Constitution Check: Do women have a constitutional right to serve in military combat?

Constitution Check: Fact-checking the news

Are women guaranteed a constitutional right to serve their country in direct active- military combat? Lyle Denniston looks at a lawsuit that seeks to break the glass ceiling on the battlefield.

The statement at issue:

“We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman.  It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.”

– University of Virginia law professor Anne Coughlin, in a news release issued by the Law School on May 24, discussing a new lawsuit filed that day challenging the constitutionality of the Pentagon’s continued policy of excluding women from assignment to Army and Marine units that engage in direct hostile combat with enemy forces.

We checked the Constitution, and…

The history of women’s service in the U.S. military has been developing for more than a century – going back to 1908, when women were first allowed to become Navy nurses – and it has always been much more an issue of military management than of constitutional dispute.

Since the early 1900s, the history has been a story of change, though only gradual in pace and scope.  But there is one constant in this history: women have never been allowed to serve in Army and Marine combat units – that is, those military units with the primary mission of engaging in direct hostile combat with an enemy.   They can now fly planes or helicopters, or serve on submarines, but not in infantry platoons.

Even as recently as last February, the Pentagon, in opening up more than 14,000 new positions to women servicemembers, retained the ban on their serving in “ground combat operations.”

That ban, first made a formal policy in 1993, has always been based on the unwillingness to have women soldiers exposed to direct fire from the enemy, direct engagement with enemy troops, or the risk of capture.  In short, the idea was the protective one that women had no place on “the front lines.”

One of the new pressures on those ideas, though, is that in modern warfare – as in Iraq and Afghanistan – the concept of a “front line” has vanished.  Anywhere in a country where there are hostile insurgent forces, using roadside bombs, for example, there is no longer what military experts call “the linear battlefield” made up of “forward” and “rear” positions.

And, of course, the realty in the wars in Iraq and Afghanistan has been that women are quite often among the casualties, despite the formal ban on their serving in combat units.  More than 800 women have been wounded in those two conflicts, and 144 have been killed.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

And there is a further reality that translates into a “glass ceiling” for women in the military, especially in the Army.  Four out of every five generals in the Army have backgrounds in combat operations, so service in that line of military duty is a channel – mostly open to men – to the highest ranks.

The military has been creating increasing opportunities for women, for two main reasons: their skills and talents are needed in an all-volunteer force, and the success of women’s advocacy groups in challenging gender barriers in many sectors of American society has had its impact on the military, too.

But the new lawsuit filed by Professor Coughlin, some of her students and outside lawyers faces three potential obstacles as it makes its way through the federal courts, perhaps up to the Supreme Court.  Those barriers are in the Constitution itself, or are in Supreme Court rulings interpreting the Constitution.

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.”  Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights.  For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions.  In 1981, in  the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men.  It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty.  The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

Clearly, constitutional notions have changed, and the new lawsuit against combat exclusion could show how far that change has gone.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Two weeks ago, we commemorated the 58th anniversary of one of the most foundational legal decisions in contemporary American history.

This week marks another milestone in the civil-rights movement: the Supreme Court decision known as Brown II.

On April 17, 1954, in Brown v. Board of Education, the nation’s highest court declared segregation in public schools to be unconstitutional.

The Warren Court

Chief Justice Earl Warren, writing for a unanimous bench in Brown I, held that “in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.”

The first Brown verdict was no doubt momentous.  But it was also largely symbolic.  It would take more than a year for the Supreme Court to determine how to implement this new integrationist mandate.

It was 57 years ago tomorrow that the same court delivered a decision that would chart the course of public education in the United States for more than half a century.

On May 31, 1955, the last day of the spring term, the Warren bench issued its judgment in Brown II, placing the practice of desegregation in the hands of local governments.

“At stake is the personal interest of the plaintiffs in admission to public school as soon as practicable on a nondiscriminatory basis,” Chief Justice Earl Warren wrote.  “To effectuate this interest may call for the elimination of a variety of obstacles in making the transition.”

These obstacles arise out of the specific local conditions of each individual district, Warren continued.  And the responsibility for administering such policies falls on individual school authorities.

As such, the decision concluded, the question of relief should be determined by the local courts that heard the original questions–and it is the responsibility of those courts to ensure that remedies are afforded “with all deliberate speed.”

These four words set into motion decades of upheaval, as communities around the country struggled to negotiate this federal mandate toward desegregation.

Some elected to close down public schools, to avoid the prospect of integration.

In Prince Edward County, Virgina, the entire school district shut its doors in September 1959.  For the next five years–until the U.S. Supreme Court declared the practice unconstitutional in 1964–the county provided students with tuition grants to attend local private schools, all of which maintained whites-only admissions policies.

Others developed “freedom of choice” plans.  Here, students were automatically enrolled in their previous schools but were given the option of requesting a transfer to another school within the given district or county.

In theory this meant that families could choose where to send their children to school.  In practice, however, this choice was impaired by complicated transfer applications, geographic restrictions, and threats of violence and intimidation.

In New Kent County, Virgina, during the three years that the district’s freedom of choice plan was in effect, there were no white students who chose to attend previously all-black schools, and only 15 percent of African American students–115 children in all–successfully enrolled in previously all-white schools.

More broadly, in the decade following the Brown decision, only 1.2 percent of black students in the 11 of the former Confederate states attended schools with white students.

As legal scholar Charles Ogletree writes, “Whereas Brown I made possible the institutional equality first promised in 1776 with the Declaration of Independence… and again in 1865 with the ratification of the 13th and 14th Amendments, Brown II created the method and manner in which America would resist the mandate of the equality ideal.  If Brown I made integration a legal imperative, Brown II, with its decision to proceed “with all deliberate speed,” ensured that the imperative was not implemented as a social imperative.”

The localization of desegregation had the effect of creating a vastly uneven educational landscape in the United States in the latter half of the 20th century, a legacy with which the nation continues to grapple today.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.

For further reading, see:

Charles Ogletree, All Deliberate Speed: Reflection on the first half century of Brown v. Board of Education. New York: W.W. Norton and Company, 2004.

William Gordon, “The Implementation of Desegregation Plans Since Brown,” Journal of Negro Education, Vol. 63 n. 6, summer 1994.

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