyer house hearings assistant secretary defense manpower pirie see also hearing rogers purpose registration therefore prepare draft combat troops women group however unlike men group eligible combat restrictions participation women combat navy air force statutory supp iii women may assigned duty vessels aircraft engaged combat missions female members air force may assigned duty aircraft engaged combat missions army marine corps preclude use women combat matter established policy see app congress specifically recognized endorsed exclusion women combat exempting women registration words senate report principle women intentionally routinely engage combat fundamental enjoys wide support among people universally supported military leaders testified committee current law policy exclude women assigned combat military forces committee reaffirms policy supra existence combat restrictions clearly indicates basis congress decision exempt women registration purpose registration prepare draft combat troops since women excluded combat congress concluded needed event draft therefore decided register turning senate report committee view starting point discussion appropriateness registering women draft question proper role women combat policy precluding use women combat committee view important reason including women registration system supra congress decision authorize registration men therefore violate due process clause exemption women registration sufficiently also closely related congress purpose authorizing registration see michael plurality opinion craig boren reed reed fact congress executive decided women serve combat fully justifies congress authorizing registration since purpose registration develop pool potential combat troops case schlesinger ballard supra gender classification individious rather realistically reflects fact sexes similarly situated case michael supra plurality opinion constitution requires congress treat similarly situated persons similarly engage gestures superficial equality holding mssa constitutionally invalid district relied heavily president decision seek authority register women testimony members executive branch military support decision see stated administration witnesses congress however president decision ask authority register women based equity house hearings statement assistant secretary defense pirie director selective service system rostker see also presidential recommendations app hearings statements executive associate director office management budget wellford director selective service system rostker principal deputy assistant secretary defense danzig also basis testimony military officials meyer allen senate report evaluating testimony committee recognized argument registration induction women based military necessity considerations equity congress certainly entitled exercise constitutional powers raise regulate armies navies focus question military need rather equity senator nunn senate armed services committee put committee went great detail found military necessity cited witnesses registration females main point favored registration females made favor equality issue course legitimate view far military necessity primarily hope considering overall registration bill military necessity cong rec although military experts testified favor registering women uniformly opposed actual drafting women see hearing rogers testimony event draft military absorb female inductees hearings used fill noncombat positions freeing men go front relying testimony striking mssa district palpably exceeded authority ignored congress considered response line reasoning first place assuming small number women drafted noncombat roles congress simply consider worth added burdens including women draft registration plans suggested women registered handful actually inducted emergency committee finds confused ultimately unsatisfactory solution supra senate committee recognized year training needlessly burdened women recruits used combat see also supra administrative problems housing different treatment regard dependency hardship physical standards also exist dismiss problems insignificant context military preparedness exigencies future mobilization congress also concluded whatever need women noncombat roles mobilization whether less met volunteers see combat restrictions need primarily men women volunteers fill requirements women house hearings holt see also hearings rogers significantly congress determined staffing noncombat positions women mobilization positively detrimental important goal military flexibility military reasons preclude large numbers women serving military flexibility requires commander able move units ships quickly units ships located front previously scheduled front nevertheless must able move action necessary peace war significant rotation personnel necessary divide military two groups one permanent combat one permanent support large numbers positions must available combat troops return duty redeployed supra light foregoing conclude congress acted well within constitutional authority authorized registration men women military selective service act decision district holding otherwise accordingly reversed footnotes plaintiffs contended act amounted taking property without due process imposed involuntary servitude violated rights free expression assembly unlawfully implemented advance unconstitutional war impermissibly discriminated males females district denied plaintiffs application convene district dismissed suit rowland tarr supp appeal appeals third circuit affirmed dismissal claims except discrimination claim remanded case district determine claim substantial enough warrant convening ed whether plaintiffs standing assert claim remand district answered questions affirmative resulting convening decided case act authorizing courts hear claims repealed pub stat remains applicable suits filed repeal stat stated schlesinger ballard although contains equal protection clause fourteenth amendment fifth amendment due process clause prohibits federal government engaging discrimination unjustifiable violative due process bolling sharpe entering judgment july district redefined class include male persons registered app liable training service armed forces app also either subject registration presidential proclamation july presently registered selective service system see also simmons cert denied competent empowered sit authority review decisions executive legislative branches government regard necessity method selection composition defense forces obvious needs discussion congress recognized decision registration involved judgments military needs operations decisions entitled particular deference recent teachings field equal protection read isolation opinions giving great deference judgment congress military commanders dealing management military forces requirements military discipline made unmistakably clear even fundamental constitutional rights must circumstances modified light military needs congress judgment necessary preserve national security entitled great deference pp deference congress judgment consistent dominant theme lower decisions assessing present claim see clinton supp ed la offord supp ed clear ender never rejected impermissible classification instances kahn shevin making observation noted congress far drafted women armed services app ibid see reinstitution procedures registration military selective service act hearing manpower personnel senate committee armed services sess hearing seven months president call registration women senate armed services committee rejected idea see pp amendment provided funds shall made available implementing system registration include women cong rec findings conferees senate armed services committee added provision defense authorization bill authorizing transfer funds register young men stopgap measure joint resolution fail see conf agree characterization mssa brief national organization women amicus curiae law coerce preclude women class performing tasks jobs capable suggestion case involves exclusion women military nothing mssa restricts way opportunities women volunteer military service major country women combat jobs standing army see app see brief appellees denying concession validity combat restrictions submitting restrictions irrelevant present case see also app justice marshall suggestion since congress focused need combat troops authorizing registration forced declare registration program unconstitutional post event peacetime draft misreads opinion perceived need combat troops event draft limited wartime draft see considering problems associated egistering women assignment combat assigning women combat positions emphasis supplied need rotation combat noncombat positions peace war grant constitutional authority congress executive military officials district also focused termed congress inconsistent positions encouraging women volunteer military service expanding opportunities service one hand exempting registration draft reasoning fails appreciate different purposes served encouraging women volunteers registration draft women volunteers occupy combat positions encouraging women volunteer related concerns availability combat troops event draft however need combat troops troops rotated combat see supra congress positions clearly inconsistent treating district failed understand congress purpose behind registration distinguished purpose encouraging women volunteers general rogers testimony merits quotation general rogers one thing often lost sight senator emergency war army often reach back support base supporting elements operating base pull forward soldiers fill ranks emergency hand rifle give tanker suit put front ranks senator warner general patton one time believe battle bulge general rogers absolutely support base operating base rear consists large measure women opportunity reach back pull forward women placed forward fighting position tank opinion enters equation one considers subject utility women contingency conditions assume challenged case excluding women combat positions offend constitution granting mobilization war noncombat military positions must filled personnel available moved combat positions occasion whatsoever women army whether volunteers inductees appears say ante congress concluded much accept judgment even though serious view executive branch including responsible military services contrary position regard unpersuasive perceive little indication congress concluded every position military matter far removed combat must filled men common sense experience recent wars women volunteers employed substantial numbers belie view reality ascribed congress particularly face testimony military authorities hereafter referred substantial number positions services filled women peacetime mobilization even though ineligible combat also little difficulty agreeing reversal women serve wartime without adversely affecting combat readiness predictably obtained volunteers event equal protection component fifth amendment require go large segment population burdened expensive essentially useless procedure registering women agree see ante congress concluded legislative record indicates services rely women volunteers fill positions might eligible event mobilization contrary record understand supports district finding services conscript least persons fill positions men required consistent position defense department representatives best estimate number women draftees used productively services event major mobilization approximately first six months see hearings senate committee armed services hearings subcommittee military personnel house committee armed services number took account estimated number women volunteers see deposition director selective service bernard rostker deposition principal deputy assistant secretary defense richard danzig app except single unsupported ambiguous statement senate report effect women volunteers fill requirements women indication congress rejected defense department figures relied upon alternative set figures course division among us indicates record respect means different things different people content vacate judgment remand hearings findings crucial issue absent however agree record supports view positions women eligible wartime filled female volunteers also submits primary purpose registration conscription supply combat troops great majority noncombat positions must filled men ready rotated combat absolute number positions women eligible small de minimis moment equal protection purposes especially light administrative burdens involved registering women suitable age sense least record us number women used military without sacrificing combat readiness small insubstantial administrative convenience sufficient justification kind outright discrimination involved registering conscripting men women understand record order secure personnel needs mobilization government rely volunteers must register draft fill combat positions noncombat positions must filled men also secure personnel needed jobs performed persons ineligible combat without diminishing military effectiveness claim providing latter category positions congress free register draft men discern adequate justification kind discrimination men women accordingly due respect dissent justice marshall justice brennan joins dissenting today places imprimatur one potent remaining public expressions ancient canards proper role women phillips martin marietta marshall concurring upholds statute requires males females register draft thereby categorically excludes women fundamental civic obligation believe decision inconsistent constitution guarantee equal protection laws dissent background litigation set opinion ante repeat discussion bears emphasis however question presented case whether exclusion women registration military selective service act app et seq ed supp iii mssa contravenes equal protection component due process clause fifth amendment although purpose registration assist preparations drafting civilians military asked rule constitutionality statute governing conscription advent armed forces mssa specifically amended preclude conscription july pub stat app reactivation draft therefore require legislative amendment see consequently called upon decide whether either men women drafted whether must drafted equal numbers order drafted inducted trained respective functions addition case involve challenge statutes policies prohibit female members armed forces serving combat understanding turn task hand clear statutes like mssa discriminate basis gender must examined heightened scrutiny mandated craig boren test classification withstand constitutional challenge unless classification substantially related achievement important governmental objective kirchberg feenstra wengler druggist mutual ins califano westcott orr orr craig boren supra test applies whether classification discriminates males females caban mohammed orr orr supra craig boren supra party defending challenged classification carries burden demonstrating importance governmental objective serves substantial relationship discriminatory means asserted end see wengler druggist mutual ins supra caban mohammed supra craig boren supra consequently sustain mssa government must demonstrate classification employs bears close substantial relationship achievement important governmental objectives personnel administrator massachusetts feeney mssa adequate armed strength must achieved maintained insure security nation app agree majority ante one deny government interest raising supporting armies important governmental interest consequently first part craig boren test satisfied question remains whether discriminatory means employed substantially serves statutory end concluding correctly notes congress enacted reactivated mssa pursuant constitutional authority raise maintain armies majority also notes ante accords great weight decisions congress quoting columbia broadcasting system democratic national committee accorded particular deference decisions arising context congress authority military affairs particular quarrel sentiments majority opinion simply add even area military affairs deference congressional judgments allowed shade abdication ultimate responsibility decide constitutional questions pointed phrase war power invoked talismanic incantation support exercise congressional power brought within ambit ven war power remove constitutional limitations safeguarding essential liberties robel quoting home bldg loan assn blaisdell one safeguar essential liberties fifth amendment guarantee equal protection laws federal law classifies basis gender challenged violating constitutional guarantee ultimately congress decide whether exists constitutionally required close substantial relationship discriminatory means employed asserted governmental objective see powell mccormack baker carr judgment simply basis concluding case excluding women registration substantially related achievement concededly important governmental interest maintaining effective defense reaches contrary conclusion using nnounced degre deference legislative judgmen facile abstractio justify result ante ii government defend exclusion women registration ground preventing women serving military substantially related effectiveness armed forces indeed successful experience women serving branches armed services belie claim women volunteers presently active service military number expected increase see department defense authorization appropriations fiscal year hearings senate committee armed services senate hearings women military hearings military personnel subcommittee house committee armed services women military hearings congressional hearings representatives department defense armed services testified participation women armed forces contributed substantially military effectiveness see senate hearings yerks principal deputy assistant secretary defense danzig women military hearings assistant secretary defense pirie congress never disagreed judgment military experts women made significant contributions effectiveness military contrary congress repeatedly praised performance female members armed forces approved efforts armed services expand role last year senate armed services committee declared women volunteer military service assigned military specialties volunteers make important contribution armed forces number women military increased significantly past years expected continue increase authoritative discussion congress reasons declining require registration women contained report prepared senate armed services committee fiscal year defense authorization bill supra report findings endorsed conferees authorization bill see conf houses congress subsequently adopted findings passing conference report cong rec majority notes ante report findings effect findings entire congress senate report sets objectives congress sought accomplish excluding women registration see supra may appropriately look report evaluating justification discrimination according senate report policy precluding use women combat important reason including women registration system supra see also supra reaffirming combat restrictions report declared registering women assignment combat assigning women combat positions peacetime leave actual performance sexually mixed units experiment conducted war unknown risk risk committee finds militarily unwarranted dangerous moreover committee feels attempt assign women combat positions affect national resolve time mobilization time great strain aspects nation resources supra opinion offers different though related explanation relationship combat restrictions congress decision require registration women majority congress clearly linked need renewed registration views character subsequent draft ante also congress determined future draft facilitated registration scheme characterized need combat troops ante reasons since women eligible assignment combat congress decision exclude registration unconstitutional discrimination inasmuch en women combat restrictions women simply similarly situated purposes draft registration draft ante certain logic reasoning approach fundamentally flawed first place although purports apply craig boren test similarly situated analysis employs fact significantly different craig boren approach compare kirchberg feenstra employing craig boren test stewart concurring result employing similarly situated analysis essentially reasons gender classification employed mssa constitutionally permissible nondiscrimination necessary achieve purpose registration prepare draft combat troops words majority concludes women may excluded registration needed event draft analysis however focuses wrong question relevant inquiry craig boren test whether classification substantially advance important governmental interests rather question whether classification substantially related achievement asserted governmental interest thus government task case demonstrate excluding women registration substantially furthers goal preparing draft combat troops put another way government must show registering women substantially impede efforts prepare draft precedents government meet burden without showing statute less effective means attaining end see wengler druggists mutual ins explained orr orr emphasis added legislative classifications distribute benefits burdens basis gender carry inherent risk reinforcing sexual stereotypes proper place women need special protection government purposes well served classification one gender classifies therefore carries baggage sexual stereotypes government permitted classify basis sex fact registering women way obstructs governmental interest preparing draft combat troops points second flaw analysis essentially reduces question constitutionality registration validity hypothetical program conscripting men posits draft conscripts either assigned specific combat posts presently closed women must available rotation positions able conclude registering women gestur superficial equality ante since women necessarily ineligible every position filled hypothetical draft indeed guaranteed advance conscription reimposed congress circumstances form conscripts trained assigned combat combat rotation positions women categorically excluded argued registration women pointless course guarantee possible certainly nothing mssa limits congress reinstituting draft circumstances example congress may decide armed forces inadequate meet nation defense needs even times peace reinstitute peacetime conscription event hypothetical draft relied sustain mssa classification presumably little relevance forced declare registration program unconstitutional difficulty comes congress lost sight important distinction registration conscription registration provides inventory available strength within military qualified pool country reinstitution procedures registration military selective service act hearing subcommittee manpower personnel senate armed services committee selective service hearings statement rogers conscription supplies military personnel needed respond particular exigency fact registration first step conscription process mean registration law expressly discriminating men women may justified valid conscription program retrospect make current discrimination appear functionally related program emerged even addressing reasoning terms analysis flawed entire argument rests premise demonstrably false noted majority simply assumes registration prepares draft every draftee must available assignment combat majority draft scenario finds support either testimony congress importantly findings senate report indeed scenario appears exist imagination even government represents event mobilization approximately demand induction system combat skills brief appellant emphasis added part rather join imagining hypothetical drafts prefer examine findings senate report testimony presented congress nothing senate report supports intimation women must excluded registration combat eligibility prerequisite positions need filled event draft senate report concluded mobilization ordered wartime scenario primary manpower need combat replacements emphasis added conclusion keeping testimony presented congressional hearings department defense indicated event mobilization requiring reinstitution draft primary manpower requirement combat troops support personnel readily deployed combat see senate hearings principal deputy assistant secretary army clark yerks department indicated conscripts also needed staff variety support positions prerequisite combat eligibility therefore filled women assistant secretary defense manpower reserve affairs logistics pirie explained need expand combat arms said pressing need also need expand support establishment time allow combat arms carry function successfully support establishment uses women effectively wartime think true registration women hearing subcommittee military personnel house committee armed services house hearings interest national security emergency requiring conscription military service nation youth best qualified people wide variety tasks armed forces available performance women armed forces today strongly supports conclusion many best qualified people military jobs age category women conclusion good reasons registering women conclusion even strongly good reasons refusing register principal deputy assistant secretary defense danzig emphasis added background testimony congressional hearings focused projections manpower needs event emergency requiring reinstitution draft particular role women draft make discussion concrete testimony examined draft scenario dealing personnel requirements first six months mobilization response major war europe defense department indicated three constraints maximum number women armed services use event mobilization legislative prohibitions use women certain military positions policy reserve certain assignments ground combat roles men need reserve substantial number noncombat positions men order provide pool ready replacements ground combat positions house hearings assistant secretary pirie mobilization present best projection use women jobs inducting people reason jobs indeed jobs support related combat related think women fill jobs quite well senate hearings principal deputy assistant secretary defense danzig women subject draft department defense determine maximum number women used armed forces subject existing constraints needs military services provide close combat fillers replacements quickly estimate might require least additional women first six months enough women volunteers separate draft call women issued review findings contained senate report testimony presented congressional hearings demonstrates basis representation women ineligible positions need filled event draft testimony personnel requirements event draft established women fill least positions conscripts inducted thus respect positions statutes policies barring women combat provide reason distinguishing male female potential conscripts two groups majority parlance similarly situated combat restrictions supply constitutionally required justification mssa classification since classification precludes women drafted fill positions qualified useful government must demonstrate excluding women positions substantially related achievement important governmental objective iii government argues however consistent testimony congress effect military need draft women brief appellant emphasis original government points statement senate report oth civilian military leadership agreed military need draft women argument registration induction women based military necessity considerations equity accepting government contention asserts president decision seek authority register women based equity concludes congress certainly entitled exercise constitutional powers raise regulate armies navies focus question military need rather equity ante view careful examination concepts equity military need required previously noted defense department recommendation women included registration plans based conclusion drafting limited number women consistent contribute military effectiveness see supra background military experts concluded equity favored registration women assistant secretary pirie explained since women proven serve successfully volunteers armed forces equity suggests liable serve draftees conscription reinstated house hearings report stated oth civilian military leadership agreed military need draft women supra examination civilian military leadership meant military need therefore provide insight report use term several witnesses testified personnel requirements event mobilization met drafting men including women draft plans military necessity example assistant secretary defense pirie stated doubtful female draft justified argument wartime personnel requirements met without pool draft eligible men sufficiently large meet projected wartime requirements house hearings believe need draft women peacetime wartime large numbers young men available approximately million males year group draft age population military necessity draft females except possibly doctors health professionals insufficient volunteers people skills may however senate report allusion military need meant convey congress expectation women volunteers make unnecessary draft women majority apparently accepts meaning congress also concluded whatever need women noncombat roles mobilization whether less met volunteers ante since purpose registration protect unanticipated shortages volunteers difficult see excluding women registration justified conjectures expected number female volunteers fail see exclusion pool persons conscripted needed justified reference current supply volunteers event defense department best estimate event mobilization requiring reinstitution draft enough women volunteers fill positions women eligible department told congress mobilization present best projection use women jobs inducting people senate hearings principal deputy assistant secretary defense danzig emphasis added iv recognizing need go beyond military need argument asserts congress determined staffing noncombat positions women mobilization positively detrimental important goal military flexibility ante none deny preserving military flexibility important governmental interest justify exclusion women registration draft ground must showing staffing even limited number positions women impede military flexibility find nothing senate report provide basis representation congress believed case senate report concluded military reasons preclude large numbers women serving emphasis added report went explain military flexibility requires commander able move units ships quickly units ships located front previously scheduled front nevertheless must able move action necessary peace war significant rotation personnel necessary divide military two groups one permanent combat one permanent support large numbers positions must available combat troops return duty redeployed ibid women subject draft department defense determine maximum number women used armed forces subject existing constraints needs military services provide close combat fillers replacements quickly estimate might require least additional women first months house hearings emphasis added similarly reason induction limited number female draftees divide military permanent combat permanent support groups presently case armed forces combat restrictions prevent female draftee serving combat combat rotation position also apply women volunteers armed services presence increasing controlled numbers female volunteers unacceptably divide military two groups difficult see induction similarly limited additional number women accomplish result circumstances agree attempt interpret senate report conclusion drafting large numbers women impair military flexibility proof congress reached entirely different conclusion drafting limited number women adversely affect military flexibility senate report recognized military flexibility objective speaks question whether large numbers women drafted report went state suggested women registered handful actually inducted emergency committee finds confused ultimately unsatisfactory solution first president proposal require registration women include change section mssa requires draft conducted impartially among eligible administration witnesses admitted current language law probably precludes induction women men random basis produce roughly equal numbers men women second conceivable courts faced congressional decision register men women equally equity considerations find insufficient justification inducting token number women services emergency emphasis original create monumental strains training system clog personnel administration support systems needlessly impede defense preparations time great national need administrative problems housing different treatment regard dependency hardship physical standards also exist specific finding senate report law required women drafted equal numbers men mobilization severely impaired strains training facilities administrative systems supra emphasis added however suggestion congressional hearings simultaneous induction equal numbers males female conscripts either necessary desirable defense department recommended women included registration draft plans number female draftees timing induction determined military personnel requirements see supra endorsing plan department gave indication draft place strains training administrative facilities moreover director selective service system testified registration induction process including males females present administrative problems see senate hearings bernard rostker app deposition bernard rostker senate report simply failed consider possibility limited number women drafted conclusion mssa authorize drafting different numbers men women speculation judicial reaction decision register women since congress free amend indeed undertake new legislation authorize draft matter end furthermore senate report speculation statute authorizing differential induction male female draftees vulnerable constitutional challenge unfounded unchallenged restrictions assignment women combat need preserve military flexibility factors discussed senate report provide ample grounds concluding discriminatory means employed statute substantially related achievement important governmental objectives since congress amended authorize differential induction men women based military personnel requirements senate report discussion added burdens result drafting equal numbers male female draftees provides basis concluding total exclusion women registration draft plans substantially related achievement important governmental objectives sum neither senate report testimony presented congressional hearings provides support conclusion seeks attribute report drafting limited number women number timing induction training determined military personnel requirements burden training administrative facilities vi reviewing discussion findings contained senate report able say report demonstrates drafting large numbers women frustrate achievement number important governmental objectives relate ultimate goal maintaining adequate armed strength insure security nation app put another way senate report establishes induction large number men limited number women determined military personnel requirements substantially related important governmental interests discussion findings senate report enable government carry burden demonstrating completely excluding women draft excluding registration substantially furthers important governmental objectives concluding government carried burden case adopts appropriately deferential examination congress evaluation evidence ante emphasis original majority proceeds supplement congress actual findings apparently believes congress made beyond substitutes hollow shibboleths deference legislative decisions constitutional analysis majority lost sight fact responsibility act ultimate interpreter constitution powell mccormack see baker carr congressional enactments area military affairs must like laws judged standards constitution constitution law land legislation must conform principles lays pointed phrase war power invoked talismanic incantation support exercise congressional power brought within ambit robel furthermore hen appears act congress conflicts constitutional provisio choice enforce paramount commands constitution sworn less push back limits constitution merely accommodate challenged legislation trop dulles plurality opinion instances since established determined congressional action exceeded bounds constitution believe true statute attempt avoid constitutional obligation today pushes back limits constitution accommodate act congress affirm judgment district given lengthy discourse background litigation interesting chooses bury sole reference fact see ante statute female members air force navy may assigned vessels aircraft engaged combat missions see supp iii although statutory restrictions assignment women combat army marine corps services established policies preclude assignment appellees concede constitutional validity restrictions women combat taken position validity irrelevant purposes case join see ante rejecting solicitor general suggestion classification employed mssa scrutinized rational relationship test used reviewing challenges certain types social economic legislation see schweiker wilson railroad retirement bd fritz consequently moment constitutional challenge case pressed men claim mssa gender classification discriminates constitution grants congress power raise support armies provide maintain navy make rules government regulation land naval forces art cls although fifth amendment contains equal protection clause held fifth amendment due process clause prohibits federal government engaging discrimination unjustifiable violative due process schlesinger ballard quoting bolling sharpe repeal statute limiting number female members armed forces total enlisted strength number women military risen steadily absolute terms percentage total active military personnel percentage risen expected rise see dept defense use women military ed reprinted app binkin bach women military summarizing testimony presented congressional hearings senator cohen stated asically evidence come committee participation women force worked well praised every military officer testified committee jobs performed cases superior skill senate hearings noted see supra appellees elected challenge constitutionality combat restrictions thought logical conclusion reasoning fact discrimination women case one must wonder feels compelled pledge purported fealty craig boren test alternatively government employ classification related statutory objective based gender example combat eligibility current scheme large subgroups male population ineligible combat physical handicaps conscientious objector status nonetheless required register quotes senator warner comment equate registration draft ante whole senator warner statement merits quotation explains congress refused acknowledge distinction registration draft senator warner stated frankly equate registration draft way establish registration law coequal basis turn right around establish draft law nonequal basis think knock right away senate hearings pirie explained reasoning behind defense department conclusion terms large numbers military women work occupations electronics communications navigation radar repair jet engine mechanics drafting surveying ordnance transportation meteorology effectively shown numerous dod studies tests work women armed forces today essential readiness capability forces case war still true number women similar work inevitably expand beyond peacetime number women traditionally held vast majority jobs fields health advantage registration women pool trained personnel traditionally female jobs exist event sufficient volunteers available make far greater sense include women draft call thereby gain many skills draft males require training fields drafted employment jobs traditionally held females advantage release males currently holding noncombatant jobs reassignment combat jobs house hearings defense department arrived number surveyed military services asked many women use event mobilization received answers suggesting use senate hearings principal deputy assistant secretary defense danzig colloquy senator jepsen principal deputy assistant secretary defense danzig reveals members congress understood military need sense danzig surveyed military services asked many women use among received answers suggesting use let indicate say use mean imply use women department defense view women useful mobilization scenario women available think republic crumble men used instead senator jepsen explicit military requirement involved danzig problem senator mean semantic use words explicit requirement said example military require people brown eyes serve tell people blue eyes et cetera job hand deny job find useful senate hearings see deputy assistant attorney general simms explained much congress testimony hearings stated question military necessity drafting women irrelevant constitutional issue whether sufficient justification whatever test courts may apply registering women assign appellees burden prior scrutiny equal protection decisions drawn question announcing new approach party challenging classification burden showing elimination classification substantially furthers important governmental interest assistant secretary defense pirie explained perhaps sufficient women volunteers come forward meet need perhaps young women register advance put us position call women volunteer sufficient numbers quoted cong rec past wartime recruitment experience bear sanguine view advent korean war unsuccessful effort made recruit women meet rapidly expanding manpower requirements see use women military supra app colloquy representative hillis assistant secretary defense pirie house hearings makes clear number addition number women serving armed forces pirie hillis estimate need individuals inducted first six months hillis many women pirie least individuals women hillis hillis even women active service expected talking another projects pirie yes sir house hearings senator warner questioned service chiefs impact service consequence draft based total provision equality male female selective service hearings emphasis added two service chiefs answered senator warner question effect draft equal numbers men women answers merit quotation general allen air force unfavorable effect air force objection draft ibid general wilson marine corps perfectly happy women drafted percent goal believe handle marine corps ibid report explained congress mandate equal registration men women therefore might well faced situation combat replacements needed first days say men accompanied women faced hypothetical military witnesses stated situation intolerable stated senate report selective service plans provide drafting men first days small number women included total drafted first days