Combat Exclusion: An Equal Protection Analysis
JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILE VA
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Although women have participated in war throughout Americas history, the Womens Armed Services Integration Act of 1948 excluded service women from combat positions. Some of those exclusions remain in effect today. Advocates of combat exclusion argue that it is the will of the American people to exclude women from combat because women are not physically or psychologically suited to warfare. In addition, there is public concern about unit cohesion, the protection of women, and the continuity of the American family if women are fully integrated into combat positions. Opponents of combat exclusion argue that the policy does not serve a military purpose, but that it is supported by stereotypical notions that have been disproved by recent history. Additionally, the combat exclusion policy does not meet the standards of the intermediate scrutiny test required by the Supreme Courts 1976 decision in Craig v. Boren. A gender-neutral assignment policy which addresses the major societal concerns associated with combat exclusion would pass intermediate scrutiny. Though the conflicting opinions and an equal protection argument against combat exclusion exist, if faced with a challenge, the Supreme Court would probably uphold the current policy because of the great deference that it currently gives to congressional decision making in military matters. That deference, however, is inappropriate when congressional decisions about service members most basic constitutional rights, such as equal protection, are not based upon military necessity. Therefore, if faced with a challenge to the policy, the Court should not give deference to the military, but should hold that combat exclusion is unconstitutional, and require the adoption of a gender-neutral assignment policy.
- Sociology and Law
- Military Forces and Organizations