UPDATE: Do women have a constitutional right to serve in military combat?

Defense Secretary Leon Panetta is expected to announce on Thursday that he is ordering the start of a process that would allow women in the military to take positions in direct ground combat, with some positions opening as early as this year.

The process, however, involves studies running through 2015 by the military services on how to implement the new assignments.

Many news outlets quoting senior Pentagon officials disclosed the Panetta plan Wednesday. The Pentagon, meanwhile, has been trying in recent months to fend off lawsuits in federal courts testing the constitutionality of the ban on women in combat roles. Those lawsuits have been moving fairly slowly.

If the cases are not dismissed, they could lead to court rulings on the issue even before the process started by Panetta has been completed. Constitution Daily described the constitutional issues at stake in an earlier post below from May 2012.

The statement at issue:

“We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman. It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.”

– University of Virginia law professor Anne Coughlin, in a news release issued by the Law School on May 24, discussing a new lawsuit filed that day challenging the constitutionality of the Pentagon’s continued policy of excluding women from assignment to Army and Marine units that engage in direct hostile combat with enemy forces.

We checked the Constitution, and…

The history of women’s service in the U.S. military has been developing for more than a century – going back to 1908, when women were first allowed to become Navy nurses – and it has always been much more an issue of military management than of constitutional dispute.

Since the early 1900s, the history has been a story of change, though only gradual in pace and scope. But there is one constant in this history: women have never been allowed to serve in Army and Marine combat units – that is, those military units with the primary mission of engaging in direct hostile combat with an enemy. They can now fly planes or helicopters, or serve on submarines, but not in infantry platoons.

Even as recently as last February, the Pentagon, in opening up more than 14,000 new positions to women servicemembers, retained the ban on their serving in “ground combat operations.”

That ban, first made a formal policy in 1993, has always been based on the unwillingness to have women soldiers exposed to direct fire from the enemy, direct engagement with enemy troops, or the risk of capture. In short, the idea was the protective one that women had no place on “the front lines.”

One of the new pressures on those ideas, though, is that in modern warfare – as in Iraq and Afghanistan – the concept of a “front line” has vanished. Anywhere in a country where there are hostile insurgent forces, using roadside bombs, for example, there is no longer what military experts call “the linear battlefield” made up of “forward” and “rear” positions.

And, of course, the realty in the wars in Iraq and Afghanistan has been that women are quite often among the casualties, despite the formal ban on their serving in combat units. More than 800 women have been wounded in those two conflicts, and 144 have been killed.

About Constitution Check

• In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

And there is a further reality that translates into a “glass ceiling” for women in the military, especially in the Army. Four out of every five generals in the Army have backgrounds in combat operations, so service in that line of military duty is a channel – mostly open to men – to the highest ranks.

The military has been creating increasing opportunities for women, for two main reasons: their skills and talents are needed in an all-volunteer force, and the success of women’s advocacy groups in challenging gender barriers in many sectors of American society has had its impact on the military, too.

But the new lawsuit filed by Professor Coughlin, some of her students and outside lawyers faces three potential obstacles as it makes its way through the federal courts, perhaps up to the Supreme Court. Those barriers are in the Constitution itself, or are in Supreme Court rulings interpreting the Constitution.

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.” Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights. For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions. In 1981, in the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men. It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty. The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

Clearly, constitutional notions have changed, and the new lawsuit against combat exclusion could show how far that change has gone.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.