Rostker v. Goldberg - Oral Argument

ORAL ARGUMENT OF WADE H. McCREE, JR., ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We will hear arguments next in Rostker v. Goldberg.

Mr. Solicitor General.

Mr. McCree: Mr. Chief Justice, and may it please the Court:

This case presents the question whether the Military Selective Service Act by providing for a male-only registration and classification for possible induction into the Armed Services violates the equal protection component of the Fifth Amendment by invidiously discriminating against males.

This is an appeal from the judgment of a three-judge court determining that the male-only registration provision of the Military Selective Service Act offends the Constitution and enjoining proceedings pursuant to that Act.

There is no substantial dispute about the facts giving rise to this controversy.

Since 1948 the Military Selective Service Act has provided for the registration of males between the ages of 18 and 26 and their classification and induction into the Armed Services.

Unidentified Justice: Do all males in that age group have to register?

Mr. McCree: All male citizens and all male resident aliens; only aliens not in non-immigrant status.

Unidentified Justice: But all males including ministers and--

Mr. McCree: All of them register, Mr. Justice Stewart.

The classification system provides for exemptions and deferments.

This condition continued until 1973 when the Congress decided to experiment with an all-volunteer Army and the conscription provision of the statute was removed.

However, the registration and classification provisions continued, as they do today, in effect.

But in 1975 the President decided to discontinue the classification of persons under the Military Selective Service Act and this was the condition until 1980 when the President of the United States sent a message to the Congress indicating his desire because of foreign policy and military exigencies to reactivate the registration procedures and he also requested them to extend the scope of the requirements for registration and classification to include females.

The three-judge case which was--

Unidentified Justice: --Might I ask, Mr. Solicitor General, is the registration statute explicit as to the permissible uses of the registration lists?

Mr. McCree: --It is not.

It doesn't forbid the list for any purposes other than that the stated purposes, but it states the purpose for which it would be used.

Unidentified Justice: Well, what I'm getting at, of course, is, may the registration lists be used, for example, to staff nonmilitary jobs?

Mr. McCree: It may--

Unidentified Justice: What I'm thinking about is during the war, do you recall, when not we, but our allies had all kinds of registration lists which they then used to bring women into war industries.

Mr. McCree: --If you're inquiring for service other than within the Armed Services, my understanding is that it does not.

Unidentified Justice: It does not.

Mr. McCree: It's for induction into the military services.

It's not a universal service act, as I understand it.

Justice White: Except, I suppose, that people who are in certain classifications might be assigned outside the military?

Mr. McCree: That was certainly done under the Act and I assume it was done lawfully.

Noncombatant service, within the service, and other service related to the national welfare, I think, was the rubric that was used during World War II, the Korean War, and the Southeast Asian hostilities.

The President requested the Congress to shift funds from the Department of Defense to the inactive Selective Service machinery to reactivate it, to commence the registration of males and females, as he requested, under this message that he sent.

The Congress considered the message and by joint resolution transferred funds from the Department of the Defense to the Selective Service Agency to permit it to function, but denied the request to expand the Selective Service requirement to have women register.

The three-judge case which had been commenced earlier in Philadelphia was then reactivated and the Court determined that by reason of the non-inclusion of women that there was an invidious discrimination against males, that the statute was unconstitutional because it offended the Fifth Amendment and it enjoined further classification.

Chief Justice Burger: Mr. Solicitor General, you used the term, "reactivated".

When that original action in the three-judge District Court was brought in '71... was it?

1971?

was the statute we're now concerned with in the pleadings?

Mr. McCree: The statute was still in effect but in 1975 the President discontinued registration under the statute, so the statute still authorized the President by proclamation to reinstitute registration.

Chief Justice Burger: So you have no problem about the action being the proper vehicle for the issues that are not here?

Mr. McCree: We do not raise this in our jurisdictional statement.

We don't raise it now.

We believe the matter is properly before the Court and we certainly would rather have the Court adjudicate it now than to wait until a genuine emergency with an injunction preventing the President to act in the best interests of the country.

Justice Rehnquist: Well, General McCree, may I ask, is the statute one that simply authorizes the President by proclamation to require registration or that it directs him?

Mr. McCree: It authorizes him by proclamation.

It does--

Justice Rehnquist: And then after this 1980 action in Congress he did issue a proclamation?

Mr. McCree: --He did issue a proclamation requiring young men who were born in 1960 and 1961 to register and then on a continuing basis persons who were born after January 1, 1963, on or before the 30 days prior to their 18th birthday.

And that is continuing now under a stay granted by this Court following our appeal from the determination of unconstitutionality.

Justice Marshall: General McCree, I might have missed it.

Have these pleadings been amended?

Mr. McCree: Were they amended in the court below, Mr. Justice?

Justice Marshall: Yes.

Mr. McCree: Yes.

The pleadings were and parties were added because some of the original parties were beyond the registration limit at that time, the 26 age.

Persons were added so that there was an appropriate class of persons who were subject to the requirement of registration.

Justice Marshall: Is it now aimed at the new statute or the old?

Mr. McCree: It is aimed at the old statute because the statute wasn't changed to require the registration of women, and it's still a male-only registration statute.

Unidentified Justice: Then that's what's before us, is that correct?

Mr. McCree: That's what's before the Court at this time, if the Court please.

Unidentified Justice: Mr. Solicitor General... we began interrupting you with our questions and I'm now continuing the interruption... you stated that the three-judge district court held that this statute was constitutionally invalid because it invidiously discriminated against men?

Mr. McCree: Against men.

Unidentified Justice: That's clear, is it?

Mr. McCree: That's clear.

It was a determination and in fact a challenge was not made that it invidiously discriminated against women.

Other grounds were asserted that the court didn't pass on.

They asserted that it took property without due process of law, that it violated the prohibition against involuntary servitude.

But those contentions were found to be insufficient and only on the invidious discrimination against males was the statute held invalid.

The court below employed what this Court has called in some of its decisions an intermediate level of scrutiny that required that the draft registration be substantially related to an important governmental objective.

And the court below determined that the findings of the Congress on the question of military need did not show an important governmental objective or substantial relation thereto, and made a very extended examination of what it regarded the showing that the Government had made.

We contend essentially two things here.

First we assert that because this case arises in the context of a power expressly granted to the Congress by the Constitution, Article I, Section 8, to raise an army, that the Court should apply the rational relationship standard in determining this validity.

We submit that raising an army and conducting war is sui generis.

Unidentified Justice: Mr. Solicitor General, would you take that position if the classification was one that was racially discriminatory, based on the authority to raise?

Mr. McCree: I think we would take that.

I think we might do that, but we would say--

Unidentified Justice: If it was decided, it said, would have registered only negroes and no whites?

Mr. McCree: --But we would say that that would not be rationally related to an important governmental objective, because--

Unidentified Justice: I thought a rational basis test doesn't talk about an important government objective.

Legitimate, doesn't it?

Mr. McCree: --A rational relationship to a legitimate... the Court is correct... a legitimate governmental objective.

Unidentified Justice: And you say that would not be legitimate?

Mr. McCree: And we would say that would not be a legitimate governmental--

Unidentified Justice: Then gender-based discrimination could be supported as related to a legitimate governmental objective; not racial?

Mr. McCree: --We submit that it would and--

Unidentified Justice: In which case?

Mr. McCree: --And not racial.

Unidentified Justice: How about religious?

Only Jews shall be registered.

Mr. McCree: And not religious.

We say that it would not be a legitimate governmental objective.

Unidentified Justice: Only gender base; sex?

Mr. McCree: We believe gender base is related to a legitimate governmental relationship for the reason that--

Unidentified Justice: And you don't have to say that only gender base?

Mr. McCree: --No, not only gender base, but we just say the gender base would satisfy it.

Unidentified Justice: What I'm thinking of, other bases: race, religion.

--We've always talked about--

Mr. McCree: Oh, I think I follow the Court's question.

Unidentified Justice: --We've always talked about something more than the rational basis aspect.

Mr. McCree: I would look at the Court's question in this way.

Historically, and in the interpretations by this Court, race is no longer an appropriate classification for the disparate treatment of anybody in this country anymore.

And I think, if I can say anything that I believe categorically, that's it.

Justice Stevens: Because it's always irrational?

Mr. McCree: It's always irrational.

Justice Stevens: No matter what test you apply, it will always fall.

Mr. McCree: It wouldn't pass the first level of scrutiny.

Unidentified Justice: Correct.

Mr. McCree: But we think that this matter should be determined in the first level of scrutiny, as I suggested, because of the sui generis nature of raising an army to prepare for war.

The Congress is full of references to this, and of course, Article I, Section 8, specifically empowers the Congress to raise armies, to wage war and make rules for that in--

Unidentified Justice: I take it, in what you said earlier about always irrationality in the case of racial discrimination, you're suggesting then Korematsu has been overruled?

Mr. McCree: --I would think this Court would decide Korematsu differently today.

Unidentified Justice: Of course, Korematsu was decided at a time when it had not been held that the Due Process Clause of the Fifth Amendment incorporated the standards of equal protection.

That was first held in Bolling v. Sharpe, if I'm not mistaken.

And Korematsu antedated that decision.

Mr. McCree: Well, Korematsu certainly did.

Hirabayashi, was that the other--

Unidentified Justice: That was the other one.

Mr. McCree: --The other one, that was decided with it.

And I would say that even viewing the equal protection component of the Fifth Amendment as the Court would now, as applying, it would decide Korematsu differently.

Justice Rehnquist: Well, there's a certain truth to the saying that civil liberties get their greatest protection after the war is over, isn't there?

Mr. McCree: I think that's... I agree.

I can't argue with that.

I certainly can't quarrel with that assertion.

But we think that the fact that the Congress has told the... the Constitution tells the Congress, you raise the armies, you make rules for their governance, vest in them an authority that tells the courts that this is something that you should approach with great deference to the congressional primacy in this area.

There are many other areas in the Constitution, as the Court is well aware, that point up this special circumstance.

The writ of habeas corpus, for example, can be suspended in time of invasion.

And the 9th Circuit did uphold a suspension of the writ of habeas corpus in World War II, although there had not been a physical invasion of the Hawaiian Islands; this court denied certiorari in this case.

But it's some evidence of what the Constitution intended the relationship of the Court and the Congress and the Executive Branch to be in this extraordinary circumstance of waging war or preparing to wage war.

Chief Justice Burger: Well, is there anything in Article I, Section 8, that limits the power of Congress to raise and maintain armies just in time of war?

Mr. McCree: No, there is no limitation.

It's an authorization just to raise and maintain armies and naval forces.

It doesn't restrict it to time of war at all, and it tells, as we respectfully submit, it tells the courts that this is a matter where great deference should be paid to congressional determination.

And the Congress determined in this case that in the event of a mobilization what would be necessary would be raising an effective army expeditiously.

And to do this it would require flexibility.

And the flexibility that it would be afforded as the record clearly establishes is to have persons who could perform combatant as well as noncombatant roles in the Armed Services.

Unidentified Justice: Well, Mr. Solicitor General, there wasn't any evidence, or was there... was there any evidence before the Congress that registration of women would negatively affect the military capacity?

Mr. McCree: Yes, if the Court pleases.

There is evidence before the Court that although women can perform and have performed and still do perform effectively and with great credit in noncombatant roles that they are not eligible by statute and policy for certain roles in actual close combat and that it is--

Unidentified Justice: Well, does that add up to evidence that registration of women who surely are being used and could be used in other capacities than combat, does that add up to any evidence that the registration of women in and of itself would negatively affect it.

Mr. McCree: --I think it does, because at this time, at the time of mobilization, what would be necessary would be persons who could be rotated among all of the military roles that might be required, and although women could perform and do perform and have performed efficiently in the noncombatant roles, they couldn't be rotated, and flexibility is what is needed, initially, at the time of mobilization.

There is evidence that through volunteer activity it is anticipated that a sufficient number of women would be available in the event of the mobilization that was projected by the Armed Services witnesses who testified here--

Justice Rehnquist: General McCree, am I right in my assumption that no one challenges the statutory provision that women shall not be sent into combat?

Mr. McCree: --No one challenges it in this litigation.

Chief Justice Burger: Supposing... I suppose you could concede that this was an unwise statute that Congress made the wrong decision in the circumstance but that doesn't make it unconstitutional, is that?

Mr. McCree: I would certainly assert that.

I think if we defer to the Congress it really means that we defer to the right to be wrong.

If we just defer to them when we're right, it's not much of... it's not really deferring.

Justice Marshall: Getting back to this other point about combat, assuming that women are now on the training list for astronauts, couldn't they drive an airplane?

Mr. McCree: Well, I don't think there's any--

Justice Marshall: In combat?

In combat?

Mr. McCree: --I don't think there's any question about that, but the Congress, by statute, has provided that women are not eligible to perform certain functions and the Army has policies that they shall not, too.

Now, the fact that a person can pilot an airplane and even function as crew--

Unidentified Justice: And we know some men who cannot.

Mr. McCree: --And some men who cannot.

The Congress can make this kind of determination if it's something that's peculiarly committed to them and the military people will do it too.

The problem really--

Justice White: Mr. Solicitor, how did Congress make that decision?

Currently?

Perhaps they did when they passed the law originally?

They refused to change it?

Mr. McCree: --The Congress refused to change it--

Justice White: Which would have taken legislation?

Mr. McCree: --Which would have taken legislation.

Justice White: Well, was there a proposal that failed to come out of committee or was voted down on the floor or what?

Mr. McCree: There were proposals in both houses and on pages 29 through 31 of the Government's brief we set forth in the margin the committee action where this was considered fully and--

Justice White: Did it ever get on the floor?

Was it ever voted down, actually?

Was it just a committee failing to report it?

Mr. McCree: --I believe it was a committee failing to report it out, but I--

Justice White: There are not so-called congressional findings?

Mr. McCree: --No, but this was before the Congress, and the Congress did enact a joint resolution shifting funds--

Justice White: Yes?

Mr. McCree: --which means that they considered this, funds--

Justice White: Yes, they shifted funds for the registration of males.

But there's nothing in that resolution which indicates what Congress thought about these factors.

Justice Powell: Mr. McCree, Solicitor General, may I call your attention to the fact that the conference report explicitly approved the findings by the Senate Armed Services Committee, on page 100 of the conference report on the Defense Department Authorization Act.

Mr. McCree: --I appreciate that reference and I would suggest, too, that Senate Report No. 96-826 on page 159 also adopts the committee report and makes--

Justice White: The conference report was adopted by both houses?

Mr. McCree: --By both houses.

And it makes this specific finding that there was no established military need to include women in the Selective Service System.

Now, we don't contend, in further response to Mr. Justice Marshall, that women cannot perform a wide variety of roles, but the military has made this determination and the Congress has made this determination and it would be against the law to employ them in certain kinds of military activity at this time.

Justice Stevens: Mr. Solicitor General, is it not true that your entire argument assumes that that decision is a constitutional decision, to keep women out of combat?

Mr. McCree: Assumes... you mean, assumes the validity of the statute--

Justice Stevens: Yes.

Mr. McCree: --that excludes them from this purpose?

Justice Stevens: Yes.

Mr. McCree: It does, but that's not under attack.

No one has attacked this statute.

No one has attacked these policies.

And we submit further that it's... we should defer, the Court should defer to the determination of the military in a matter as vital as this at this time.

Now, it may be that they'll expand the Selective Service at another time when it appears that it would be militarily sound to do this.

Justice White: Well, did the military testify against the registration of women?

Mr. McCree: The military initially supported the registration of women--

Justice White: Yes, registration?

Mr. McCree: --but at the same time testified that they would not be inducted--

Justice White: Well, yes, but the--

Mr. McCree: --for the purpose of mobilization.

Justice White: --But the question is registration, here, isn't it?

Mr. McCree: Mr. Justice White, the question is registration but registration can't be divorced from classification and induction, because they are registered to be eligible--

Justice White: Well, the people who testified must have thought they could be separated, because they testified in favor of registration.

Mr. McCree: --But they also testified against induction.

Justice White: So they can be separated?

Mr. McCree: Well, they can, for the purposes of symbolism.

But people are registered in order to establish an eligible pool of persons who can be inducted.

Justice White: Do we judge this case on the basis that registration means mobilization of women, or that it just means registration?

Mr. McCree: I just think the Court cannot divorce from its consideration of registration the purpose for which it's done.

Unidentified Justice: Well, I know, but Mr. Solicitor General--

Mr. McCree: It is an arbitrary act to register--

Unidentified Justice: --The same committee report, if I recall it, of the Armed Services, in any event, also made a finding, didn't it, that there were, grave shortages also exist for Army surgeons and nurses?

And might not induction be limited to registrants, women registrants for jobs like that?

Mr. McCree: --Yes, if the Court please.

But their needs at this time for mobilization are for persons who would afford them the maximum flexibility, who even, put in the nursing situation, initially, could be used for combat, close combat situation, if required.

And they anticipated--

Unidentified Justice: How much of that was done in Vietnam?

What percentage of... do you have any statistic of what the percentage was of those who went to Vietnam ever actually saw combat?

Mr. McCree: --I can't testify about Vietnam.

I know something about World War II, and I know that the attrition was always at the front.

You might have, say, 100 percent of your personnel and 90 percent may be support and ten percent is actively engaged, but your turnover is in the ten percent.

And then you have to have the flexibility to move other people in there in times of emergencies.

For example, the Battle of the Bulge at the Ardennes, where cooks, bakers, everybody who could carry a rifle was pressed into service, those are roles forbidden today by statute and policy to women, for women to perform, and the testimony here is that the initial needs at mobilization would be for persons who could be rotated into any situation where there may be a military need and all we are arguing here is that the all-male registration at this time be granted.

Unidentified Justice: Didn't the Director of Selective Service testify here that if we had to mount an effort in Europe we'd need 650,000 males and 80,000 women?

Mr. McCree: Those are the figures that I recall.

Unidentified Justice: Well, wasn't that in support of the idea that we ought to register women so that we can get that 80,000 even in a period of mobilization?

Mr. McCree: He thought the 80,000 women would be furnished by volunteer--

Chief Justice Burger: Didn't Admiral Hayward and General Wilson both testify to that effect?

Mr. McCree: --This was their experience in the light of females volunteering for the service.

Justice White: You said that initially military people testified in favor of, Defense Department representatives testified in favor of registering women.

Did they change their mind, or was that their consistent position?

Mr. McCree: The Congress decided against them.

They did not... no, they did not change their mind.

Justice White: So from a military standpoint there was not only no objection to registering women but they supported it?

Mr. McCree: Except their testimony has to be understood in the light of their further testimony that even if we registered them that we would not induct them.

Justice White: I understand, but nevertheless, Congress overruled them?

Mr. McCree: And the Congress, to which the Constitution gave the authority to raise an army, decided in the light of the testimony that they would like to register women but they would not induct them, decided not to provide for the registration of women at this time.

Chief Justice Burger: There's nothing unusual about the Congress not agreeing with the Executive Branch on a particular issue, is there?

Mr. McCree: Not in my experience, Mr. Chief Justice.

Justice Brennan: Mr. Solicitor General, if we don't agree with you that the rationality test is applicable here but some heightened test like Craig v. Boren... your time's running out... what have you to say to that if we disagree with you and say there has to be the heightened scrutiny test?

Mr. McCree: We believe that we satisfied Craig v. Boren.

We believe here that this is an important governmental objective to raise an army and we believe that registration is substantially related to it, and registration of men is, in the light of--

Justice Brennan: When you say "substantially related", is that because of some finding that women are not needed in the military, or must there be some burden that the registration of women would affirmatively cause some kind of problem?

Mr. McCree: --Oh, I don't think there must be a showing that women would cause some kind of problem.

I think we have to show--

Justice Brennan: Well, then, would you have to show that under the heightened scrutiny would you at least have to show that women are not needed in the military?

Mr. McCree: --I don't even think we'd have to show that women are not needed.

I think we'd have to show that to adopt this policy would create a greater likelihood of achieving the important objective, than the rational level cases that it would be somehow related to achieving that--

Justice White: Wouldn't an adequate answer to Justice Brennan's question be that you need them in the military but you don't need to register them?

Mr. McCree: --I appreciate that suggestion--

Chief Justice Burger: That was supported... that was supported, I repeat, by the testimony of Admiral Hayward and General Wilson, the Commandant of the Marine Corps that they could get all they needed on volunteer service.

Mr. McCree: --Just one other thought, if I may have just one moment.

The Congress may also have determined that to process women registrants at this time, since we're talking about 51 percent of the population, they'd need to allocate twice as many resources just for the registration and classification, and if they're not going to induct at this time--

Unidentified Justice: Isn't that just an argument of administrative convenience?

Mr. McCree: --I think it's more than that.

It's an argument of talking about finite resources and how they should be allocated.

I see my time has expired.

Thank you.

Chief Justice Burger: Mr. Weinberg.

ORAL ARGUMENT OF DONALD L. WEINBERG, ESQ., ON BEHALF OF THE APPELLEES

Mr. Weinberg: Mr. Chief Justice, and may it please the Court:

I think there are four propositions, none of which is seriously disputed in this case, which place into perspective just what is and what is not at issue in this case.

And I think these are four points of reference of which we ought not lose sight.

First, registering women for the draft does not dictate any number of women who will be drafted nor the roles which they would fill if they were drafted.

Instead, registration of women opens the possibility of drafting women to fill the very positions in which they may now or in the future serve as volunteers if there is not an adequate rate of volunteers for those positions.

Justice Powell: May I interrupt you at this point and ask, is it not possible that your next suit, if you win this one, and if women were not drafted on an equal basis with men, would not the same men who are complaining here today bring suit on that basis?

If not, why?

Mr. Weinberg: Well, I don't think that that would be the case.

One of the issues that the District Court specifically said was not before it and would in fact be inconsistent with its rationale and the rationale of this suit is--

Justice Powell: Inconsistent in what way?

Mr. Weinberg: --Inconsistent in that the theory of this suit and the theory of the District Court was that you register people as an inventory.

Justice Powell: You register them equally.

Mr. Weinberg: Register equally as insurance against an unpredictable future.

We don't know what needs are going to eventuate.

We don't know what the assignment policies are going to be when they do.

Justice Stevens: What interest do your clients have in having women registered if there are none of them going to be drafted?

It seems here there's no interest whatsoever in just pure registration.

Mr. Weinberg: Well, I don't think that that's true, that we can say that none will be drafted.

The important point is, we don't know who will be drafted.

If most--

Justice Stevens: But you must assume that some of them will be drafted or there's nothing worth fighting about.

Mr. Weinberg: --It is safe to assume, I think, that over--

Justice Stevens: Therefore there is a connection between registration and drafting, so your first proposition is wrong.

Mr. Weinberg: --No, Your Honor, I have to disagree with that.

There is, of course, a connection between registration and drafting.

But what's important is that the connection is not that we draft everyone we register or that we draft randomly--

Justice Stevens: Do you concede that the Government may draft in unequal numbers, that they could set quotas that 75 percent of the draftees will be male and 25 percent will be female?

Do you concede that?

Mr. Weinberg: --I would concede, indeed, I would embrace the point that the military needs at the time that mobilization is necessary ought to dictate the proportion in which men or women are drafted.

Justice Stevens: And do you concede that there are different military needs for men and for women?

Mr. Weinberg: There may be at a given time.

Justice Stevens: But today?

They need 650,000 men and 80,000 women.

Is that a legitimate constitutional difference in need?

Mr. Weinberg: It would support a differential induction.

It would not support a differential registration.

Justice Stevens: But you would concede that a differential induction would be constitutionally permissible?

Mr. Weinberg: Yes; based upon military needs.

Unidentified Justice: Mr. Weinberg, if you continue to prevail in this case, does that mean that every past registration and conscription act of this country is unconstitutional?

Mr. Weinberg: I don't believe that that would be the case.

Questions of constitutionality and retroactivity would, I think, generally be resolved against the retroactivity of the decision.

In a case like this I would note that both the factual setting and the legal standard have been developing over time and I don't see the kinds of clear signposts to retroactivity that are usually associated with rendering a finding of unconstitutionality to be--

Justice Rehnquist: How about veterans' preference acts?

Mr. Weinberg: --Pardon?

Justice Rehnquist: How about veterans' preference acts dating from previous draft acts?

Mr. Weinberg: I think that the Court decided that in Feeney and noting in Feeney that the result of the veterans' preference winds up disproportionately favoring men was a function of the service, which, incidentally, was a result of the inequality of conscription, among other things.

I don't think that that would require the voiding of any veterans' preference statutes because the fact is still that the people served and earned their veterans' preference as opposed to being registered to serve.

And I think that, again, we come to the question, we can no more say who would have been drafted than we can say who will be drafted.

And it's that, particularly that prospective uncertainty that we don't know today what the military needs will be if and when we ever have to draft, that is really the distinction between registration on the one hand and conscription on the other.

Chief Justice Burger: Mr. Weinberg, up to now your arguments, at least as I follow it, is that there were better ways to do it than Congress did, there were more logical ways, but, does that make it, the failure to do that, does that make it unconstitutional?

Mr. Weinberg: Well, we go well beyond saying--

Chief Justice Burger: You haven't got that far yet?

Mr. Weinberg: --That's true, Your Honor.

We do go well beyond saying that what Congress did was merely illogical.

It was in fact directly contrary to the ostensible purpose, the declared purpose of the statute and for that reason could even be fairly characterized as not having a rational relationship to a legitimate articulated or obvious governmental interest.

Justice Rehnquist: Yet you don't challenge the statute that prohibits the use of women in certain combat positions?

Mr. Weinberg: With all due respect, Mr. Justice Rehnquist, we deny the existence of such a statute.

With respect to the Army, there is none.

With respect to the Navy, there is no statute barring women from combat, merely from assignment to ships or airplanes with combat missions.

For example, in the Navy, women are eligible for assignment to the Seals, which is the Navy version of the Green Beret Special Forces.

Justice Rehnquist: Would a decision in your favor here have any effect on Navy policies?

Mr. Weinberg: You mean the statute?

Justice Rehnquist: Right.

Mr. Weinberg: It would not directly implicate that statute.

I would point out that for now several years both the Air Force and the Navy, which are the only two services subject to such statutes, have been requesting the repeal of such statutes on grounds having absolutely nothing to do with registration or the draft, but merely having to do with their own military management.

So what we're really talking about is, I think, the Army situation where the Army now has the right to decide assignment questions according to its own lights, according to its own perceived needs, and I think this is one of the things which distinguishes particularly Admiral Hayward's testimony, because when he said, we will be able to fill it, he was talking about the Navy and the naval requirement for women is very small because the freedom of assignment in the Navy is very small.

In the Army it's a very different case.

Justice Rehnquist: You don't challenge here the freedom of assignment in the... rather, the limitation of freedom of assignment in the Navy or the Air Force?

Mr. Weinberg: This case does not raise that.

Justice Rehnquist: And you don't challenge it?

Mr. Weinberg: No.

It's irrelevant to the decision of this case.

Unidentified Justice: Well, we judge this case on the assumption that that is valid.

Mr. Weinberg: That is correct.

Indeed, the... one of the most important points that I would hope to make is that the District Court assumed the continuing applicability of all current limitations in all services on numbers and assignments of women, and still found as a fact that all-male registration did not enhance military flexibility or the ability of the nation to respond to the full range of possible futures which might confront us.

More importantly, in fact, it found that the exclusion of women from registration undermined military flexibility and that is a finding of fact which has not been attacked here as clearly erroneous.

And on the record, I submit, could not be attacked as clearly erroneous--

Unidentified Justice: Mr. Weinberg, the District Court's analysis, of course, was in the context of the heightened scrutiny test, the Craig v. Boren test, wasn't it?

Mr. Weinberg: --Yes, Your Honor.

Unidentified Justice: Suppose we don't agree that was correct, what have you to say to the Government's argument that in any event what ought to be applied here is the rational basis test, and by any measure that that test is satisfied?

Mr. Weinberg: Well, the finding of fact that military flexibility is in fact undermined by exclusion does not depend upon what test is used in the analysis.

That's a finding of fact that is based directly on the testimony of the military, and I would only comment here what the testimony of all of the Joint Chiefs was, and that was, we should register--

Unidentified Justice: What's this go to, the legitimacy of the Government interest?

What?

Mr. Weinberg: --Pardon?

Unidentified Justice: What does it go to?

The legitimacy of the governmental interest?

Mr. Weinberg: No, Your Honor.

We certainly would concede the legitimacy of the governmental interest in raising an adequate armed force.

That is indeed the statutory purpose.

What it would go to is the rational relationship, or on a heightened scrutiny basis, the substantial and close relationship to that interest, and in fact the finding of facts here as supported by the overwhelming record is that the exclusion of women from registration, which means excluding them from the pool of people to whom we can turn in time of war, in time of emergency, for the skills that we know they do possess and the very skills that we have sought to bring into the Armed Forces by increasing the female volunteer rate and the level or volunteer soldiers, we would exclude ourselves from being able to turn to those and the District Court found, and I submit, correctly, certainly not clearly erroneously, that that objective is undermined by excluding women from the registration pool.

Unidentified Justice: Wouldn't that objective be equally undermined by excluding everybody under 18 and everybody over 26?

Mr. Weinberg: I think not.

We again have a great body of--

Unidentified Justice: That includes an awful lot of people with a lot of different and varied experiences.

Mr. Weinberg: --Yes, it does.

Unidentified Justice: That the military could well use, I suppose.

Mr. Weinberg: And under certain circumstances, eligibility for induction continues well past the age of 26.

The important thing is, here we focus on registration.

Unidentified Justice: You did not attack the constitutional validity of the statute based upon its discrimination in favor of everybody in this country under 18 years of age and everybody in this country over 26 years of age?

Mr. Weinberg: No, Your Honor, for two reasons I don't think an age discrimination case would have been appropriate.

First, the age discrimination standard is clearly the lowest standard.

And, more importantly, there are a great number of reasons consistent with the statute, particularly the maintenance of a strong economy and to minimize as equitable, fair, disruption of life that would be supported by limiting the exposure and... here again, we're talking of exposure of induction.

Justice Stevens: We're only talking about registration.

Mr. Weinberg: And that's what I'm saying, that--

Justice Stevens: Because from what you suggest, you might as well register everybody over 26 and get a much larger pool to draw from.

There are a lot of retirees, for example, who can perform noncombatant service very well.

Chief Justice Burger: And a lot of former servicemen are over 26--

Mr. Weinberg: --And to the extent that they generally have continued service obligations and so are within the reach of the statute.

Justice Rehnquist: --That's not necessarily true at all.

When you're mustered out you're generally given the option whether to remain in the reserve or not, and I at least, speaking from my own experience in the Second World War, I opted for just getting out.

Chief Justice Burger: How do you distinguish the policy question involved in fixing the ages and the policy question made at this stage for limited purposes of excluding women?

Aren't they equally policy decisions by Congress, whether wise or unwise?

Mr. Weinberg: Well, to start with, the policy decision to exclude women which was made in 1948 was not a considered decision at all.

There was a good deal of testimony as to what a suitable age for exposure to service would be.

There was no such consideration of including or excluding women using traditional statutory interpretation methods, the contemporaneous statutory history before the same committees, the same Congress, at the same time, the Women's Armed Service Integration Act, I think was quite fairly characterized by the District Court as having been passed in an atmosphere permeated with chauvinism.

There were... the only testimony--

Chief Justice Burger: Since when is it the function of the courts to inquire into the atmosphere in which the Legislative Branch acts?

Mr. Weinberg: --Where the atmosphere is shown in specific testimony, in specific statements.

Chief Justice Burger: Well, in a case of our Court, this Court, that... do you suggest that that's a proper criterion?

Mr. Weinberg: I think that in the Arlington Heights case where the question came up, starting, if it's not clear on its face, we then look for congressional intent, indeed, in this very statute on the amendment that was considered in O'Brien, where you looked to whether there was any evidence of an improper intent.

Now, in that case, of course, you found that there was none.

In the case that's before you today, the clear testimony and the clear statements before Congress in 1948 to the effect that, well, no one would want a Wave officer commanding him, that the men would object to being under the command of women, that women would get married and so never qualify for pensions; the entire atmosphere... and, perhaps atmosphere was the wrong word for the District Court to use.

But the record is clear that there was nothing beyond stereotypical consideration.

Unidentified Justice: Well, Mr. Weinberg, if we disagree with the District Court and with you that there ought to be a heightened scrutiny standard here and agree with the Government that that it should just be the rational basis test, can we affirm the judgment of the District Court?

Mr. Weinberg: Yes, I believe you can.

Unidentified Justice: How?

Mr. Weinberg: Particularly, because the defense for the statute even under the rational relationship test is the military flexibility argument that the Solicitor General has described and because that argument simply does not relate in any rational way to either the facts or the intent of the statute, the function of the statute.

Justice White: Yes, but if it's just a rational relationship, I would think if you, unless you disbelieve that you could get as many women as you wanted, or that were needed, on a voluntary basis, it would be quite rational to decide not to go through the entire rigamarole of registration and the drafting of women just to get the ones you could get without any expense whatsoever.

Mr. Weinberg: Well, in fact, there is no substantial basis in the record for believing that we can with confidence predict that we will be--

Unidentified Justice: Well, is there any basis for our believing that we can't?

Mr. Weinberg: --Yes.

Unidentified Justice: In the record?

Mr. Weinberg: In the record.

We have history, to start with, that--

Justice Rehnquist: Well what record are you talking about?

Mr. Weinberg: --The record before the trial court and the record before Congress.

There was great overlap between the two.

Justice White: What if we read the record different than you did and then thought that there was not only ample basis in the record but a finding, and evidence, that you can get the women without registration?

What then, under the rational relationship test?

Mr. Weinberg: If it could be stated that we can safely predict that there would not arise a situation where volunteers would be inadequate, that would be a different situation, but that's not what we face with registration.

Justice White: Well, that isn't what I asked you.

Would that satisfy the rational relationship test?

Mr. Weinberg: Yes, if we had a guarantee, yes, is really would not be needed; the answer is yes.

And that goes, I think, to the very distinction between registration, which is insurance against failing to have volunteers and providing against the broad range of unpredictable futures which do confront us, and conscription, which is the decision when one of those futures becomes our present, to say, these are what our needs are.

We either have or don't have enough volunteers; we need to draft for certain positions.

Unidentified Justice: Well, Mr. Weinberg, finally, why isn't the rationality test, in light of the clauses of the Constitution we're dealing with, the proper test here?

Mr. Weinberg: First of all, this Court, although often asked to, has never accepted a military relationship or national defense exception to normal standards of constitutional scrutiny.

Unidentified Justice: What about Schlesinger v. Ballard?

Justice Rehnquist: And Parker v. Levy?

Mr. Weinberg: Parker, like Glines and Huff, and Greer v. Spock, are so-called military enclave cases, and they all go off on Parker v. Levy's language about the military being a separate society unto itself internally requiring for matters of discipline and base morale a separate standard.

This statute--

Unidentified Justice: And we said there that the constitutional First Amendment overbreadth attack that was available in the nonmilitary context was not available in the military context.

Mr. Weinberg: --That's within a military enclave.

This is not a military enclave case, this is more like Snepp.

Indeed, I think that's the only situation where this particular Act has been brought into question.

And there the Court required the Government to show that the distinction drawn was strictly justified by a substantial governmental interest in waiting for it.

Unidentified Justice: What about Ballard?

Mr. Weinberg: With Schlesinger v. Ballard, there are a number of distinguishing characteristics--

Unidentified Justice: That was within the military as well.

Mr. Weinberg: --Pardon?

Unidentified Justice: That was within the military.

Mr. Weinberg: That was most directly within the military.

It was an internal matter to the military where it was promotion geared to the military's express desire for the proper pyramid of promotions.

Frontiero was also internal to the military.

Unidentified Justice: What was the holding in Frontiero?

Mr. Weinberg: In Frontiero the holding, I believe, was that the distinction drawn--

Justice White: This was in the military?

Mr. Weinberg: --It was within the military, but because the distinction drawn was based on stereotype, it failed the heightened scrutiny.

Justice White: Failed heightened scrutiny?

Mr. Weinberg: Heightened scrutiny.

Justice White: Not the rational relationship?

Mr. Weinberg: Definitely not the rational relationship.

Unidentified Justice: It was not a Court opinion in Frontiero, is that correct?

Mr. Weinberg: There was a plurality opinion in Frontiero--

Unidentified Justice: Not a Court opinion, so it's difficult to say what it was based on.

Justice White: What was the fifth vote based on?

Mr. Weinberg: --The fifth vote was based on... I believe, Your Honor, that the fifth vote was based upon an application of a test that went far beyond rational basis.

It was in effect, I think, a heightened--

Unidentified Justice: Reed v. Reed, wasn't it?

Mr. Weinberg: --It was Reed; exactly.

Unidentified Justice: Why doesn't Reed apply?

Mr. Weinberg: It's a heightened scrutiny but--

Unidentified Justice: Well, the test is a test of the Equal Protection Clause of the Fourteenth Amendment as--

Mr. Weinberg: --As it applies to gender, which was a close and substantial relationship.

Justice Rehnquist: --Reed v. Reed just says this Court scrutinizes cases that are brought before it.

Mr. Weinberg: It looks for a substantial relationship, and that, I think, Craig v. Boren says that's what Reed says.

Schlesinger's important, really for the ways in which it differs from this case.

Every case, I think, in this Court that has ever cited Schlesinger, and has purported to follow Schlesinger, has emphasized that Schlesinger was a compensatory ameliatory act, that in fact it was uniquely so, because the very men who brought that action were the precise men who had benefited from the assignment differential, which means access to promotion differential, and so that case really is perhaps the archetype of compensatory--

Unidentified Justice: Like Kahn and Shevin?

Mr. Weinberg: --Like Kahn and Shevin.

It is usually cited seriatim to Kahn and Shevin.

The other thing is, of course, Schlesinger was an internal military case, and most importantly, as far as I can see, differentiating it between this case, other than the internal military matter, is that the basis of classification was not simply gender.

The explicit basis of classification was gender except where the access to the promotions was equal, at which point there was no differentiation.

This Court emphasized it, I think, at least three times in Schlesinger, that where men and women, for instance, in the Medical Corps or the Legal Corps... several other corps... had equal access to assignments geared to foster promotions, there was no difference in the time permitted to achieve promotion.

And that, I think, is very, very important.

The other thing is that historically Schlesinger was not based, even arguably, on stereotypes.

It was demonstrably based upon a recent congressional reconsideration in 1967, in fact, of precisely what was going on.

They found that there was still a gap in assignability, and there was still a gap, most particularly in how long it was taking men and women to achieve promotions.

And so Congress there did reenact, literally, as opposed to what happened here, major provisions of that entire series of statutes, so there really was congressional consideration there.

That's not the case here.

Justice Stevens: Mr. Weinberg, before you... I see your light was gone on... before you sit down, I'd be interested in hearing what the other three of the four points are that were controlling.

Mr. Weinberg: Thank you, Your Honor.

I think the only one that didn't come up, actually, in the questioning is that in order to justify male-only registration, the burden of the appellant at trial and to prove that it was accomplished at trial here, was to prove a need to exclude women from registration.

Unidentified Justice: Well, it seems to me... maybe I'm out of step, but it seems to me you have the cart before the horse.

I don't think, I have never understood that it was up to the Government to justify an act of Congress.

I had thought that an act of Congress is presumptively valid, and that it's up to you to show why it's invalid.

Mr. Weinberg: Except where that act draws some form of discriminatory--

Unidentified Justice: Well, as the Solicitor General has pointed out, Congress here exercised one of its explicit powers under the Constitution and with that you don't agree?

You do agree.

Mr. Weinberg: --If it was an assignment that--

Unidentified Justice: And I didn't understand the Solicitor General to suggest, and I hope he didn't suggest, that Congress even in the exercise of an explicit power such as this is not governed by the explicit prohibitions in the Constitution, and one of them is contained in the Fifth Amendment, and that's the one upon which you rely.

And that's really the issue here.

But the statute is presumptively valid, isn't it, like any statute enacted by any legislature?

Mr. Weinberg: --I think not, as this Court said as recently as--

Unidentified Justice: There is no question of the power.

Mr. Weinberg: --There's no question of the power--

Unidentified Justice: And the question is, is that power limited or prohibited?

Mr. Weinberg: --I would go one step further, as this Court has repeatedly said, when a legislature, including Congress, enacts a statute based upon gender and the distinction of gender is on the face of the statute, it is based upon gender, it is the burden of those defending the statute to come forth and establish by empirical evidence, in fact--

Unidentified Justice: Well, perhaps... maybe the Court has said that, but I trust I never have because I don't think they're defending a statute, I think you're attacking it.

Mr. Weinberg: --But, Your Honor, once the attack shows that it was gender-based discrimination, this Court--

Justice Stevens: But doesn't the burden shift as soon as the Government does... and you've conceded they've done here... show there's a difference in military need based on sex?

You conceded that's permissible.

Mr. Weinberg: --Your Honor, that would affect registration only if two different statutes were involved, one, a statutory prohibition on women participating in certain close combat activities, and the other, more importantly, a change in the Military Selective Service Act limiting the induction of people to people who will be assigned to those prohibited roles, because otherwise we are conflicting with history and Congress did not mean to conflict with history because we have always, as the testimony of General Tice and all the generals is clear, we have always drafted a very substantial, indeed, often a majority of draftees specifically for the noncombat areas.

And most importantly, the argument of flexibility was specifically refuted by General Abrams and other generals in the testimony because we are saying that there is a certain number of women that the military wants to have, welcomes, thinks is the optimal number for the defense of the country.

You cannot at the one point say that that is the military opinion and at the same time say that if those slots are filled with draftees rather than volunteers, we undermine flexibility.

The testimony of every Defense Department witness and every military witness was that all of those criteria, the reach-back, the flexibility, the rotation, the promotion rotations, the assignment rotation, were all taken fully into account when the military said, please let us register women, and let us decide whether they should be drafted, if and when the time for a draft comes.

General Abrams said that he didn't favor drafting women at the time because he didn't favor drafting men at the time.

They were in an all-volunteer mode, as he said, and that since present needs for both men and women were being met with volunteers, he didn't favor drafting anybody at that time.

Secretary Brown kept saying to Congress, let us register people now; and then, when we see what the need is, we can draft them.

This was what we came within a hair's-breadth of doing in World War II with respect to nurses.

I would only point that the utilization question is contrary to what the Government says.

For example, ministers are required--

Justice Stevens: I would just ask if the case would be different in constitutional terms if the military had taken the position, we don't like women, we don't want any of them in the Army?

Would it be a different constitutional issue?

Mr. Weinberg: --It would be a different matter of somehow meeting an evidentiary burden.

Justice Stevens: Which they might have said in 1948, by the way.

Mr. Weinberg: They didn't.

As a matter of Fact, General Eisenhower's statement to the Congress in 1948 was, if we ever have another war, we have got to draft women.

And that was based upon their performance even in the more limited numbers and roles that were used in World War II.

I would point out that--

Justice Powell: Mr. Weinberg, you have emphasized the testimony and I quite agree with you, if I were in your place I would, of some of the military men.

I think you can find conflicting statements if you read in all.

But what I wanted to ask you is this.

The Armed Services Committee of the United States Senate by a vote of twelve to five reached an entirely different result from the one that you reached, and they heard the testimony, not only this year but they've been hearing it for years.

Now, did the District Court reject specifically a single one of the 11 findings made by the Senate Armed Services Committee that were in turn approved by the conferees of both houses and in turn by both houses of Congress?

Mr. Weinberg: --Yes, I think the District Court specifically rejected a number of them.

Justice Powell: All eleven?

All eleven?

If so, do we accept the rejection by the District Court that tried a lawsuit that were contrary to the findings of the United States Congress?

Chief Justice Burger: We can read the testimony as well as the district judge could read it.

Justice Powell: And if so what authority justifies us in doing that?

Justice Rehnquist: Perhaps the Kassel opinion handed down this morning.

Mr. Weinberg: I have not had the opportunity to read that.

The treatment of what happened in 1980 as congressional action was... the conference report said that there was no need to include women.

It did not find an affirmative need to exclude women: Again, Congress was dealing, I think, with the wrong question in that respect.

More importantly, perhaps, the activity of Congress in 1980 was not a reenactment or reconsideration of this situation.

The appropriations aspect of it, the House Joint Resolution, didn't even mention the word "registration".

It was a transfer of otherwise unobligated funds from the Air Force to Selective Service for the purpose of salaries and expenses.

I think Ex Parte Endo with its requirement for explicit mention of a particular expenditure rationale says that that would not suffice.

Now, with respect to S. 2294, the Authorizations Act, again--

Chief Justice Burger: I think you're going beyond Justice Powell's question now.

Your time has expired, unless Justice Powell wishes to?

Yes, your time has expired.

The case is submitted, gentlemen.

Thank you very much.