Wednesday, October 18, 2006

Amicus Curiae assignment

This memorandum is being written to petition The Center for the Advancement of Women in Public Service to submit an Amicus Curiae brief in the case of Pinkerton v Rumsfeld.

Currently the government is attempting to uphold the exclusion of women from military combat. While this may be a source of relief for some women, it is an area of contention for others. At this time Sally Pinkerton is suing the government for the right to engage in combat. Whether combat is a noble endeavor or not is moot. What is important to consider here is that to deny Sally the right to fight in combat is a violation of her rights under the Equal Protection Act of the Fourteenth Amendment (U.S. Constitution).

As stated by the Fourteenth Amendment: “No state shall …deny to any person within its jurisdiction the equal protection of the laws.” In the current case of Pinkerton v Rumsfeld, it is being argued by the government that a woman’s role as prospective mother makes her unfit for combat and she should therefore be excluded from a possible draft. This is in direct conflict with equal protection as specified by the Constitution.

Government sanctioned fetal protection is a form of sex-based discrimination that treats all women as if they will bear children. It assumes that all women are potential mothers regardless of fertility and whether or not they at all wish to become mothers. If this logic were followed in the case of men, the nation would have no combat fighters available. Due to basic biology, every person is a perspective parent. Do the duties as parents actually supersede the duties of national protection? Or is this just a way to eliminate the opportunity of combat to a certain class of people? Since the distinction of parenthood is not carried over to men, it is safe to conclude that the rule keeping women out of combat is meant to impede access to a certain class of people. At its best, this statute is capricious and unreasonable. As stated in Reed v Reed [404 U.S. 71 (1971)] “the arbitrary preference established in favor of males…cannot stand in the face of the Fourteenth Amendment’s command that no state deny the equal protection of the laws to any person within its jurisdiction”(Bartlett, 16).

Allowing women into front line combat will not jeopardize the United States’ position as a world power. Nor will it negate the efforts of war. Having women in the thick of battle will not make the nation’s efforts in war more exhausted and will not cause American troops to lose battles. Bullets fired by women are just as strong as those fired by men. Moreover, it has been decided that preferential or discriminatory treatment on the basis of an immutable characteristic such as sex cannot hold as it is a result of the accident of birth and not of merit. Also, that the attribute of sex “frequently bears no relation to the ability to perform.” [Frontiero v Richardson 411 U.S. 677 (1973)] (Bartlett, 16).

These two court cases illustrate two very important points: that sex does not equate to merit and that arbitrary rules that give preferential status to a class based on sex, or taken away by the same token, do not coincide with the regulations prescribed by the Fourteenth Amendment. It is for these reasons that women should be allowed to enter into combat. In Rotsker v Goldberg 453 U.S. 57 (1981), it was decided that women were to be excluded from the draft. This decision was made on the basis that the draft is used in times of mobilizing combat and women are prohibited from occupying combat positions. If women are considered for combat, then this case lacks precedence. That is to say, if women are allowed to enter into combat it would only makes sense to require them to register with the Military Selective Service for possible future drafts. The notion of the draft is not the relevant argument in the case. The argument is whether it is constitutionally acceptable to exclude women from combat. Disallowance of the draft does not negate a woman’s access to combat, but the absence of women in combat negates the draft.

In Pinkerton v Rumsfeld, the idea that the potential of becoming a parent can exclude one sex from front line combat and not the other is, on its face, an illegal sex-based discrimination. Such a statute is not sanctioned by the Fourteenth Amendment and does nothing to promote victory in times of war. Weighing the facts, a logical person can only come to the conclusion that prohibiting women from joining in combat is arbitrary, sexist, and unconstitutional. It is for this reason that CAWPS is requested to draft an Amicus Curiae brief on behalf of Sally Pinkerton.