When politicians pay tribute to members of the U.S. armed forces, they almost always refer to our “brave men and women,” a recognition of the fact that women now constitute 14.5% of the nation’s 1.4 million active-duty military personnel. But even though women are permitted to serve, the nature of their service is limited because Defense Department regulations exclude them from most combat positions, a policy that primarily affects the Army and Marine Corps.
That would change if four servicewomen who have served in Iraq or Afghanistan are successful in challenging the Pentagon policy. Their lawsuit, filed last week in federal court in San Francisco, persuasively argues that regulations barring women from combat violate their constitutional rights. The current version of the policy, with minor changes, dates to a memorandum in 1994 from then-Secretary of Defense Les Aspin that barred women from units whose primary mission was to engage in “direct combat on the ground.” The directive also allowed for the exclusion of women from assignments “where job-related physical requirements would necessarily exclude the vast majority of women service members.”
Women seeking to rise in the ranks of the military find themselves in a paradoxical position. On the one hand, they are excluded from an array of combat positions that can be crucial to advancement. On the other, they find themselves in danger anyway because the military engages in legal fictions such as saying that a female soldier is “attached” but not “assigned” to a ground combat unit.
For example, one of the plaintiffs, Capt. Zoe Bedell, graduated at the top of her Marine Corps officer candidates class. In Afghanistan, she oversaw “female engagement teams” that accompanied male infantry units into the field. “My Marines supported infantry units,” said Bedell, who is now a reservist. “They patrolled every day. They wore the same gear. They carried the same rifles. And when my Marines were attacked, they fought back.”
In asking the courts to strike down the Pentagon regulations, the plaintiffs aren’t proposing that the military compromise its physical requirements for service in combat or sacrifice readiness on the altar of sexual equality. They are not arguing that women shouldn’t meet the same standards as men. But today’s blanket exclusion makes it impossible for a woman to demonstrate that she possesses the necessary skills.
One argument that has been made against allowing women in combat is that they supposedly don’t have the necessary strength and mental toughness to serve. Another is that the presence of women in a combat operation might undermine “unit cohesion.” (The same argument was made about gays in the military.) During this year’s Republican presidential primary campaign, former Sen. Rick Santorum said that if women were to take part in combat, their male comrades might neglect the mission because of “the natural instinct to protect someone that’s a female.” It also has been argued that integrating combat units poses logistical difficulties such as the need for separate bathrooms; yet such concerns haven’t prevented women from being placed in the thick of combat operations as part of female engagement teams.
Given the flimsiness of these arguments, the plaintiffs are on solid ground in contending that the exclusion policy fails the Supreme Court’s requirement that laws treating the sexes differently must have an “exceedingly persuasive justification” substantially related to “important governmental objectives.” That test was laid out by the court in a 1996 ruling in which it ordered the Virginia Military Institute to admit women. Less encouraging for the plaintiffs is a 1981 decision in which the court upheld the constitutionality of a law authorizing a male-only standby military draft. But in that case the provision to which the court extended deference was an act of Congress, not a policy of the executive branch.
Even if it is ultimately successful, the servicewomen’s lawsuit could take years to change the status of women in the military. A swifter and surer way to end the injustice they complain of is for the Pentagon or Congress to repeal the current policy. Women are serving — and dying — in war zones. It’s time the rules caught up to that reality.