[FN97]. 453 U.S. 57 (1981).
[FN98]. See Peter G. Bourne, JIMMY CARTER: A COMPREHENSIVE BIOGRAPHY FROM PLAINS TO POSTPRESIDENCY 44-55, 62-81 (1997). I mention President Carter's military service as a small reminder that, contrary to popular feminist characterization, military men are not uniformly antagonistic to military service by women. President Carter's stance, however, was not particularly well-received by its intended beneficiaries. "If, by including women, the President had expected to woo feminist support of registration, he had seriously misjudged the women's movement in America." HOLM, supra note 13, at 351.
[FN99]. Rostker, 453 U.S. at 60-61, 72-73.
[FN100]. See id. at 76 ("The purpose of registration, therefore, was to prepare for a draft of combat troops."). Both dissenting opinions observed that the record showed, in the event of a future draft, there would be a substantial demand for non-combat skills, positions that could be filled by either women or men. See id. at 83-86 (White, J., dissenting), 97-102 (Marshall, J., dissenting).
Two additional justifications were also offered by the majority in support of the decision. First, given Congress' constitutional authority over the composition of our military forces, great deference should be granted to its legislative choices. See id. at 64-69. Second, the idea of drafting women in a time of war simply made men squeamish. "[I]t is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services." Id. at 71.
[FN101]. See id. at 76. The constitutionality of women's exclusion from combat was not at issue in the case. See id. at 77 n.13.
[FN102]. Id. at 79. Ironically, the named plaintiff in Rostker, Robert Goldberg, joined the case years after its initial filing only because he was a medical student; physicians were still subject to the draft. The Vietnam-era draft had been discontinued and combat-eligible troops were no longer being registered. 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, 101-03. "He was being trained side by side with women in medical school; if he were challenged to support the war he thought it was reasonable that women receive a similar challenge." Id. at 102.
[FN103]. The same judicial reasoning was followed in Schlesinger v. Ballard, 419 U.S. 498 (1975), in which the Court justified a more forgiving schedule of promotion for women officers in the U.S. Navy on the basis that the combat exclusion barred them from many promotion-enhancing assignments.
[FN104]. Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 939 (1983).
[FN105]. Williams, supra note 16, at 182 n.50.
[FN106]. See, e.g., DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 100 (1989) (concluding that "as a matter of principle, the Rostker decision remained troubling," while recognizing that "most women did not place conscription high on their list of social priorities") (emphasis added).
[FN107]. See Lucinda M. Finley, Sex-Blind, Separate but Equal, or Anti- Subordination? The Uneasy Legacy of Plessy v. Ferguson for Sex and Gender Discrimination, 12 GA. ST. U. L. REV. 1089, 1094 (1996) ("The deep cultural stereotypes about women's physical and mental capabilities, courage, endurance, and honor, and the gendered notions of proper social roles were left unexamined in the Court's rush to embrace an apparently 'real' difference.").
[FN108]. Freedman, supra note 104, at 955.
[FN109]. Nancy Levit, Feminism for Men: Legal Ideology and the Construction of Maleness, 43 UCLA L. REV. 1037, 1060 (1996); see also NANCY LEVIT, THE GENDER LINE: MEN, WOMEN, AND THE LAW 108 (1998) ("Rostker was not about legitimate physical or social differences between the sexes, but about stereotypic distinctions between warriors and homemakers.").
[FN110]. Bartlett, Feminist Legal Methods, supra note 16, at 840.
[FN111]. Levit, supra note 109, at 1060.
[FN112]. The Soviet invasion of Afghanistan motivated President Carter to reactivate the draft registration system. He did not, however, seek authority to actually draft any registrants. See Rostker v. Goldberg, 453 U.S. 57, 60- 61 & n.1 (1981).
[FN113]. See B. Drummond Ayres Jr., The Draft; Despite Pentagon Denial of Plans, Many Are Looking Over Shoulder, N.Y. TIMES, Feb. 4, 1991, at A10.
[FN114]. See OLE R. HOLSTI, A WIDENING GAP BETWEEN THE MILITARY AND CIVILIAN SOCIETY? SOME EVIDENCE, 1976-1996, at 20 (Project on U.S. Post Cold-War Civil- Military Relations Working Paper No. 13, 1997).
[FN115]. 442 U.S. 256 (1979).
[FN116]. See, e.g., Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding a Michigan statute that prohibited a woman from working as a bartender, unless she was the wife or daughter of the male owner of the bar). "Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight." Id. at 466.
[FN117]. Feeney, 442 U.S. at 275.
[FN118]. See supra note 14.
[FN119]. See Feeney, 442 U.S. at 270.
[FN120]. See Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. CHI. L. REV. 453, 500 (1992) [[hereinafter Becker, Bicentennial Perspective] ("Such preferences give men an edge in running government and exclude women from power on the basis of a factor linked by government itself to sex.").
[FN121]. See, e.g., Freedman, supra note 104, at 943 ("the veterans' preference was upheld as a rational means to the legitimate end of encouraging military service, a means that just 'happened' to burden women disproportionately").
[FN122]. Professor Wendy Williams would describe this feminist critique as "I want what he's got but I don't want to be what's he's had to be in order to get it." Williams, supra note 16, at 189.
[FN123]. In something of a "separate but equal" format, one scholar has suggested that mothers (or men that "mother" children) should receive the same pay, benefits, and employment preferences as servicemembers or, alternately, that servicemembers be asked to serve for free (like mothers). See Littleton, supra note 16, at 1329-30. "It could also mean encouraging the use of motherhood as an unofficial prerequisite for governmental office." Id. at 1330.
More generally, legal feminists have attempted to decouple the association between military service and the responsibilities of citizenship, presumably because it would be appropriate to reward those who take on these responsibilities for the benefit of the community. "If some would claim that you can't be a citizen unless you fight, why not answer that you can't be a citizen unless you nurture?" Levin, Women and Peace, supra note 31, at 616. "The heart of the debate is actually a struggle regarding the social construction of human nature, and about whether humanness, and citizenship, must continue to be linked with military violence." Levin, Women and Violence, supra note 16, at 811-12. "My claim is that we 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." Id. at 821.
[FN124]. Hirshman, supra note 16, at 991 (emphasis added).
[FN125]. See, e.g., Mary M. Cheh, An Essay on VMI and Military Service: Yes, We Do Have to Be Equal Together, 50 WASH. & LEE L. REV. 49, 56 (1993) ("If only men are capable and required to serve their country--to fight if necessary to defend it--then only they can claim full citizenship. Women cannot realistically claim an equal place until they are equally at risk.").
[FN126]. Scales, Militarism, supra note 26, at 39. It remains futile, however, to complain that women have not been allowed to participate in decisions about the use of violence, while at the same time suggesting that it is inappropriate for them to do so in any way other than through outside protest. See id. at 37-38, 56-59.
[FN127]. Becker, Bicentennial Perspective, supra note 120, at 496.
[FN128]. Id. at 498-99.
[FN129]. See RAND REPORT, supra note 71, at 12 tbl.2.1. Figures for the specific services are as follows: 62% of Marine Corps positions are open to women; 67.2f Army positions are open to women; 91.2% of Navy positions are open to women; and essentially all (99.4%) of Air Force positions are open to women. See id.
[FN130]. It therefore overstates the issue to assume that the disparate effects of veteran's preferences today are primarily the result of discrimination within the military. See RHODE, supra note 106, at 179 ("Without question, the disparate impact of veteran-preference reflects previous overt discrimination within the military.").
[FN131]. See RAND REPORT, supra note 71, at 1-4.
[FN132]. Levin, Women and Violence, supra note 16, at 808; accord Morris, supra note 58, at 737-38.
[FN133]. One writer, for example, in looking for reasons why women are disadvantaged by the combat exclusion, speculated that women are denied valuable job training transferable to "lucrative civilian careers." See Levin, Women and Violence, supra note 16, at 809. She cited in support of that proposition another law review article; that article's author relied on an Army brochure assuring Army infantry ("foot soldier") recruits that even though "[t] here is not a civilian job like this one," "you can learn teamwork, leadership, responsibility, and to do things on your own which are abilities civilian employers look for in someone who wants a job." Lori S. Kornblum, Women Warriors in a Men's World: The Combat Exclusion, 2 LAW & INEQ. J. 351, 373 n.101 (1984). Both authors, however, fell victim to a certain quotient of Army "hype" necessary to attract recruits to a specialty that provides no civilian- ready technical training. No one with any familiarity with the military would recommend infantry training as the easy path to lucrative civilian careers.
It may be difficult to overcome all the easy assumptions about women and about other traditionally disadvantaged groups when speculating about their status in the military. Is it true that "virtually all positions of power are held by men"? Abrams, supra note 18, at 224. To the contrary, in 1993, 13% of officers in the military were women, a percentage greater than the proportion of women in the military overall. See LORY MANNING & JENNIFER E. GRIFFITH, WOMEN'S RESEARCH AND EDUC. INST., WOMEN IN THE MILITARY: WHERE THEY STAND 9 fig.1 (2d ed. 1998). Is it true that Blacks are excluded from almost all positions of power? See Abrams, supra note 18, at 224 n.33. To the contrary, the Army "is the only place in American life where whites are routinely bossed around by blacks." CHARLES C. MOSKOS & JOHN SIBLEY BUTLER, ALL THAT WE CAN BE: BLACK LEADERSHIP AND RACIAL INTEGRATION THE ARMY WAY 2 (1996).
[FN134]. See Abrams, supra note 18, at 235 n.61 (arguing that an equal- protection challenge to the combat exclusion would fail to adequately represent servicewomen "who find the combat ban stigmatizing and inhibiting to their careers but do not themselves wish to serve in the combat arms"); Levin, Women and Violence, supra note 16, at 813 n.44 (preferring that all military opportunities be open to women on a voluntary, but not an involuntary, basis). But see Becker, Bicentennial Perspective, supra note 120, at 500-01 (recognizing that equal eligibility for involuntary assignment is essential to gaining the equal influence that military participation offers).
[FN135]. Abrams, supra note 18, at 228.
[FN136]. See id. at 226 (distinguishing military expertise from mere attitudinal limitation).
[FN137]. See Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Comm. on Armed Services, 103d Cong. (1994); Mazur, Re-Making Distinctions, supra note 70, at 983-94 n.148.
[FN138]. See JOINT COMM. ON PRINTING, U.S. CONGRESS, 1995-1996 OFFICIAL CONGRESSIONAL DIRECTORY: 104TH CONGRESS 70 (1995); Michael Wines, The Gay Troop Issue; This Time, Nunn Tests a Democrat, N.Y. TIMES, Jan. 30, 1993, at A1 ("For a man whose military experience is limited to a year in the Coast Guard, Sam Nunn displays an uncanny knack for single-handedly surrounding the White House and taking its occupant political prisoner.").
[FN139]. See Findings of the Federal Advisory Committee on Gender-Integrated Training and Related Issues and Department of Defense Response: Hearings Before the Subcomm. on Military Personnel of the House Comm. on National Security, 105th Cong. (1998) (opening statement of Rep. Steven Buyer, chair of the Military Personnel Subcommittee of the House National Security Committee); Pat Towell, Hill Critics of Mixed-Sex Training Find Ammunition in Report, 56 CONG. Q. WKLY. REP. 762-63 (1998).
[FN140]. See JOINT COMM. ON PRINTING, U.S. CONGRESS, 1997-1998 OFFICIAL CONGRESSIONAL DIRECTORY: 105TH CONGRESS 112 (1997).
* * *
[FN153]. See VMI, 518 U.S. at 523.
[FN154]. See Faulkner v. Jones, 51 F.3d 440, 442-43 (4th Cir. 1995); see also Valorie K. Vojdik, At War: Narrative Tactics in The Citadel and VMI Litigation, 19 HARV. WOMEN'S L.J. 1, 18-19 (1996) (explaining why the United States was disadvantaged in VMI by the absence of a visible plaintiff). "In the VMI decisions, women as individuals are invisible. Without an actual female student seeking admission, the courts were able to disregard the concrete harm to young women which resulted from their exclusion from VMI ...." Id. at 10.
[FN155]. See Vojdik, supra note 154, at 16, 20-21; Citadel's First Female Cadet Tells of the Stress of Her Court Fight, N.Y. TIMES, Sept. 10, 1995, § 1, at 36 (noting that Faulkner was considerably overweight).
[FN156]. See LEVIT, supra note 109, at 93.
[FN157]. See VMI, 518 U.S. at 526-27 (describing the genesis, purpose, and character of VWIL). The Fourth Circuit had given VMI three choices in remedying its violation of equal protection: (1) admit women to VMI; (2) establish a parallel but separate program for women; or (3) abandon state support. See id. at 525-26.
[FN158]. See id. at 552.
[FN159]. See id. at 547-50.
[FN160]. Id. at 550.
[FN161]. Finley, supra note 107, at 1116.
[FN162]. Id. at 1117.
[FN163]. Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 98 n.346 (1995).
[FN164]. See id. at 101 n.354.
[FN165]. Id. at 101 n.356 (emphasis added). The emphasized portion of this quotation, setting out what is considered a reasonable viewpoint of some feminists, illustrates just how complete feminist abandonment of responsibility for the military can sometimes be. Military service "should not be done by anyone ever"? Who, then, does that leave in control of the tools of force and decisions concerningtheir use?
[FN166]. See Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 WIS. L. REV. 303, 336 [hereinafter Bartlett, Tradition, Change, and Progress] ("The fact that many traditions are bad underlines the necessity of distinguishing between the bad and the good, rather than treating all tradition as oppressive.").
[FN167]. See VMI, 518 U.S. at 551-53; Finley, supra note 107, at 1106; Levit, supra note 109, at 1061 n.106; Sara J. Mandelbaum, A Judicial Blow for "Jane Crowism" at The Citadel in Faulkner v. Jones, 15 N. ILL. U. L. REV. 3, 9-10 (1994).
[FN168]. See Avery, supra note 152, at 327 (observing that "VWIL is not a military institute at all").
[FN169]. The Office of the Dean of Students at Mary Baldwin College, host institution for the VWIL program, researched the design of VWIL uniforms "by looking through fashion magazines." "The military look is in this year ...." Women's Leadership School Unveils Uniforms, VIRGINIAN-PILOT (Norfolk, Va.), Feb. 16, 1995, at B7. Although VWIL officials insisted their goal was a "practical" uniform that "let femininity show through," I doubt fashion magazines provided much guidance on the practicality of clothing for military training. Id.; see also A Blend of 'Leadership and Femininity'; Uniform of Virginia's New Institute for Women Plays Down the Military, WASH. POST, Feb. 18, 1995, at B3 ("Being believers in single-sex education, we felt [our uniform] should be different, it should be feminine ....").
VWIL women would also be provided athletic opportunities only in the more civilized, individual sports--tennis, golf, and racquetball. "[T]hese sports are popular among corporate leaders." United States v. Virginia, 852 F. Supp. 471, 495 (1994), aff'd, 44 F.3d 1229 (4th Cir. 1995), rev'd and remanded, 518 U.S. 515 (1996). As noted earlier, see supra note 31, legal feminists have at times had an inexplicable aversion to team sports for women. See also Ann Althouse, The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook, 88 NW. U. L. REV. 914, 939-40 (1994) (rating the importance of sports as no higher than the importance of fashion).
[FN170]. Private Benjamin is a movie about a spoiled, wealthy young woman, played by Goldie Hawn, who finds a purpose in life by enlisting in the Army. See PRIVATE BENJAMIN (Hawn Meyers Shyer Miller 1980); Anna Quindlen, Public & Private; Summer's Soldiers, N.Y. TIMES, Sept. 13, 1990, at A27 (quoting Hawn's character as whining, "I think they sent me to the wrong place. You see, I did join the Army, but I joined a different Army. I joined the one with the condos and the private rooms."); Tom Kuntz, Hollywood Women Go to War, N.Y. TIMES, Aug. 31, 1997, § 4, at 1 (quoting Hawn's character as asking, "Do you have any color besides green?").
[FN171]. See Case, supra note 163, at 97-105; Finley, supra note 107, at 1096-1103; Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 84-86 (1995).
[FN172]. Case, supra note 163, at 99.
[FN173]. Finley, supra note 107, at 1098; see also Vojdik, supra note 154, at 7 (describing the "separate spheres" assumption of segregated education, in which "men should be educated in a rigorous military environment that prepares them for conflict, while women should be taught in a supportive environment that teaches cooperation"). The emphasis that the VWIL curriculum places on "cooperation" is misleading, because it suggests that cooperation is unimportant in a "rigorous military environment." To the contrary, basic training in the "real" military attempts to teach recruits quickly that they cannot succeed without helping, and being helped by, others. See RICKS, supra note 89, at 46 (noting that within 24 hours of arrival at Marine Corps basic training, recruits were assigned a task that, unbeknownst to them, can only be performed cooperatively). "The more astute members realize that the only way to do it within that [time] limit is to aid one another." Id.
[FN174]. Finley, supra note 107, at 1107.
[FN175]. See id. at 1110-11 (concluding that VMI's "means for maintaining notions of masculinity and masculine privilege" were not seriously questioned).
[FN176]. Id. at 1115.
[FN177]. Id. at 1105; see also Case, supra note 163, at 103-04 (arguing that it would be "narrow-minded and short-sighted" to choose only between admitting women to VMI or establishing a separate-but-equal VWIL; a better option would be to increase VWIL's funding and open the program to men); LEVIT, supra note 109, at 95 ("we should have been protesting the barbarism of [VMI's] educational approach all along").
[FN178]. Legal feminists must learn to master their fear of traditionally masculine characteristics in women when those characteristics are functional and productive. See Mazur, Women and Responsibility, supra note 40, at 36-44. "We must get beyond the feminist assumption that anything that is traditionally male is inappropriate for women or that anything traditionally female is worth protecting under the law." Id. at 39.
The association of masculinity, the military, and "badness" is nearly total, and both men and women are harmed when military service is gratuitously criticized. "The military and the military-parodying institutions of VMI and The Citadel are at the heart of what it means to 'be a man' in our culture." Finley, supra note 107, at 1126. One scholar has observed that "the Citadel and VMI cases provide an opportunity to reevaluate the entire notion of essential differences between men and women by considering what legal doctrines reinforce the notion that females cannot and should not be masculine." Franke, supra note 171, at 87. The cases also provide an opportunity to reevaluate feminist arguments that reinforce the same limiting notion.
[FN179]. Cheh, supra note 125, at 53.
[FN180]. Three professors have written a wonderful article that discusses how important it is for law students to appreciate the detail of historical events in the course of representing current clients. See Robert M. Jarvis et al., Contextual Thinking: Why Law Students (and Lawyers) Need to Know History, 42 WAYNE L. REV. 1603 (1996). As an illustration, they describe a classroom discussion in Contracts that touched on the defense of changed economic circumstances. When the professor pointed out a student's confusion in reciting the date of contract as sometime in 1929--it had actually been in 1924--the student's oblivious response was "Right. Well, anyway ...." After some discussion and several yawns, the class came to recognize the potential for change in economic circumstances between the two dates. Id. at 1611-12. One of my colleagues has also written on the centrality of "fact consciousness" in law school education. See Walter Otto Weyrauch, Fact Consciousness, 46 J. LEGAL EDUC. 263 (1996).
[FN181]. Jarvis et al., supra note 180, at 1615.
[FN182]. RICKS, supra note 89, at 63. Ricks' book follows a male recruit platoon through its eleven weeks of Marine Corps basic training. It vividly and thoughtfully captures military training objectives in light of the diverse peace-keeping and war-making missions we assign to our military today.
[FN183]. See CAROL BARKALOW & ANDREA RAAB, IN THE MEN'S HOUSE 34 (1990) ( "Discipline is valuable, claims the system--no matter how absurd--because its purpose is to forcibly teach an individual to function under difficult conditions."). Carol Barkalow was a member of the first class of women to graduate from the United States Military Academy at West Point in 1980.
[FN184]. William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 YALE L.J. 1623, 1675 (1997) (quoting MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1 (1995)). Professor Rubenstein may assume too quickly, however, that civil- rights specialists will necessarily have "closer familiarity to the goals of the (real) client at issue in test cases, the community." Id. at 1667.
[FN185]. Id. at 1677.
[FN186]. One of the earliest female firefighters with the San Francisco Fire Department has discussed the problems that result when civil-rights litigators fail to inform themselves about the community their clients seek to enter. See CAROLINE PAUL, FIGHTING FIRE 188-96 (1998). In Caroline Paul's view, the lawyers monitoring the consent decree concerning integration of women and racial minorities within the fire department had little interest in actually talking to firefighters--even female firefighters. "The men I work with, who are supposedly so prejudiced and narrow-minded, listen to me with much more interest and concern than this lawyer, who should be on my side." Id. at 195. Paul's frustration resulted from her unsuccessful attempts to educate the plaintiffs' lawyers--her lawyers--about "day-to-day life in the firehouse," id. at 196, so they might "understand how important it is that not just any women should be admitted to the department, but that strong women should be," id. at 189. The depressing similarity to feminist legal representation of military women is unmistakable; the firefighters' representatives were unable to see that their reflexive demonization of the fire department and its duty requirements as racist and sexist in every respect, while maintaining a studied ignorance of what those duty requirements were, "does women a great disservice." Id. at 190-93.
[FN187]. See Vojdik, supra note 154, at 17. It is ironic that Faulkner's lawyer argues "narrative can be an effective tool," id. at 2, when, at least from a veteran's perspective, it seems that Faulkner would have been helped so much by having some narrative knowledge herself.
[FN188]. Similar problems occurred at West Point when women were first admitted in 1976. The excessive media attention given to the new female cadets created resentment in their male classmates. See BARKALOW & RAAB, supra note 183, at 46-47.
[FN189]. Faulkner believed that her physical condition was adequate for The Citadel, even though she was considerably overweight, because she jogged several miles each day. See Linda L. Meggett, Nurse Says Faulkner Owes Apology; Records to Open: U.S. District Judge C. Weston Houck Issued an Order Late Friday to Unseal the Records of a Hearing on Shannon Faulkner's Physical Condition, POST & COURIER (Charleston, S.C.), Aug. 26, 1995, at A1.
[FN190]. To the objection that the advice "asks too much" when her presence was so vehemently opposed, I would respond that the entire course of litigation was enormously difficult for her also. It would make no sense not to go the last mile once she had finally entered The Citadel.