Feminist Judgments

Without the dissent by Justice Thurgood Marshall and the historic context, the reader of Rostker v. Goldberg might wonder why this opinion was selected for a feminist re-envisioning. The U.S. Supreme Court in Rostker upheld Congress's Military Selective Service Act (MSSA) determination that only men must register for military service. Based on its strong deference to Congress's war powers, the majority opinion defined the constitutional standard for review of gender equality almost entirely out of the case. The reader must read ten pages into the Rostker majority before finding the acknowledgement that the Constitution prohibits the state from denying men or women equal protection of the laws. Yet everything about the case's political, legal, and social context positioned gender equality at the center of the issue presented, rather than as merely an incidental byproduct of a question about military readiness.

THE ORIGINAL OPINION

Perhaps the centrality of gender equality was lost in Rostker because it began as a class action filed by men fighting against the Vietnam War itself, not by litigants fighting for gender equality. The male plaintiffs alleged that the male-only registration requirement violated the Equal Protection Clause, leveraging Reed v. Reed's iconic shift in constitutional review of gender classifications. A year earlier, in Reed, the Court had struck down a mandatory male preference in an estate administration hierarchy. Although the Reed opinion did not explicitly define a heightened standard of review, the Court's striking down the statute despite its administrative convenience appeared to signal a new era of heightened scrutiny.

While Rostker was pending for many years, the Court's equal protection review of sex classifications became increasingly clear and vigorous throughout the 1970s. The Rostker class action was dormant after President Ford revoked the draft in 1975, returning to an All-Volunteer Force and pushing for a rigorous review of the selective service program. In 1980, President Carter reinstated the draft and asked Congress to include women in registration.

The registration requirement reinvigorated the Rostker class action and positioned it squarely within the context of recent equal protection cases establishing heightened standards of review for sex-based classifications. In Frontiero v. Richardson, a Court plurality struck down a statute treating male and female dependent allowances differently based on a presumption that women were economically dependent on their spouses, but men were not.