Fighting women: The military, sex, and extrajudicial constitutional change

Minnesota Law Review

Volumn 93, Issue 1, 2008, Pages 96-164

  Hasday, Jill Elaine ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 58149329118     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (393)

1. See infra Part 1.
2. See infra text accompanying notes 71-104.
3. 453 U.S. 57, 75-77, 83 (1981).
4. See infra notes 155, 157-160 and accompanying text.
5. See OFFICE OF THE ASSISTANT SEC'Y OF DEF. (MANPOWER, RESERVE AFFAIRS, &; LOGISTICS), BACKGROUND REVIEW: WOMEN IN THE MILITARY 13 (1981).
6. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 2008, at 332 tbl.498 (2007).
7. See infra text accompanying note 206.
8. See infra notes 225-230 and accompanying text.
9. See infra text accompanying notes 209-224.
10. See infra text accompanying notes 231-243.
11. See 10 U.S.C. § 983 (2006); see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 70 (2006) (holding that Solomon Amendment does not violate law schools' First Amendment rights).
12. See, e.g., Able v. United States, 155 F.3d 628, 636 (2d Cir. 1998);
13. Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126, 1127-28 (9th Cir. 1997);
14. Ri-chenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996);
15. Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir. 1996).
16. See, e.g., J. Peter Byrne, Constitutional Academic Freedom After Grut-ter: Getting Real About the "Four Freedoms" of a University, 77 U. COLO. L. REV. 929, 947-48 (2006) ("The Solomon Amendment requires universities to allow the military access to campus to recruit students, even though the military violates a school's policy prohibitting employer discrimination on the basis of sexual orientation, or face loss of federal funds.");
17. Clay Calvert & Robert D. Richards, Challenging the Wisdom of Solomon: The First Amendment and Military Recruitment on Campus, 13 WM. & MARY BILL RTS. J. 205, 211 (2004) ("[The Solomon Amendment] quickly became entangled with the burgeoning gay rights movement and non-discrimination policies, as many universities, both public and private, objected to the Pentagon's anti-gay policies . Those universities, in turn, banned military recruiters from campus because the military discriminates based on sexual orientation."). One Solomon Amendment defender notes that military recruitment on campus violates "law schools' policies against discrimination based on age and disability," but fails to mention sex discrimination.
18. Gerald Walpin, The Solomon Amendment Is Constitutional and Does Not Violate Academic Freedom, 2 SETON HALL CIRCUIT REV. 1, 9 (2005).
19. On this assumption in the family law context, See Jill Elaine Hasday, The Canon of Family Law, 57 STAN. L. REV. 825, 833-70 (2004).
20. See infra Part I.A.
21. See infra text accompanying notes 151-154.
22. See infra Part II.
23. See infra Part III.b.
24. Scholars, particularly outside the legal academy, have long observed that politics and popular culture could influence the Supreme Court. See, e.g., ROBERT g. MCCLOSKEY, THE AMERICAN SUPREME COURT 224 (1960) ("[T]he Court has seldom lagged far behind or forged far ahead of America."). For example, extrajudicial forces could influence the Court indirectly through the appointments process, in which Presidents nominate and Senators confirm Justices.
25. See U.S. CONST, art. II, § 2, cl. 2; sources cited infra note 143. Extrajudicial forces could also directly influence Justices, perhaps because the same waves of evolving opinion that affect other Americans also affect the Justices or perhaps because Justices prefer deferring to popular or political sentiment out of respect for democratic processes or fear of retaliation.
26. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 168 (1921) ("The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by."). Some social scientists focus on documenting correlations between the Court's constitutional interpretation and public opinion polls. See sources cited infra note 150. The Court has occasionally acknowledged the influence that changes in legislative and popular opinion exert on its constitutional jurisprudence, whether in adjudicating the Eighth Amendment's prohibition on "cruel and unusual punishments," U.S. CONST, amend. VIII;
27. Roper v. Simmons, 543 U.S. 551, 561 (2005), determining if material is obscene and therefore outside First Amendment protection, Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 574 (2002), or finding that criminalizing consensual sodomy violates the Due Process Clause, Lawrence v. Texas, 539 U.S. 558, 579 (2003).
28. 505 U.S. 833, 865 (1992).
29. Id. at 999-1000 (Scalia, J., concurring in the judgment in part and dissenting in part).
30. See, e.g., Marilyn A. Gordon & Mary Jo Ludvigson, The Combat Exclusion for Women Aviators: A Constitutional Analysis, 39 NAVAL L. REV. 171, 175-85 (1990);
31. Karla R. Kelly, The Exclusion of Women from Combat: With-standing the Challenge, 33 JAG J. 77, 87-108 (1984);
32. Valorie K. Vojdik, Beyond Stereotyping in Equal Protection Doctrine: Reframing the Exclusion of Women from Combat, 57 ALA. L. REV. 303, 332-49 (2005).
33. Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 581 (1991) (emphasis added).
34. See infra note 163 and accompanying text.
35. See infra Part III.A.
36. See infra Part IV.
37. See infra text accompanying notes 254-258.
38. See, e.g., Pers. Adm'r v. Feeney, 442 U.S. 256, 261 (1979) ("The Federal Government and virtually all of the States grant some sort of hiring preference to veterans.").
39. See SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE: THE THEORY AND POLITICS OF CIVIL-MILITARY RELATIONS 157 (1957).
40. See JOSEPH NATHAN KANE ET AL., FACTS ABOUT THE PRESIDENTS: A COMPILATION OF BIOGRAPHICAL AND HISTORICAL INFORMATION 589 (7th ed.2001).
41. Selective Draft Law Cases, 245 U.S. 366, 390 (1918).
42. Id. at 378;
43. See also United States v. Fallon, 407 F.2d 621, 622-23 (7th Cir. 1969) (quoting this passage from Selective Draft Law Cases).
44. 60 U.S. (19 How.) 393, 404-07 (1857).
45. Id. at 415.
46. See Women's Armed Services Integration Act of 1948, Pub. L. No. 80-625, 62 Stat. 356. During World War II, women in the military served on a temporary basis. See Act of May 14, 1942, ch. 312, 56 Stat. 278 (Women's Army Auxiliary Corps); Act of July 30, 1942, ch. 538, 56 Stat. 730 (Navy Women's Reserve). However, the government did seriously consider drafting female nurses. In a January 6, 1945 message to Congress, President Franklin Roosevelt "'urge[d] that the Selective Service Act be amended to provide for the induction of nurses into the armed forces,'" explaining that "'[t]he need is too pressing to await the outcome of further efforts at recruiting.'"
47. H.R. REP. NO. 79-194, at 2 (1945). On February 22, 1945, the House Military Affairs Committee recommended the Nurses Selective Service Act, which would have conscripted female nurses.
48. See id. at 1. The committee explained that there was "a large group of female citizens who [were] registered nurses," and "these nurses [could not] be obtained in sufficient numbers within the time needed except through selective service legislation."
49. Id. at 6. The bill passed the House, and the Senate Military Affairs Committee recommended it on March 28, 1945.
50. See S. RrEP. NO. 79-130, at 1 (1945). But the bill lost momentum after the war in Europe ended in May 1945. It is now little-known, even among historians.
51. See Linda K. Kerber, "A Constitutional Right to be Treated Like .Ladies": Women, Civic Obligation and Military Service, 1993 U. CHI. L. SCH. roundtable 95, 109 ("Although the idea of the citizen-soldier was vigorously deployed in discussions of the World War II draft, no serious efforts were made to draft women, even for non-combatant service in the women's auxiliary forces (e.g. WACS, WAVES), or as nurses.").
52. See Women's Armed Services Integration Act § 102 (Army);
53. id. § 202 (Navy);
54. id. § 213(b) (Marines);
55. id. § 302 (Air Force).
56. Only one Army woman could serve as a colonel, and that was a temporary rank limited to her tenure as director of the Women's Army Corps, see id. § 103(a), the separate corps for Army women,
57. See id. § 101. Only one woman in the Air Force and one female Marine could have the temporary rank of colonel.
58. See id. § 303(g) (Air Force);
59. id. § 213(d) (Marines). Only one Navy woman could have the temporary rank of captain.
60. See id. § 205.
61. Women in the Air Force and the Navy (which includes the Marines) could not be assigned to duty on aircraft engaged in combat missions, see id. § 307(a) (Air Force);
62. id. §§ 210, 212 (Navy), and Navy women could not be assigned to Navy vessels except for hospital ships and naval transports,
63. See id. §§ 210, 212. The Secretaries of the Air Force and Navy could further limit women's assignments.
64. See id. § 307(a) (Air Force);
65. id. §§ 210, 212 (Navy). There were no explicit exemptions for Army women. The Secretary of the Army had complete discretion,
66. see id. § 104(g), on the understanding that defining the scope of the Army combat exclusion was more difficult,
67. see Women's Armed Services Integration Act of 1947: Hearings on S. 1103, S. 1527, and S. 1641 Before the S. Comm. on Armed Services, 80th Cong. 88 (1947) (statement of Colonel Mary Hallaren, Director, Women's Army Corps).
68. The service secretaries had full discretion to discharge women, as long as the secretaries complied with any presidential regulations. See Women's Armed Services Integration Act §§ 104(h), 105(b), 106(b) (Army); § 214 (Navy and Marines); § 307(b) (Air Force). As anticipated, President Harry Truman's 1951 executive order provided that the secretaries could discharge servicewo-men for motherhood or pregnancy. See Exec. Order No. 10,240, 3 C.F.r. 749, 749 (1949-1953).
69. To Establish the Women's Army Corps in the Regular Army, to Authorize the Enlistment and Appointment of Women in the Regular Navy and Marine Corps and the Naval and Marine Corps Reserve, and for Other Purposes: Hearings on S. 1641 Before the Subcomm. on Organization and Mobilization of the H. Comm. on Armed Services, 80th Cong. 5564 (1948) (statement of General Dwight D. Eisenhower).
70. Women's Armed Services Integration Act of 1947: Hearings on S. 1103, S. 1527, and S. 1641 Before the S. Comm. on Armed Services, supra note 38, at 67 (statement of Rear Admiral T.L. Sprague, Chief of Naval Personnel).
71. See On Military Posture and Department of Defense Authorization for Appropriations for Fiscal Year 1979 Also Assignment of Women on Navy Ships: Hearings on H.R. 10,929 and H.R. 7431 Before the H. Comm. on Armed Services, 95th Cong., pt. 5, at 195 (1978) (statement of John P. White, Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); CENT. ALL-VOLUNTEER FORCE TASK FORCE, OFFICE OF THE ASSISTANT SEC'Y OF DEF. (MANPOWER & RESERVE AFFAIRS), UTILIZATION OF MILITARY WOMEN: A REPORT OF INCREASED UTILIZATION OF MILITARY WOMEN FY 1973-1977, at vi (1972); OFFICE OF THE ASSISTANT SEC'Y OF DEF. (MANPOWER, RESERVE AFFAIRS, & LOGISTICS), supra note 5, at 12.
72. See DEP'T OF DEF., CAREERS FOR WOMEN IN THE ARMED FORCES 18 (1957).
73. For the statute ending the draft as of July 1, 1973, See Act of Sept. 28, 1971, Pub. L. No. 92-129, § 101(a)(35), 85 Stat. 348, 353 (codified at 50 U.S.C. app. § 467(c) (2000)).
74. See CENT. ALL-VOLUNTEER FORCE TASK FORCE, supra note 42, at i-ii ("The Central All-Volunteer Force Task Force was asked to study the utilization of military women and prepare contingency plans for increasing the use of women to offset possible shortages of male recruits after the end of the draft. Shortly after this study commenced, the Equal Rights Amendment was passed by Congress on March 22, 1972. This Amendment brought the focus of the nation upon equal rights for women, and the Defense Department intensified its efforts 'to make Military and Civilian service in the Department of Defense a model of equal opportunity 'During the course of the study, Navy and Air Force announced plans to increase significantly the number of military women during FY 1973-1977, and the Marine Corps advised the Task Force that it planned a modest increase." (footnote omitted));
75. COMPTROLLER GEN. OF THE U.S., JOB OPPORTUNITIES FOR WOMEN IN THE MILITARY: PROGRESS AND PROBLEMS, at i (1976) ("The draft was to end. Fewer men were expected to join the services. Equal Rights Amendment requirements were expected. This was the milieu in 1972 when the Department of Defense started recruiting more women and using them in as many jobs as possible within combat limitations, including those previously restricted to men.");
76. OFFICE OF THE ASSISTANT SEC'Y OF DEF. (MANPOWER, RESERVE AFFAIRS, & LOGISTICS), background study: use of women in the military 1 (2d ed. 1978) ("[T]he use of women in the military is a question of increasing importance, for two reasons. First is the movement within the society to provide equal economic opportunity for American women. Second, and more important, use of more women can be a significant factor in making the all-volunteer force continue to work in the face of a declining youth population.").
77. Proposed Amendment to the Constitution of the United States, H.R.J. Res. 208, 92d Cong.,§ 1, 86 Stat. 1523, 1523 (1972).
78. See, e.g., 118 CONG. REC. 9100 (1972) (statement of Senator Samuel Ervin, Jr.) ("Since one of the obligations that our society imposes upon men is to serve in the Armed Forces, even if one is unwilling to volunteer and to serve in combat, this amendment would require that men and women be drafted on exactly the same conditions and serve in combat units and all other units of the Armed Forces under exactly the same conditions.");
79. id. at 9317 (statement of Senator John Stennis) ("Under the resolution as it now stands no man in the United States could be drafted into the Army unless women were equally subject to the draft [I]f we adopt the resolution without amendment, the U.S. Army would not be allowed to exclude women from combat or other hazardous duty on the basis of sex, since that would discriminate against men, and the present resolution requires absolute sameness of treatment regardless of sex.").
80. See, e.g., S. REP. NO. 92-689, at 13 (1972) ("It seems likely as well that the ERA will require Congress to treat men and women equally with respect to the draft."). William Van Alstyne was one of the very few ERA supporters who argued that the Amendment would not necessarily require sex-neutral rules governing registration, conscription, and combat. He considered "the deference the Supreme Court has placed with Congress with regard to matters of national security," and concluded that the Court would uphold women's exclusion from "combatant training and service," even with the ERA in the Constitution.
81. Equal Rights Amendment Extension: Hearings on H.J. Res. 638 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. 150 (1978) (statement of William Van Alstyne, Marshall-Wythe School of Law, College of William and Mary).
82. E.g., 116 CONG. REC. 29,671 (1970) (statement of Senator Samuel Er-vin, Jr.).
83. S. REP. NO. 92-689, at 49 (Minority Views of Mr. Ervin).
84. 118 CONG. REC. 9102 (1972) (statement of Senator Samuel Ervin, Jr.).
85. 117 CONG. REC. 35,785 (1971) (statement of Representative Emanuel Celler).
86. Id. at 35,316 (statement of Representative David Dennis). Opponents of women's equality have long attempted to discredit both feminism and socialism by linking them together as movements meant to undermine women's family roles.
87. See, e.g., B.V. HUBBARD, SOCIALISM, FEMINISM, AND SUFFRAGISM, THE TERRIBLE TRIPLETS: CONNECTED BY THE SAME UMBILICAL CORD, AND FED FROM THE SAME NURSING BOTTLE 286 (1915) ("Socialism, Feminism and Suf-fragism are triplets All three isms are intent on breaking down the Christian family as a unit, and the making of individuals of each member. All disregard the teachings of Scripture in regard to the relative duties of husband and wife.");
88. WOMAN PATRIOT, Apr. 27, 1918, at 1 ("A National Newspaper For Home and National Defense Against Woman Suffrage, Feminism and Socialism").
89. Equal Rights for Men and Women 1971: Hearings on H.J. Res. 35, 208, and Related Bills and H.R. 916 and Related Bills Before Subcomm. No. 4 of the H. Comm. on the Judiciary, 92d Cong. 99 (1971) (statement of Jean Faust, Assistant on Women's Rights for Representative William F. Ryan).
90. See, e.g., id. at 131-32 (statement of Virginia R. Allan, Former Chairman, President's Task Force on Women's Rights and Responsibilities);
91. The "Equal Rights"Amendment: Hearings on S.J. Res. 61 Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 91st Cong. 75 (1970) (statement of Jean Witter, Chairman, Equal Rights Amendment Committee, National Organization for Women);
92. CONG. REC. 35,311 (1971) (statement of Representative Bella Abzug).
93. 117 CONG. REC. 35,311 (1971) (statement of Representative Bella Abzug).
94. Jane Mansbridge, for instance, has emphasized that "[b]ecause ERA activists had little of an immediate, practical nature to lose if the ERA was defeated, they had little reason to describe it in a way that would make it acceptable to middle-of-the-road legislators." JANE J. MANSBRIDGE, WHY WE lOST THE ERA 2 (1986). "Most proponents contended, for example, that the ERA would require the military to send women draftees into combat on the same basis as men."
95. Id. at 3;
96. See also Edith Mayo & Jerry K. Frye, The ERA: Postmortem of a Failure in Political Communication, in RIGHTS OF PASSAGE: THE PAST AND FUTURE OF THE ERA 76, 84 (Joan Hoff-Wilson ed., 1986) ("Such strident feminist rhetoric was typical of the women's movement's failure to construct persuasive answers to the draft for a general, nonfeminist public").
97. S. REP. NO. 92-689, at 13 (1972).
98. 118 CONG. REC. 9336 (1972) (statement of Senator Edward Gurney).
99. 117 CONG. REC. 35,325 (1971) (statement of Representative Michael Harrington).
100. Id. at 35,323 (statement of Representative Martha Griffiths).
101. See id. at 35,815.
102. See 118 CONG. REC. 9598 (1972).
103. An ERA opponent in the Illinois House of Representatives, for instance, contended that the United States House "Judiciary Committee said that this would mean that women and this includes mothers, would be subject to the draft and the military would be compelled to place them in combat units along side of men [T]his is the Judiciary Committee that has drafted many many Constitutional Amendments." House of Representatives, State of Illinois General Assembly 104 (Apr. 4, 1973) (on file with author) (statement of Representative Donald Deuster);
104. See also Connecticut Committee to Rescind ERA, Don't Let the Equal Rights Amendment Stamp Out Womanhood,
105. reprinted in Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. 142, 143 (1979) (statement of Thomas I. Emerson, Lines Professor of Law Emeritus, Yale Law School) ("ERA will make women subject to the draft on an equal basis with men in all our future wars. ERA will make women and mothers subject to military combat and warship duty.").
106. Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia had not ratified the ERA by 1978 and never would. See MANSBRIDGE, supra note 57, at 13-14 ("All were Mormon or southern states, except Illinois, which required a three-fifths majority for ratifying constitutional amendments and which had a strongly southern culture in the third of the state surrounded by Missouri and Kentucky.").
107. See, e.g., Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, supra note 64, at 352, 354 (statement of Senator Orrin Hatch).
108. Equal Rights Amendment Extension: Hearings on H.J. Res. 638 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, supra note 48, at 113 (statement of Erwin N. Griswold, former Solicitor General of the United States).
109. See, e.g., id. at 348-49 (statement of Frankie M. Freeman, Commissioner, U.S. Commission on Civil Rights);
110. Equal Rights Amendment Extension: Hearings on S.J. Res. 134 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, supra note 64, at 281, 345-47 (statement of Senator Birch Bayh).
111. H.R.J. Res. 638, 95th Cong., 92 Stat. 3799 (1978).
112. See Women in the Military: Hearings Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 96th Cong. 34 (1981) (statement of Representative Richard White);
113. id. at 42-43 (statement of Representative Larry McDonald).
114. See, e.g., Jimmy Carter, Equal Rights Amendment: Remarks on Signing H.J. Res. 638, 2 PUB. PAPERS 1800, 1800-01 (Oct. 20, 1978) ("[T]he Constitution does not require that the President sign a resolution concerning an amendment to the Constitution of the United States. But I particularly wanted to add my signature to again demonstrate as strongly as I possibly an my full support for the ratification of the equal rights amendment.").
115. See Jimmy Carter, Selective Service Revitalization: Statement on the Registration of Americans for the Draft, 1 PUB. PAPERS 289, 289 (Feb. 8, 1980) ("I will seek from Congress funds to register American young men under existing law.-I will seek additional authority to register women for noncombat service to our Nation.").
116. See id. at 290 ("[W]omen are not assigned to units where engagement in close combat would be part of their duties, and I have no intention of changing that policy.").
117. Id. at 290-91.
118. See Act of June 27, 1980, Pub. L. No. 96-282, 94 Stat. 552, 552. For Carter's July 2, 1980 proclamation reinstating male-only registration, See Proclamation No. 4771, 3 C.F.R. 82 (1981).
119. Rostker v. Goldberg, 453 U.S. 57, 75 (1981).
120. Id. at 74 (quoting Califano v. Webster, 430 U.S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (Stevens, J., concurring in judgment))).
121. See G. Sidney Buchanan, Women in Combat: An Essay on Ultimate Rights and Responsibilities, 28 HOUS. L. REV. 503, 514 (1991) ("In Rostker, the Court noted that Congress, in deciding to register only males, carefully reviewed and reaffirmed the governmental policy of excluding women from military combat. In light of that careful review and reaffirmation, it would border on the fatuous to hold that Congress does not intend for its exclusion of women from military combat to serve the government's interest in raising and supporting armies." (footnote omitted));
122. Edward L. Froelich, Defending the Equal Protection Jurisprudence in Lamprecht v. FCC: A Matter of Judgment, 10 J.L. & POL. 263, 287-88 (1994) ("[W]here Congress has given due attention to the legislation a court should show deference. However, where Congress has cursorily examined and reflexively approved certain legislation, a court is not bound to defer to Congress Congress roundly and vigorously debated the matter in Rostker-drafting women into the armed forces.");
123. Kelly, supra note 22, at 97 ("The extensive legislative history noted by the Court in Rostker fully supports the fact that Congress carefully considered the issues.");
124. id. at 100 ("Having thoroughly dismantled the notion that Congress has reflexively or thoughtlessly chosen to exclude women from combat, the final inquiry must be made.");
125. Earl F. Martin, Separating United States Service Members from the Bill of Rights, 54 SYRACUSE L. REV. 599, 640 (2004) ("Absent such explicit and thorough consideration of the issue by Congress, a civilian branch of the government specifically tasked to oversee military matters, the Rostker majority might possibly have brought a great deal more skepticism to the case.").
126. Diane H. Mazur, A Blueprint for Law School Engagement with the Military, 1 J. NAT'L SECURITY L. & POL'Y 473, 490 (2005);
127. Vojdik, supra note 22, at 333.
128. Karen Lazarus Kupetz, Note, Equal Benefits, Equal Burdens: "Skeptical Scrutiny" for Gender Classifications After United States v. Virginia, 30 LOY. L.A. L. REV. 1333, 1335 (1997).
129. See 126 CONG. REC. 13,885 (1980) (statement of Senator Carl Levin) ("[The ERA] represents a growing recognition of the role that women have and should be guaranteed. It just does not seem to me to be consistent or proper for us to talk of opportunity on the one hand and deny responsibility on the other.").
130. See id. at 13,877-78 (statement of Senator William Cohen); id. at 13,878-79 (statement of Senator Nancy Kassebaum); id. at 13,882-83 (statement of Senator Jacob Javits).
131. Id. at 13,885 (statement of Senator Carl Levin).
132. Id. (statement of Senator Carl Levin).
133. Id. (statement of Senator John Warner).
134. Military Posture and Department of Defense Authorization for Appropriations for Fiscal Year 1981 and Armed Forces Educational Assistance Act of 1980: Hearings on H.R. 6495 [H.R. 6974] and H.R. 7266 Before the H. Comm. on Armed Services, 96th Cong., pt. 5, at 155 (1980) (statement of Robert B. Pi-rie, Jr., Assistant Secretary for Manpower, Reserve Affairs, and Logistics, Department of Defense);
135. see also id. ("[Representative Richard] white. Do you believe that, Mr. Rostker? Dr. [Bernard D.] rostker[, Director, Selective Service System]. Yes, I do.").
136. Id. at 132 (statement of Robert B. Pirie, Jr., Assistant Secretary for Manpower, Reserve Affairs, and Logistics, Department of Defense).
137. Id. (statement of Robert B. Pirie, Jr., Assistant Secretary for Manpower, Reserve Affairs, and Logistics, Department of Defense);
138. see also Registration of Women: Hearings on H.R. 6569 Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 96th Cong. 21 (1980) ("[Representative Bill] NICHOLS Mr. Secretary, in your personal view do you feel there is a military need to register women? Mr. PIRIE. Yes, sir, we have women serving very effectively in military positions today. It is quite important to have a pool of applicants that is as large as possible for a variety of reasons including military effectiveness.").
139. Registration of Women: Hearings on H.R. 6569 Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, supra note 88, at 6 (statement of Robert B. Pirie, Jr., Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics).
140. See id. at 2-3 (statement of Elaine Eidson);
141. id. at 99-102 (statement of Elaine Donnelly).
142. See infra text accompanying note 153.
143. S. REP. NO. 96-826, at 159 (1980).
144. Id. at 160-61 (capitalization omitted).
145. Id. at 159.
146. 126 CONG. REC. 13,894 (1980) (statement of Senator Sam Nunn).
147. Department of Defense Authorization for Appropriations for Fiscal Year 1981: Hearings on S. 2294 Before the S. Comm. on Armed Services, 96th Cong., pt. 3, at 1691-92 (1980) (statement of Senator Sam Nunn).
148. 126 CONG. REC. 13,885 (1980) (statement of Senator John Warner).
149. Military Posture and Department of Defense Authorization for Appropriations for Fiscal Year 1981 and Armed Forces Educational Assistance Act of 1980: Hearings on H.R. 6495 [H.R. 6974] and H.R. 7266 Before the H. Comm. on Armed Services, supra note 86, at 145 (statement of Representative Marjo-rie Holt).
150. Id. (statement of Representative Marjorie Holt).
151. 126 CONG. REC. 13,888-89 (1980) (statement of Senator Jake Garn).
152. Id. (statement of Senator Jake Garn).
153. Registration of Women: Hearings on H.R. 6569 Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, supra note 88, at 103 (statement of Kathleen Teague, representing Phyllis Schlafly, Coalition Against Drafting Women).
154. Id. at 105 (statement of Kathleen Teague, representing Phyllis Schlafly, Coalition Against Drafting Women).
155. Id. at 77 (statement of Rabbi Herman N. Neuberger, Chairman, Orthodox Jewish Coalition on Registration of Women for the Selective Service System).
156. Goesaert v. Cleary, 335 U.S. 464, 467 (1948).
157. See Reed v. Reed, 404 U.S. 71, 74-77 (1971).
158. See, e.g., United States v. Reiser, 532 F.2d 673, 673 (9th Cir. 1976) ("There is, however, a clear rational relationship between the government's legitimate interests, as expressed in the [Selective Service] Act, and the classification by sex, and thus no violation of appellee's constitutional rights.");
159. United States v. Baechler, 509 F.2d 13, 14-15 (4th Cir. 1974) (per curiam) ("Considering the nature of the demands of military service, we cannot say that Congress had no rational basis for the distinction based on sex. While it is true that women may and do perform vital services in the armed forces of the United States, and their physical and mental capabilities are valued contributions to the nation in both peace and war, these characteristics and accomplishments do not create a constitutional obligation upon the Government to subject them to call equally with men.");
160. United States v. Camara, 451 F.2d 1122, 1126 (1st Cir. 1971) ("[W]e are not yet prepared to say that the Congress lacked a sufficiently rational basis in confining the draft to males.");
161. United States v. Fallon, 407 F.2d 621, 623 (7th Cir. 1969) ("We hold such classifications and deferments are reasonably related to the purposes of the Selective Service Act. Congress was entitled to consider factors which would both maximize the efficiency and minimize the expense of raising an army and minimize the disruption of what were considered important civilian functions.");
162. United States v. Clinton, 310 F. Supp. 333, 336 (E.D. La. 1970) ("Congressional chivalry in drafting men only to comprise an army has a sufficiently rational basis to avoid constitutional condemnation as mere male chauvinism.");
163. Suskin v. Nixon, 304 F. Supp. 71, 72 (N.D. 111. 1969) ("[T]he legislative policy to exclude women from compulsory military service has a rational basis which is reasonably related to the congressional power to raise and support an army.").
164. 291 F. Supp. 122 (S.D.N.Y. 1968).
165. See United States v. Yingling, 368 F. Supp. 379, 386 (W.D. Pa. 1973) (quoting St. Clair);
166. United States v. Cook, 311 F. Supp. 618, 621-22 (W.D. Pa. 1970) (same).
167. St Clair, 291 F. Supp. at 124-25.
168. 411 U.S. 677 (1973).
169. Id. at 687-88 (plurality opinion).
170. See id. at 682, 688 (plurality opinion).
171. See id. at 678-79 (plurality opinion).
172. 429 U.S. 190, 197 (1976).
173. Orr v. Orr, 440 U.S. 268, 279-80 (1979) (alteration in original) (quoting Stanton v. Stanton, 421 U.S. 7, 14-15 (1975));
174. See also Trammel v. United States, 445 U.S. 40, 52 (1980) ("Nowhere in the common-law world-indeed in any modern society-is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that '[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas."' (alteration in original) (quoting Stanton, 421 U.S. at 14-15));
175. Califano v. Westcott, 443 U.S. 76, 89 (1979) ("[T]he gender classification is part of the 'baggage of sexual stereotypes' that presumes the father has the 'primary responsibility to provide a home and its essentials,' while the mother is the "center of home and family life." Legislation that rests on such presumptions, without more, cannot survive scrutiny." (quoting Orr, 440 U.S. at 283; Stanton, 421 U.S. at 10; Taylor v. Louisiana, 419 U.S. 522, 534 n.15 (1975))).
176. See Registration of Women: Hearings on H.R. 6569 Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, supra note 88, at 14 (statement of Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel).
177. Id. at 14-15 (statement of Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel).
178. Id. at 15 (statement of Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel).
179. Id. at 25 (statement of Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel).
180. 453 U.S. 57, 83 (1981).
181. See supra text accompanying notes 76-77.
182. See Goldberg v. Tarr, 510 F. Supp. 292, 292-93 (E.D. Pa. 1980); Rowland v. Tarr, 341 F. Supp. 339, 340 (E.D. Pa. 1972), aff'd in part, vacated in part per curiam, 480 F.2d 545 (3d Cir. 1973).
183. See Rowland, 480 F.2d at 546-47.
184. See Goldberg, 510 F. Supp. at 292-94 (recounting suit's procedural history from 1971 to 1980).
185. See ldberg v. Rostker, 509 F. Supp. 586, 605 (E.D. Pa. 1980), rev'd, 453 U.S. 57 (1981).
186. See Rostker v. Goldberg, 448 U.S. 1306, 1311 (1980) (Brennan, Circuit Justice).
187. See Rostker v. Goldberg, 449 U.S. 1009, 1009 (1980).
188. See 453 U.S. at 59.
189. See id. at 64-67.
190. See U.S. CONST, art. II, § 2, cl. 1.
191. See PETER G. BOURNE, JIMMY CARTER: A COMPREHENSIVE BIOGRAPHY FROM PLAINS TO POSTPRESIDENCY 54, 64-66 (1997).
192. See supra text accompanying notes 72, 74.
193. See supra text accompanying notes 86-88.
194. See 453 U.S. at 69-70.
195. See id. at 75-77.
196. See id. at 76-77.
197. See, e.g., MICHEAL CLODFELTER, VIETNAM IN MILITARY STATISTICS: A HISTORY OF THE INDOCHINA WARS, 1772-1991, at 238 (1995) (noting that eighty-eight percent of the American troops in Indochina in 1968 "were support or administrative personnel" and sixty-one percent of the Americans in World War II were "noncombat troops").
198. See, e.g., Be a Marine⋯ Free a Marine to Fight (1943) (U.S. Marine Corps Women's Reserve recruiting poster, on file with author); Enlist in the WAVES Release a Man to Fight at Sea (1943) (Navy recruiting poster, on file with author).
199. See supra text accompanying notes 58-61, 68.
200. See supra text accompanying notes 72-73, 82-89.
201. See 453 U.S. at 83-86 (White, J., dissenting); id. at 92-113 (Marshall, J., dissenting).
202. For some of the literature examining how the appointments process can influence the Court's constitutional jurisprudence, see ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 190 (1989) ("Jurists known to be sharply at odds with the basic outlook of the president or a majority of senators are not nominated by the president and confirmed by the Senate. Thus the views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country.");
203. MARTIN SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 27 (1966) ("Since over the whole history of the Court the President has had the opportunity of appointing a new Justice on the average of once every twenty-two months, it seems unlikely that the Court could long hold out against entrenched majority sentiment."). Richard Funston found that "the Court has been more than three times as likely to declare recently enacted federal legislation unconstitutional" "during periods of electoral and partisan realignment" when "the Court, as a result of its life tenure, is most likely to be out of line with the new, dominant law-making majority." "As time passes," however, "the new majority is enabled to appoint its own adherents to the Supreme bench, and the Court increasingly returns to harmony with the new lawmaking majority." Richard Funston, The Supreme Court and Critical Elections, 69 AM. pol. sci. rev. 795, 805, 807 (1975).
204. Memorandum from William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, to Leonard Garment, Special Consultant to the President 6 (May 4, 1970) (on file with author).
205. Id. at 9.
206. See Frontiero v. Richardson, 411 U.S. 677, 691 (1973) (Rehnquist, J., dissenting).
207. See Craig v. Boren, 429 U.S. 190, 217 (1976) (Rehnquist, J., dissenting).
208. See id. at 191; Frontiero, 411 U.S. at 678.
209. See supra text accompanying note 49.
210. Social scientists have examined correlations between extrajudicial forces and the Court's constitutional jurisprudence. Thomas Marshall found that since the mid-1930s "[m]ost modern Supreme Court rulings reflect public opinion, and overall, the modern Court has been roughly as majoritarian as other American policy makers." THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT, at ix (1989). David Barnum's examination of "data on public opinion and Supreme Court decision making" concluded that "the post-New Deal Supreme Court" has been "surprisingly consistent with majoritarian principles."
211. David G. Barnum, The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New Deal Period, 47 J. POL, 652, 662 (1985). William Mishler and Reginald Sheehan found "that for most of the period since 1956, the Court has been highly responsive to majority opinion," with decisions that "have conformed closely to the aggregate policy opinions of the American public." William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution?: The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SCI. REV. 87, 97 (1993).
212. See 453 U.S. 57, 83 (1981) (White, J., dissenting); id. at 93 (Marshall, J., dissenting).
213. Id. at 77 (majority opinion).
214. Id. (quoting S. REP. No. 96-826, at 157 (1980)).
215. Id. at 79.
216. For three rare examples, see United States v. Schmucker, 815 F.2d 413, 419-20 (6th Cir. 1987) (relying on Rostker to uphold constitutionality of requiring male conscientious objectors to register while exempting "women and males with severe mental deficiencies");
217. Schwartz v. Brodsky, 265 F. Supp. 2d 130, 131-35 (D. Mass. 2003) (relying on Rostker to uphold male-only registration);
218. Lewis v. U.S. Army, 697 F. Supp. 1385, 1386, 1392-93 (E.D. Pa. 1988) (relying on Rostker to uphold Army policy permitting men with General Educational Development (GED) certificates to enlist but requiring women to have high school diplomas).
219. See Stephanie A. Levin, Women and Violence: Reflections on Ending the Combat Exclusion, 26 NEW ENG. L. rev. 805, 821 (1992) ("[W]e must go beyond notions of equality which end in the equal right to inflict violence, and search for alternative conceptions of citizenship which do not have violence at their core.");
220. Sara Ruddick, Pacifying the Forces: Drafting Women in the Interests of Peace, 8 SIGNS 471, 473 (1983) ("[Conscripting women would further the feminist effort to eliminate the restrictions on power and mastery that now afflict us. But such a solution, adding as it does the wrong of conscription to the evils of militarism, only compounds the difficulties of reconciling feminist with antimilitarist aims.");
221. Ann Scales, Militarism, Male Dominance and Law: Feminist Jurisprudence as Oxymoron?, 12 HARV. WOMEN'S L.J. 25, 26 (1989) ("We can't overcome gender oppression without demilitarizing ourselves and our world.");
222. Jennifer Tiffany, The Equal Opportunity Trap, in LOADED QUESTIONS: WOMEN IN THE MILITARY 36, 36 (W. Chapkis ed., 1981) ("Seeking the right and opportunity to participate on equal terms in structures that so undermine the welfare of women as the military, and so bolster the exploitation of women, simply won't pass as a feminist priority.").
223. See supra note 155.
224. See Schwartz, 265 F. Supp. 2d at 133-34.
225. See id. at 131, 132 & n.4.
226. See Telephone Interview with Harvey A. Schwartz, Rodgers, Powers & Schwartz PC (Dec. 11, 2006) (on file with author). Harvey Schwartz, an employment and civil rights lawyer, represented the Schwartz plaintiffs. He is the father of one plaintiff, Samuel Schwartz, and the stepfather of another, Nicole Foley. The family began to think about suing after a dinnertime conversation about why Samuel had to register but not Nicole. See id. Harvey Schwartz reports that "[dismissing this case continues to be a major disappointment for me. If I had it to do over again, I would have gone forward with the appeal." E-mail from Harvey A. Schwartz, Rodgers, Powers & Schwartz PC, to Jill Hasday, Professor, University of Minnesota Law School (Dec. 11, 2006) (on file with author).
227. See supra text accompanying notes 11-13.
228. See supra Part I.A.
229. See Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 CONST. COMMENT. 455, 457, 471-72, 482 (2000);
230. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1377, 1380 (1997);
231. Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV. L. REV. 1594, 1634 (2005) (book review).
232. For an exception describing some DACOWITS work through the 1980s, see Mary Fainsod Katzenstein, Feminism Within American Institutions: Unobtrusive Mobilization in the 1980s, 16 SIGNS 27, 47-53 (1990).
233. DACOWITS DEFENSE ADVISORY COMMITTEE ON WOMEN IN THE SERVICES, HISTORY AND ACCOMPLISHMENTS 21 (1997).
234. Phyllis Schlafly, Feminist Lobbyists Get Free Pass, CHATTANOOGA TIMES FREE PRESS, Mar. 8, 2002, at B9.
235. See Recommendations Requests for Information Commendations: DACOWITS Fall Meeting 1, 3 (Nov. 14-18, 1976) (on file with author);
236. Women in the Military: Hearings Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, supra note 70, at 192-93 (statement of Sally K. Richardson, Chairperson, Defense Advisory Committee on Women in the Services).
237. Women in the Military: Hearings Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, supra note 70, at 180 (Recommendation #1, Fall Meeting 1979, attachment to the statement of Ms. Sally K. Richardson, Chairperson, DACOWITS).
238. Id. at 192-93 (statement of Sally K. Richardson, Chairperson, Defense Advisory Committee on Women in the Services).
239. See, e.g., Defense Advisory Committee on Women in the Services (DACOWITS), Recommendations, Requests for Information, and Continuing Concerns Made at the 1989 Fall Conference 58 (1989) (on file with author) [hereinafter DACOWITS 1989 Fall Conference];
240. Defense Advisory Committee on Women in the Services (DACOWITS), Recommendations, Requests for Information, Continuing Concerns, and a Statement of Appreciation Made at the 1990 Spring Conference 435 (1990) (on file with author) [hereinafter DACOWITS 1990 Spring Conference];
241. Defense Advisory Committee on Women in the Services (DACOWITS), Recommendations, Requests for Information, Continuing Concerns, and a Statement of Appreciation Made at the 1990 Fall Conference 303 (1990) (on file with author) [hereinafter DACOWITS 1990 Fall Conference].
242. See supra note 38.
243. DACOWITS 1989 Fall Conference, supra note 170, at 3;
244. see also DACOWITS 1990 Spring Conference, supra note 170, at 434 (repeating recommendation); DACOWITS 1990 Fall Conference, supra note 170, at 306 (same);
245. Defense Advisory Committee on Women in the Services (DACOWITS), Recommendations, Requests for Information, Continuing Concerns, and a Statement of Appreciation 187 (1991) (on file with author) [hereinafter DACOWITS 1991 Spring Conference] (same). On January 23, 1990, Representative Patricia Schroeder introduced legislation that would have required the Army to conduct the test DACOWITS recommended.
246. See 136 CONG. REC. 6 (1990) (statement of Representative Patricia Schroeder).
247. DACOWITS 1991 Spring Conference, supra note 172, at 167;
248. see also Final Draft DACOWITS 1991 Fall Conference Miami Beach, Florida 140 (1991) (on file with author) (repeating recommendation).
249. For example, one DACOWITS member advocated repeal of the statutory combat exclusions in a university alumni magazine. See Thomas H. Stafford Jr., Women in Combat?, NCSU, Nov. 1991, at 44, 44 ("Consideration for combat should be based on individual ability. Women who have the physical, mental and emotional attributes for combat should not be excluded on gender alone.").
250. Department of Defense Authorization for Appropriations for Fiscal Years 1992 and 1993: Hearings on S. 1507 Before the S. Comm. on Armed Services, 102d Cong., pt. 6, at 861 (1991) (statement of Becky Costantino, Chair, Defense Advisory Committee on Women in the Services).
251. See National Defense Authorization Act for Fiscal Years 1992 and 1993, Pub. L. No. 102-190, § 531(a)(1), (b)(1), 105 Stat. 1290, 1365 (1991).
252. After the 1991 statute, the governing provision prohibited the Navy from assigning women to duty on vessels engaged in combat missions, but made an exception for women serving '"as aviation officers as part of an air wing or other air element assigned to such a vessel.'" Id. § 531(b)(2). The Navy could permanently assign any Navy woman to '"hospital ships, transports, and vessels of a similar classification not expected to be assigned combat missions'" and could temporarily assign any Navy woman to other Navy vessels not '"engaged in combat missions.'" Department of Defense Appropriation Authorization Act, 1979, Pub. L. No. 95-485, § 808, 92 Stat. 1611, 1623 (1978).
253. National Defense Authorization Act for Fiscal Years 1992 and 1993 §§ 541(a), 542(a).
254. 137 CONG. REC. 20,729 (1991) (statement of Senator Edward Kennedy).
255. Id. at 20,713 (statement of Senator Edward Kennedy).
256. Id. at 20,733 (statement of Senator Brockman Adams).
257. Id. at 20,732 (statement of Senator Brockman Adams).
258. Id. at 20,729 (statement of Senator Patrick Leahy).
259. S. REP. NO. 102-113, at 216-17 (1991).
260. Department of Defense Authorization for Appropriations for Fiscal Years 1992 and 1993: Hearings on S. 1507 Before the S. Comm. on Armed Services, supra note 175, at 797 (statement of Senator John Glenn).
261. 137 CONG. REC. 20,717 (1991) (statement of Senator John Glenn).
262. Eric Schmitt, Head of Army Sees Chance of Female Fliers in Combat, N.Y. times, June 2, 1991, § 1, at 32 (quoting Pentagon spokesman Pete Williams);
263. see also George Bush, The President's News Conference, 2 PUB. papers 1013, 1016 (Aug. 2, 1991) ("I think there are some darn good women pilots out there ⋯But I want to see-I want to hear from the Secretary of Defense, the members of the Joint Chiefs on all of these things.").
264. See THE PRESIDENTIAL COMM'N ON THE ASSIGNMENT OF WOMEN IN THE ARMED FORCES, REPORT TO THE PRESIDENT, at iii (1992).
265. Id. at 60 (alternative views of Samuel G. Cockerham, Elaine Donnelly, Sarah F. White, Kate Walsh O'Beirne, Ronald D. Ray).
266. Id. at 22.
267. Id. at 23.
268. See 117 CONG. REC. 35,815 (1971).
269. See 124 CONG. REC. 26,264 (1978).
270. Gender Discrimination in the Military: Hearings Before the Subcomm. on Military Personnel and Compensation and the Defense Policy Panel of the H. Comm. on Armed Services, 102d Cong. 31 (1992) (statement of Representative Les Aspin).
271. Id. (statement of Representative Les Aspin).
272. Id. at 77 (statement of Representative Les Aspin).
273. Id. (statement of Representative Les Aspin).
274. See DACOWITS Fall Conference October 18-21, 1992 Hosted by U.S. Army 44-45 (1992) (on file with author).
275. Memorandum from Les Aspin, Sec'y of Def., to the Sec'y of the Army; Sec'y of the Navy; Sec'y of the Air Force; Chairman, Joint Chiefs of Staff; Assistant Sec'y of Def. (Force Mgmt. & Pers.); Assistant Sec'y of Def. (Reserve Affairs) 1 (Apr. 28, 1993) (on file with author).
276. Id. at 2.
277. Memorandum from Frank Carlucci, Sec'y of Def., to Sec'ys of the Military Dep'ts 1 (Feb. 2, 1988) (on file with author).
278. Aspin, supra note 199, at 2.
279. Id.
280. For an article by DACOWITS' chair in 1993, see Ellen Press Murdoch, Equal Combat Roles Put Muscle in Defense, chi. Trib., May 30, 1993, § 6, at 11 ("Military women want to be accepted as full participants in our country's defense.").
281. Women in Combat: Hearing Before the Subcomm. on Military Forces and Personnel of the H. Comm. on Armed Services, 103d Cong. 50 (1994) (statement of Vice Admiral Ronald J. Zlatoper, Deputy Chief of Naval Operations, Manpower, Personnel and Training, Chief of Naval Personnel, Department of the Navy).
282. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 541, 107 Stat. 1547, 1659 (1993).
283. See id. § 542(a).
284. Id. § 542(b). The 1993 statute also instructed the Defense Secretary to apply the same occupational performance standards to men and women, see id. § 543(a)-(b), and provide Congress with sixty days of notice before changing the occupational performance standards for a military field in a way expected to increase or decrease by at least ten percent the number of women entering or being assigned to the field, see id. § 543(c).
285. Memorandum from Les Aspin, Sec'y of Def., to the Sec'y of the Army; Sec'y of the Navy; Sec'y of the Air Force; Chairman, Joint Chiefs of Staff; Assistant Sec'y of Def. (Pers. & Readiness); Assistant Sec'y of Def. (Reserve Affairs) 1 (Jan. 13, 1994) (on file with author).
286. Id.
287. Id.
288. Id. at 1-2.
289. Id. at 2.
290. Id.
291. Letter from Les Aspin, Sec'y of Def., to Ronald V. Dellums, Chairman, House Comm. on Armed Servs. 1-2 (Jan. 21, 1994) (on file with author);
292. Letter from Les Aspin, Sec'y of Def., to Sam Nunn, Chairman, Senate Comm. on Armed Servs. 1-2 (Jan. 21, 1994) (on file with author) (same).
293. Letter from William J. Perry, Sec'y of Def., to Ronald V. Dellums, Chairman, House Comm. on Armed Servs. 1 (Feb. 4, 1994) (on file with author);
294. Letter from William J. Perry, Sec'y of Def., to Sam Nunn, Chairman, Senate Comm. on Armed Servs. 1 (Feb. 4, 1994) (on file with author) (same). In May 1999, Under Secretary of Defense for Personnel and Readiness Rudy deLeon reported that the Navy would open Mine Countermeasure and Mine Coastal Hunter ships to female officers, although such ships would remain closed to enlisted women because of "prohibitive modification cost."
295. Letter from Rudy deLeon, Under Sec'y of Def. for Pers. & Readiness, to Floyd Spence, Chairman, House Comm. on Armed Servs. 1 (May 6, 1999) (on file with author);
296. Letter from Rudy deLeon, Under Sec'y of Def. for Pers. & Readiness, to John Warner, Chairman, Senate Comm. on Armed Servs. 1 (May 6, 1999) (on file with author) (same). In July 1999, Acting Assistant Secretary of Defense for Force Management Policy Francis Rush, Jr. reported that the Navy would also open Mine Countermeasure and Mine Coastal Hunter ships to enlisted women because "[t]he Navy recently reevaluated the cost based on experiences gained from embarking women in combatant ships" and "[i]t has now been determined that the initial modifications needed to reconfigure female enlisted berthing would be negligible."
297. Letter from Francis M. Rush, Jr., Acting Assistant Sec'y of Def. for Force Mgmt. Policy, to Floyd Spence, Chairman, House Comm. on Armed Servs. 1 (July 22, 1999) (on file with author);
298. Letter from Francis M. Rush, Jr., Acting Assistant Sec'y of Def. for Force Mgmt. Policy, to John Warner, Chairman, Senate Comm. on Armed Servs. 1 (July 22, 1999) (on file with author) (same). In May 2005, Defense Secretary Donald Rumsfeld reported that the Navy would open Patrol Coastal ships to female officers.
299. See Letter from Donald Rumsfeld, Sec'y of Def., to Duncan Hunter, Chairman, House Comm. on Armed Servs. 1 (May 2, 2005) (on file with author); Letter from Donald Rumsfeld, Sec'y of Def., to John Warner, Chairman, Senate Comm. on Armed Servs. 1 (May 2, 2005) (on file with author) (same).
300. See Letter from William J. Perry, Sec'y of Def., to Ronald V. Dellums, Chairman, House Comm. on Armed Servs. 1 (July 28, 1994) (on file with author). The Army would "open all units and positions except Armor, Infantry, and ground Special Operations Forces units below the brigade level and any closely associated support units such as Combat Engineer Companies and Air Defense Artillery batteries."
301. Id. The Marines would "open 33 additional Military Occupational Specialties and nine types of units previously closed to women," so that "[o]nly the Marine Corps Infantry Regiment and those closely associated support units and positions remain closed."
302. Id. at 1-2. In the Air Force, "[o]nly Air Force Pararescue, Combat Controllers and those units and positions routinely associated with direct ground combat" would remain closed to women. Id. at 2.
303. Id. at 1.
304. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, § 562(a), (b)(1), 116 Stat. 2458, 2554-55 (2002).
305. see OFFICE OF PERS. & READINESS, MILITARY PERS. POLICY, DEP'T OF DEF., ANNUAL REPORT ON STATUS OF FEMALE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES fy 2002-06, at 2.
306. See id. at 3.
307. See id. at 4-5.
308. See id. at 6.
309. U.S. GOV'T ACCOUNTABILITY OFFICE, MILITARY PERSONNEL: REPORTING ADDITIONAL SERVICEMEMBER DEMOGRAPHICS COULD ENHANCE CONGRESSIONAL OVERSIGHT 45 (2005).
310. See 152 CONG. REC S8542 (daily ed. Aug. 1, 2006) (statement of Senator Robert Menendez) ("The Navy and the Air Force have begun to allow female soldiers to fly fighters and bombers. The Army has expanded the role of women in ground-combat operations ⋯This would have been unheard of a decade ago, but it is happening right now.");
311. CONG. REC E1492 (daily ed. July 14, 2005) (statement of Representative Jim Cooper) ("I rise today to recognize and congratulate U.S. Army Sgt. Leigh Ann Hester, a recent recipient of the Silver Star Medal-the Army's third highest award for valor in combat⋯According to an Army account, '[Sgt.] Hester led her team through the 'kill zone' and into a flanking position, where she assaulted a trench line with grenades and M203 grenade-launcher rounds.' Sgt. Hester killed at least three insurgents ⋯");
312. MARGARET C. HARRELL ET AL., RAND NAT'L DEF. RESEARCH INST., ASSESSING THE ASSIGNMENT POLICY FOR ARMY WOMEN 32 (2007) ("[T]here are circumstances in which support units with women are in a relationship with maneuver units that is only very slightly different from being assigned, and ⋯in some circumstances, they have a closer relationship with the maneuver unit than with the unit in their assigned chain of command.");
313. JAMES E. WISE JR. & SCOTT BARON, WOMEN AT WAR: IRAQ, AFGHANISTAN, AND THER CONFLICTS, at ix (2006) ("Servicewomen are frequently engaged in fire-fights with enemy insurgents while guarding convoys, traveling in hostile territory, or performing military police duties and other vital support functions.").
314. See Statistical Info. Analysis Div., Dep't of Def., Operation Iraqi Freedom Military Deaths March 19, 2003 Through October 4, 2008, at 1 (on file with author).
315. Progress of the Iraqi Security Forces: Hearing Before the H. Comm. on Armed Services, 109th Cong. 53 (2007) (statement of General George W. Casey, Jr., Commander, Multi-National Forces-Iraq, U.S. Army).
316. Nominations Before the Senate Armed Services Committee, Second Session, 109th Congress: Hearings Before the S. Comm. on Armed Services, 109th Cong. 487 (2007) (statement of Ronald J. James, to be Assistant Secretary of the Army for Manpower and Reserve Affairs).
317. Progress of the Iraqi Security Forces: Hearing Before the H. Comm. on Armed Services, supra note 227, at 54 (statement of Representative Susan Davis).
318. 151 CONG. REC. H4015 (daily ed. May 25, 2005) (statement of Representative Susan Davis) (quoting Sergeant Cynthia Hanna, Marine veteran).
319. In a Gallup survey conducted between March 2 and 5, 1979, fifty percent favored registering women and forty-three percent stated that women should be conscripted if a draft became necessary. Of the forty-three percent who favored drafting women, nineteen percent stated that women should be eligible for combat roles and twenty-two percent stated that women should be ineligible.
320. See george H. GALLUP, THE GALLUP POLL: PUBLIC OPINION 1979, at 150-53 (1980). On February 1 to 4, 1980, fifty-six percent favored registering women and fifty-one percent stated that women should be conscripted if a draft became necessary. Of the fifty-one percent who favored drafting women, twenty-one percent stated that women should be eligible for combat roles and twenty-eight percent stated that women should be ineligible.
321. See GEORGE H. GALLUP, THE GALLUP POLL: PUBLIC OPINION 1980, at 54-56, 58 (1981). On July 11 to 14, 1980, forty-nine percent favored registering women and forty-nine percent stated that women should be conscripted if a draft became necessary. Of the forty-nine percent who favored drafting women, twenty-two percent stated that women should be eligible for combat roles and twenty-five percent stated that women should be ineligible.
322. See id. at 146-49. Between January 31 and February 4, 1980, the ABC News-Harris Survey polled a nationwide cross section of 1198 likely voters. Fifty-five percent favored registering women and making them eligible for conscription. Twenty-nine percent favored assigning servicewomen to combat units.
323. See Louis Harris, Americans Favor Military Registration of Young People, ABC NEWS-HARRIS SURV., Mar. 7, 1980, at 1, 2-3.
324. A Gallup survey conducted between July 31 and August 3, 1981 asked respondents whether they "approve[d] or disapprove[d] of the Supreme Court ruling that women cannot be drafted." Of course, this question did not accurately describe the Rostker holding. Rostker did not prevent Congress from drafting women; it held that Congress was constitutionally free to choose male-only registration and conscription instead. Nonetheless, fifty-nine percent of respondents reported that they approved of the "ruling that women cannot be drafted."
325. GEORGE H. GALLUP, THE GALLUP POLL: PUBLIC OPINION 1981, at 181-82 (1982) (emphasis omitted).
326. Elaine Sciolino, Battle Lines Are Shifting on Women in War, N.Y. TIMES, Jan. 25, 1990, at Al, D23.
327. GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 1990, at 114, 117 (1991) (emphasis omitted).
328. GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 1991, at 59-60 (1992) (emphasis omitted).
329. See Opinion Watch: On the Front Lines?, NEWSWEEK, Aug. 5, 1991, at 27, 27.
330. Id.
331. Id.
332. GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 1992, at 198 (1993) (emphasis omitted).
333. See THE PRESIDENTIAL COMM'N ON THE ASSIGNMENT OF WOMEN IN THE ARMED FORCES, supra note 188, at D-l.
334. See GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 1998, at 179, 183 (1999).
335. GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 2002, at 3 (2003).
336. Darren K. Carlson, Do Americans Give Women a Fighting Chance?: Service Other than Active Combat OK with Americans, in THE GALLUP POLL: PUBLIC OPINION 2005, at 217, 217-18 (Alec M. Gallup & Frank Newport eds., 2007).
337. James Webb's career also suggests the popular opinion shift since Rostker. In 1979, Webb felt comfortable publishing an article opposing women's participation in combat and criticizing Congress's decision to admit women to the military academies.
338. See James Webb, Women Can't Fight, WASHINGTONIAN, NOV. 1979, at 144, 146 ("There is a place for women in our military, but not in combat. And their presence at institutions dedicated to the preparation of men for combat command is poisoning that preparation."). Webb's article was not universally popular, but did not prevent Webb from becoming Secretary of the Navy from 1987 to 1988.
339. See Nominations Before the Senate Armed Services Committee, First Session, 100th Congress: Hearings Before the S. Comm. on Armed Services, 100th Cong. 49-93 (1988);
340. John H. Cushman Jr., Navy Chief Quits, Assailing Carlucci over Budget Cuts, N.Y. TIMES, Feb. 23, 1988, at A1. When Webb campaigned in 2006 to become a United States Senator from Virginia, however, his 1979 article became a significant campaign issue, with Webb's opponent, George Allen, mailing fliers to voters warning that: '"If James Webb had his way, ⋯we'd send women back to a time when they weren't respected, and weren't treated fairly - and we certainly wouldn't have women studying at the military academies.'" Michael D. Shear, Hip-High in Mud, Allen, Webb Show No Signs of Letting up, WASH. POST, Sept. 27, 2006, at B6.
341. In response, Webb distanced himself from his own publication, either because he no longer believed what he had written, or because he realized that opposing the expansion of women's military role was now outside the main-stream of popular opinion and hence a political liability, or both. In September 2006, Webb declared he was "fully comfortable with the roles of women in the military today." Meet the Press (NBC television broadcast Sept. 17, 2006) (transcript at 12, on file with author) (statement of James Webb).
342. Interestingly, Allen had fought the admission of women to the Virginia Military Institute (VMI), a state military college. While Governor of Virginia in 1995, he criticized "the federal government," which was litigating to win women's admission to VMI, for "its efforts to ruin VMI for whatever social cause." Allen explained that "if VMI admitted women, it wouldn't be the VMI that we've known for 154 years. You just don't treat women the way you treat fellow cadets. If you did, it would be ungentlemanly, it'd be improper." "Live" with TAE: George Allen, AM. ENTERPRISE, Mar./Apr. 1995, at 23, 24.
343. During the 2006 Senate campaign, Allen also distanced himself from his earlier position, stating that he had been "wrong" to think women's admission would ruin VMI. Meet the Press, supra, at 14 (statement of Senator George Allen). Webb won the election.
344. Rostker is not unique in grounding its constitutional interpretation on factual and cultural premises that can become less plausible over time. To some degree, the Court may inevitably base its interpretation of constitutional equal protection on its understanding of "the facts of life."
345. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 427 (1960). Sometimes the Court's understanding of the world stands the test of time, and sometimes it does not. For a notorious example, compare Brown v. Bd. of Educ, 347 U.S. 483, 494 (1954), with Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
346. See supra note 225.
347. See supra Part III.A.
348. 518 U.S. 515 (1996).
349. Id. at 541 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)).
350. Id. at 550.
351. Id. at 534, 532. For more discussion of this aspect of the Court's sex discrimination jurisprudence, see Jill Elaine Hasday, The Principle and Practice of Women's "Full Citizenship": A Case Study of Sex-Segregated Public Education, 101 MICH. L. REV. 755, 771-73 (2002).
352. Senators John Glenn and Sam Nunn opposed narrowing the statutory combat exclusions in 1991 on the ground that repealing "current combat exclusion laws" might negatively impact "the constitutionality of the male only registration and service requirements of the Military Selective Service Act." 137 CONG. REC. 20,715 (1991) (statement of Senator John Glenn);
353. see also id. at 20,728 (statement of Senator Sam Nunn) (similar). Senator John McCain explained that Rostker "clearly stated that the reason the Supreme Court of the United States upheld the law that required males to register at age 18, and did not require females, was because of the combat exclusionary laws that had already been put on the books." He warned that narrowing the statutory combat exclusions would mean that "we may well have to register women for the draft when they turn age 18."
354. Id. at 20,718 (statement of Senator John McCain). After Congress enacted the 1991 statute, Representative Robert Dornan stressed that "there is no way the Supreme Court or any court in the land is going to say once women are in combat, they are going to be exempt from the draft." Gender Discrimination in the Military: Hearings Before the Subcomm. on Military Personnel and Compensation and the Defense Policy Panel of the H. Comm. on Armed Services, supra note 194, at 110 (statement of Representative Robert Dornan). Representative Jon Kyi advocated the 1992 recommendation of the Commission on the Assignment of Women in the Armed Forces that Congress enact, for the first time, a statutory prohibition barring women from ground combat.
355. See Women in Combat: Hearing Before the Subcomm. on Military Forces and Personnel of the H. Comm. on Armed Services, supra note 205, at 42-44 (statement of Representative Jon Kyi). The Commission had argued that such a prohibition would preserve "the justification used by the Supreme Court to uphold the constitutionality of the all-male draft." THE PRESIDENTIAL COMM'N ON THE ASSIGNMENT OF WOMEN IN THE ARMED FORCES, supra note 188, at 26. Kyl agreed that Congress needed "to ensure that a legal distinction exists between the role of men and women, thus to justify a policy of non-conscription of women." Women in Combat: Hearing Before the Subcomm. on Military Forces and Personnel of the H. Comm. on Armed Services, supra note 205, at 43 (statement of Representative Jon Ky.).
356. 137 CONG. REC. 20,722 (1991) (statement of Senator William Roth);
357. see also id. at 20,733 (statement of Senator William Roth); id. at 20,714; 20,721; 20,733 (statement of Senator Edward Kennedy).
358. The 1993 statute that eliminated the last statutory combat exclusion required the Defense Secretary to provide Congress with ninety days of notice before assigning women "to units and positions whose mission requires routine engagement in direct combat on the ground." The statute specified that the Defense Secretary's report notifying Congress had to include "a detailed analysis of [the] legal implication of the proposed change with respect to the constitutionality of the application of the Military Selective Service Act to males only." National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 542(b), 107 Stat. 1547, 1660 (1993). In May 1994, President Bill Clinton directed the Defense Secretary to "continue to review the arguments for and against continuing to exclude women from registration now that they can be assigned to combat roles other than ground combat."
359. Letter from Bill Clinton, President, to Thomas S. Foley, Speaker, House of Representatives (May 18, 1994), reprinted in 140 CONG. REC. 15,545 (1994);
360. Letter from Bill Clinton, President, to Albert Gore, Jr., President, Senate (May 18, 1994), re-printed in 140 CONG. REC. 15,547 (1994) (same). The Defense Department's November 1994 report concluded "that the restriction of females from assignments below the brigade level whose primary mission is to engage in direct combat on the ground, provides justification for exempting women from registration as set forth in the decision of the U.S. Supreme Court in Rostker v. Goldberg." However, the report noted that "[b]ecause of th[e] change in the makeup of the Armed Forces"-specifically "the significant increase" in military dependence on women "due to their increased combat and combat support roles"-"much of the congressional debate which, in the court's opinion, provided adequate congressional scrutiny of the issue 15 years ago, would be in-appropriate today." Dep't of Def., Peacetime Draft Registration and the Selective Service System (SSS) 2 (Nov. 16, 1994) (on file with author). The National Defense Authorization Act for Fiscal Year 2006, in turn, altered the congressional notification requirements from the 1993 statute.
361. See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 541(a)(1), 119 Stat. 3136, 3251-52 (2006). But the Defense Secretary's report providing Congress with notice of a decision to change the military's "ground combat exclusion policy" is still required to include "a detailed analysis of [the] legal implication of the proposed change with respect to the constitutionality of the application of the Military Selective Service Act (50 App. U.S.C. 451 et seq.) to males only." Id.
362. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 52 (1999);
363. JEREMY WALDRON, LAW AND DISAGREEMENT 15 (1999).
364. See Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 1952-80 (2003).
365. See, e.g., John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371, 371 (1988);
366. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWAL. REV. 1267, 1270-71 (1996).
367. See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 221-22 (1994).
368. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 253 (2004).
369. Six years before Brown v. Board of Education, 347 U.S. 483 (1954), President Harry Truman's executive order "declared [it] to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin." Exec. Order No. 9981, 3 C.F.R. 722, 722 (1943-1948). By October 1953, ninety-five percent of black Army soldiers were in integrated units, largely because of Army field commanders' actions during the Korean War.
370. See RICHARD M. DALFIUME, DESEGREGATION OF THE U.S. ARMED FORCES: FIGHTING ON TWO FRONTS, 1939-1953, at 218-19 (1969). The author of the first book on military integration later reported that Supreme Court Justices read his manuscript before issuing Brown. See id. at 4 & n.4.
371. The "Don't Ask/Don't Tell" policy that the Clinton Administration, Congress, and the military negotiated in 1993 currently governs the military service of gay people. See National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 571, 107 Stat. 1547, 1670-73 (1993) (codified at 10 U.S.C. § 654 (2006)).
372. This policy does not accord gay people equal rights, and thus represented a significant compromise for Clinton, who had initially planned to sign "an Executive order ending discrimination on the basis of sexual orientation in determining who may serve in the Armed Forces." William J. Clinton, Memorandum on Ending Discrimination in the Armed Forces, 1 PUB. PAPERS 23, 23 (Jan. 29, 1993).
373. Nonetheless, Clinton understood Don't Ask/Don't Tell to be "a substantial advance over" previous military policy permitting questions "about sexual orientation in the enlistment procedure." William J. Clinton, Remarks Announcing the New Policy on Homosexuals in the Military, 1 PUB. PAPERS 1109, 1111 (July 19, 1993).
374. The policy change was not made under judicial pressure; courts had consistently upheld military policies discriminating against gay servicemembers.
375. See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 460-61, 464-65 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Rich v. Sec'y of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984).
376. In 1987, Congress recognized the right of uniformed military personnel to wear an item of religious apparel that does not interfere with military duties, and is neat and conservative. See National Defense Authorization Act for Fiscal Years 1988 and 1989, Pub. l. No. 100-180, § 508(a)(2), 101 Stat. 1019, 1086-87 (1987) (codified at 10 U.S.C. § 774 (2006)).
377. This law reversed a Supreme Court decision upholding an air force prohibition on wearing a yar-mulke while in uniform. See Goldman v. Weinberger, 475 U.S. 503, 504 (1986).
378. Cf. LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 6 (2004) (discussing judicial underenforcement of "[t]he right to minimum welfare and the obligation to reform structurally entrenched social bias");
379. ROBIN WEST, PROGRESSIVE CONSTITUTIONALISM: RECONSTRUCTING THE FOURTEENTH AMENDMENT 30-44 (1994) (discussing judicial underenforcement of a Fourteenth Amendment right to government protection from private violence).
380. See, e.g., Hodge v. Dalton, 107 F.3d 705, 712 (9th Cir. 1997); Roper v. Dep't of the Army, 832 F.2d 247, 248 (2d Cir. 1987);
381. Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir. 1978).
382. See 42 U.S.C. § 2000e-2(e) (2000).
383. See supra text accompanying note 222.
384. See supra text accompanying note 115.
385. Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979).
386. The Court has stated that subjecting facially neutral state action with a disproportionately adverse impact on African-Americans to strict scrutiny "would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes." If such changes were to be made, the Court reasoned, they should be undertaken by "legislative prescription." Washington v. Davis, 426 U.S. 229, 248 (1976).
387. Feeney similarly noted that "[t]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility." Feeney, 442 U.S. at 272.
388. ASVAB CAREER EXPLORATION PROGRAM, COUNSELOR MANUAL, at iv, 4;
389. see also ASVAB: THE ARMED SERVICES VOCATIONAL APTITUDE BATTERY 3-7 (2006).
390. One government study reviewed the high school transcripts of 21,607 nationally representative graduates from 1990.
391. See SCOTT H. OPPLER ET AL., AM. INSTS. FOR RESEARCH & JOHN R. WELSH, DEF. MANPOWER DATA CTR., ITEM EVALUATION FOR THE ARMED SERVICES VOCATIONAL APTITUDE BATTERY (ASVAB) SCIENCE AND TECHNICAL TEST SPECIFICATIONS: FINAL REPORT 5, 7 (1997). Only 1.73% of the women had taken an auto/machine shop class, compared to 18.78% of the men. Only 0.78% of the women had taken an electricity/electronics class, compared to 9.75% of the men.
392. See id. at 7 tbl.5; see also id. at 17, 20 ("Males receive higher scores than Females on the [ASVAB's science and technical test areas] ⋯Controlling for exposure to content accounts for a non-trivial portion (21% to 64%) of the Male-Female differences in test scores.").
393. See U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 224, at 44 tbls.18 & 19.