Academic

Hasday on Women in the Military and Extrajudicial Constitutional Change

By Lawrence Solum

Jill Elaine Hasday (University of Minnesota Law School) has posted Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change (Minnesota Law Review, Vol. 93, No. 1, 2008) on SSRN.  Here is the abstract:

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

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

And from the text:

The transformation in women?s military role since Rostker clearly does not count as constitutional change if the question is meant to determine whether courts would have required this transformation if Congress, the executive, and the military had not acted. Rostker placed no pressure on Congress, the executive, or the military to alter women?s military role. The opinion upheld male-only registration, endorsed male-only conscription and combat, and appeared to permit any form of sex-based distinction in military service, including women?s complete exclusion. If extrajudicial actors had not spent the years since Rostker transforming women?s military status, moreover, Rostker?s foundation would be no weaker today than when announced.

The transformation in women?s military role since Rostker also does not count as constitutional change if the question is meant to determine whether Congress, the executive, and the military stated after Rostker that they were constitutionally obligated to make the changes in women?s military status that they enacted. These extrajudicial actors have not contended that they were required to act. This is unsurprising. It is not clear how often Congress, the executive, or the military ever reason in terms of an affirmative constitutional obligation upon them. Indeed, the notion that specific actions are required to remedy specific constitutional violations?common when a court must decide the specific case before it?might be in some tension with the incremental process, marked by compromise, that Congress, the executive, and the military often employ, and that they used to expand servicewomen?s role.

However, the transformation in women?s military role since Rostker does count as constitutional change if one is trying to understand the basic normative commitments that shape the meaning of constitutional equal protection as it evolves. This transformation has made modes of structuring women?s military service that were once widely accepted as right, reasonable, and equitable, now appear wrong and invidious. In the governmental and popular debates over women?s military role that raged in the 1970s and early 1980s, even many people determined to establish sex equality in constitutional and statutory law believed that Congress and the military should organize women?s military service to protect the primacy of women?s domestic obligations and should exclude women from combat positions. Rostker?s interpretation of equal protection reflected that contemporaneous understanding of sex equality, and the courts? jurisprudence on women?s military service has remained static since. From the standpoint of constitutional principle, this view of constitutional equal protection may have been wrong from the moment of its conception because it treated women as less than full citizens, and denied women equal access to the benefits and burdens of military service simply because of sex. But as a functional matter, what constitutional equal protection means in practice at any given point in history tends to reflect and respond to widespread, evolving understandings of the requirements and implications of equality. From the early 1990s to the present, Congress, the executive, the military, and the public have increasingly come to believe that the conception of women?s military role dominant as recently as the early 1980s is inconsistent with their commitments to sex equality, and they have expanded women?s military service, including in combat. Over time, this shift in perspective is likely to lead people to make different claims for change and to shape judgments about how the Constitution?s open-textured language of equal protection applies to specific questions about women?s legal status in the military. More aspects of women?s military status are likely to be scrutinized for their consistency with constitutional norms of equal protection, challenged as unconstitutional, and changed in the interest of sex equality.

Courts are one place this shift in perspective might register. But at least in the short term, they are probably not the most important place. Extrajudicial changes in women?s military role have undermined Rostker?s foundation. Where Rostker assumed that women?s exclusion from combat was too commonsensical to require explanation, male-only combat positions now need justification and appear constitutionally vulnerable because women?s combat service is widely accepted as reasonable. However, courts typically have not been prominent agents of change in the military context, where the judiciary?s symbolic authority is relatively low.

Very interesting & highly recommended.

Full post as published by Legal Theory Blog on September 02, 2008 (boomark / email).