Path: bloom-picayune.mit.edu!snorkelwacker.mit.edu!americast.com!americast.com!americast-post Newsgroups: americast.twt.comment From: americast-post@AmeriCast.Com Organization: American Cybercasting Approved: americast-post@AmeriCast.com Subject: Combat roles and the Constitution Date: Wed, 18 Nov 92 16:10:35 EST Message-ID: \SE G;COMMENTARY \HD Combat roles and the Constitution \BY Bruce Fein As Chief Justice of the United States Supreme Court Charles Evans Hughes avowed, we have a "fighting Constitution," and that "The power to wage war is the power to wage war successfully." Those understandings not only authorize but urge the exclusion of women from military combat positions. Nov. 3, a sharply divided 15-member presidential commission largely followed constitutional wisdom in recommending exclusion, but for nonflying jobs on Navy combat ships except submarines and amphibious assault vessels. President Bush must transmit the commission recommendations together with his own by Dec. 15. The U.S. Supreme Court has accorded the political branches enormous deference in the exercise of war powers. In The Prize Cases (1863), for instance, the high court sustained President Abraham Lincoln's decision to blockade Southern ports without congressional approval. During World War II, the court virtually renounced review of President Franklin Roosevelt odious decisions to impose curfews and to relocate citizens of Japanese ancestry, allegedly to forestall espionage and sabotage, in Hirabayski vs. United States (1943), and Korematsu vs. United States (1944). More recently, the court declined to second-guess military policy in upholding the all-male draft registration, Rostker vs. Goldberg (1981), and an Air Force prohibition on wearing of headgear as applied to a Jewish military physician wearing a yarmulke, Goldman vs. Weinberger (1986). As then Associate Justice William Rehnquist emphasized in Rostker: "Judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." In sum, female exclusion from military combat positions would be constitutionally upheld if based on some rational military necessity, and if untainted by bigotry or stereotyping of the kind the military invoked for generations to discriminate against blacks. Under that standard, a female combat exclusion policy would seem constitutionally sustainable and advisable for manifold reasons: * If females became prisoners-of-war, the potential for rape or other mistreatment would virtually compel the United States into imbalanced POW swaps or dangerous rescue missions. * Coeducational combat units would create sexual distractions from the overriding mission to kill the enemy. * The child-bearing capacity and natural nurturing instincts of women would probably cause some flinching at the most brutal and sanguinary aspects of warfare. That intuition is confirmed by FBI statistics showing that women are less than half as likely to be implicated in violent as opposed to nonviolent crime in comparison to their male counterparts. * Females would undermine combat esprit by inhibiting male spontaneity and ribald jokes or bantering that are important components of unit cohesion. It would be devastating to combat effectiveness for fighting men to worry over potential sexual harassment allegations and lawsuits. * A sense of chivalry may prompt male soldiers to act recklessly on behalf of their female counterparts. * If conscription were employed and time was of the essence, too few women would satisfy the requisite physical standards to justify the administrative costs of drafting any females for combat units. As the Goldman decision makes clear, reasons based only on educated guesses or military hunches would sustain a female combat exclusion policy. In that case, an Air Force clinical psychologist insisted that the challenged headgear prohibition could be sustained only if there was proof that a religious apparel exception would create a "clear danger" to discipline and esprit. He assailed the Air Force's failure to prove that his practice of wearing an unobtrusive yarmulke would threaten discipline. He asserted that the contrary assertion of the Air Force was mere ipse dixit, unsubstantiated by actual experience or a scientific study, and was contradicted by expert testimony that religious exceptions to the headgear ban are desirable and would bolster morale by making the Air Force more humane. The high court, however, cold-shouldered such sociological ruminations: "[W]hether or not expert witnesses may feel that religious exceptions to [the headgear ban] are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment." Thus, whatever studies or expert testimony might be proffered to persuade that women in combat positions would leave military effectiveness undisturbed would be of no constitutional moment if military judgment concluded otherwise. On the other hand, the constitutionality of a combat exclusion policy would be imperiled if exceptions were made. They would suggest that combat effectiveness and worries over female POWs were but pretexts for a constitutionally illegitimate desire to keep women in traditional homemaker roles. The reasons for combat exclusion vary but marginally by military unit or task. Thus, the recommendation of the presidential commission to open nonflying jobs to women on Navy combat ships except submarines and amphibious assault vessels constitutionally undermines the general policy of combat exclusion. Equal opportunity irrespective of gender is a cherished ideal of the United States. But when national security is at stake, it should yield to preserve the liberties of everyone in civilian life. To paraphrase President Lincoln's explanation for unilaterally suspending the writ of habeas corpus during the Civil War, equal opportunity for women in combat is no gain for liberty if all the remaining laws become defunct because of defeat. Bruce Fein is a lawyer and free-lance writer specializing in legal issues. This article is copyright 1992 The Washington Times. Redistribution to other sites is not permitted except by arrangement with American Cybercasting Corporation. For more information, send-email to usa@AmeriCast.COM