Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
5-15-2021
Document Type
Article
Citation
Nebraska Law Bulletin (May 15, 2021)
Abstract
The Military Selective Service Act (MSSA) is one of the few remaining laws from an era when unequal rights were granted and unequal obligations were imposed solely on the basis of sex. It assigns exclusively to men the obligations to involuntarily leave one’s home, family, and employment if called up to serve and to place themselves at risk of being required to kill or be killed. It also imposes other significant burdens on men that go far beyond merely providing a name and address to a government agency. Men are under a continuing obligation to update that information until they turn twenty-six. Failure to register or comply with the MSSA carries severe penalties. In addition to a $250,000 fine and five years of imprisonment, men who fail to register face the loss of a wide variety of federal and state rights and benefits. They lose their eligibility for student loans, civil service jobs, and immigration. Many states do not allow men who fail to register for Selective Service to obtain or renew a driver’s license. In some states, men are barred from state financial aid, state employment, or enrollment in public colleges and universities if they do not register.
The male-only Selective Service registration requirement also perpetuates sex-based stereotypes that are harmful to both men and women. It stereotypes men as disposable and nonessential to their children (or at least considerably less important than women). It stereotypes women as physically weaker than men and not as well suited for combat. In short, it reinforces the old saw that a woman’s place is in the home raising children and the tacit corollary that a man’s place is not.
Rostker v. Goldberg is an anachronism. It was wrongly decided at the time and that is even clearer now. Its presence in the universe of outstanding precedents is a continuing affront to both women and men. It is an embarrassment in a country that purports to stand for equality. The Supreme Court should overrule it, Congress should amend the MSSA to make the registration requirement applicable to both men and women, and the Department of Defense should enact implementing regulations with all deliberate speed.
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