Armed Forces: Sex-Based Draft Violates Due Process and Equal Protection

United States v. Reiser, 394 F. Supp. 1060 (D. Mont. 1975). Congress is mandated by the Constitution to raise and support Armies, to provide and maintain a Navy, to make rules for the Government and Regulation of the Land and Naval Forces, and to provide for organizing, arming, and discipling the Militia... and the Authority of training the Militia according to the discipline prescribed by Congress. The power of Congress to conscript can be supported by the necessary and proper clause as a justifiable means for execution of the Art. I, §8 mandates. Although the power of Congress to raise and maintain armies is beyond dispute, whether the exercise of those powers enables Congress to conscript only male citizens and thereby exclude the conscription of females is questionable. Can an argument be made that such a distinction is a violation of equal protection or that no rational basis exists for such a classification? Previous challenges to the Selective Service Act based on violations of equal protection have been disallowed by holdings which maintained that Congress had a rational basis for discriminating against one sex. These courts uniformly applied the rational basis test