Does lifting the combat ban for women make it easier or harder to reintroduce the military draft?

Here's a story explaining the new policy change and why it was done.

In the military, serving in combat positions like the infantry remains crucial to career advancement. Women have long said that by not recognizing their real service, the military has unfairly held them back.

No mention of the draft. When I first saw this story, I assumed it meant that it would be much more difficult, in the future, to bring back the draft. I cannot believe that the people would accept forcing women into combat. But now I'm thinking that removing this barrier makes it easier to restore the draft, because women won't really be forced into combat. With neutrally designed physical tests, no woman will be forced. These tests, keyed to what strong men can do, will exclude all but the most fit and motivated woman.

You don't need discrimination against women to filter out all the non-volunteers. And it will be more acceptable to Americans to force men and women into an institution that renounces any formal, express policy of sex discrimination. A male-only draft would raise objections, and a draft that includes women, but puts them in back up positions should be a problem both for women, because they are subordinated, and to men, because they are, because of their sex, more likely to be put in life-threatening positions.

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I've been thinking about this problem quite a bit over the years as I teach the old Supreme Court case Rostker v. Goldberg, which involved a challenge to the requirement, introduced in 1980, that males register for the draft. The draft itself had ended in 1973, but President Carter thought we should be prepared for the possibility of a draft. He wanted to include both women and men, but Congress made it male only, which was challenged as unconstitutional sex discrimination. The fact that only men would be used in combat was the basis for upholding the discrimination:

In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them.

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"Men try harder, because they know that women want men who earn more."

"Women don’t because they know that men have different priorities, and because they want to quit the rat-race at some point and have kids, making their tolerance for high debt levels rationally lower."

Says Glenn Reynolds, reacting to this Inside the Law School Scam post about how law school — with its high tuition and iffy job market — is a worse deal for women than for men.

This is getting strangely close to the argument that used to be made for discriminating against women in law school admissions (or for excluding them altogether): Since women are less likely to fully use their legal education, we shouldn't give what could be a man's seat to a woman. Women were suspected of going to law school for ulterior reasons, such as to find a good husband or — crazy ladies! — because they are interested in the topic... intellectually.

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"In the case of the male vegetarian, what may look like vegetarian or sexual orientation discrimination is really sex discrimination in the form of gender stereotyping..."

Says the abstract for a law review article titled "Of Meat and Manhood," which has led to a defamation and invasion of privacy lawsuit against the author:

New Jersey banker Robert Catalanello on December 28 sued Zachary Kramer, an associate dean at Arizona State University Sandra Day O'Connor School of Law....

The article cites former employee Ryan Pacifico's 2009 complaint against Catalanello, including a charge that he made numerous derogatory comments equating Pacifico's vegetarianism with homosexuality. "You don't even eat steak dude. At what point in time did you realize you were gay?" he said, according to Pacifico's complaint....

"Catalanello harassed Pacifico not because Pacifico is vegetarian, but because Pacifico was not sufficiently masculine," reads one passage that Catalanello cited. "The key here is that vegetarianism acts as a proxy for effeminacy."

Defamation? Presumably, Catalanello disputes Pacifico's allegations and doesn't like the way Kramer, in at least one part of his article, presents the allegations without saying something like "according to Pacifico's compliant."

Here's the "Meat and Manhood" article. More from the abstract:

[Current doctrine says] that an employee cannot raise an actionable theory of sex discrimination to “bootstrap” protection for an unprotected trait.... By focusing on the male vegetarian case study – which involves allegations of vegetarian, sexual orientation, and gender-stereotyping discrimination – the Article argues that sex discrimination often manifests as other forms of bias.

That is, the law doesn't give special protection to you because you're a vegetarian, but it does let you sue for sex discrimination. So the litigant tries to present anti-vegetarian animus as a matter of gender. That's an interesting problem of employment discrimination law, but think about why the courts don't approve of this "bootstrapping."

(Via Taxprof.)

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