25 January 2013

Is the Selective Service Act unconstitutional now?

In 1981, the Supreme Court said no in the case of Rostker v. Goldberg, 453 U.S. 57 (1981). Here are a few excerpts from then-Justice Rehnquist's majority opinion (emphases are mine):
...In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them...
...The existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them... 
...Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress' purpose in authorizing registration...
Now that combat restrictions will essentially be lifted, this appears to remove the central rationale for distinguishing between men and women, in terms of the Selective Service Act. As a result, I suspect this may call in question the central holding of Rostker v. Goldberg.

Perhaps the Selective Service Act now violates the due process clause of the 5th Amendment.

What do you think?
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