Several Justices questioned Weinberg's charge that Congress wrote draft legislation in 1948 "in an atmosphere permeated by male chauvinism." Chief Justice Warren Burger asked the lawyer last month. "Since when is it the function of the courts to inquire into atmospheres?"
The government, represented by Solicitor General Wade H. McCree, has argued that the Selective Service should not register women for the draft since they are ineligible for combat roles. McCree has also contended that sex-discrimination within the military can be constitutional, and that Congress has the sole right to raise an army without interference from other branches of government.
"The heart of the matter is that no women will fight, and no one has proposed they go into combat," Rostow, the Yale law professor, said. He added that "no one in the legal community will be surprised" if the Court upholds the all-male registration.
Robert Bork, another professor of Law at Yale, said that the plaintiffs and groups, such as the American Civil Liberties Union, which support them "are looking for an abstract ruling without relation to the facts and circumstances of the military."
Bork also said the Court should not worry about damaging its record on sex discrimination. because it has upheld certain laws in the past ten years which do apply differently to men and women.
Reaction to the case from women's groups has mostly favored the elimination of the existing registration program, but opponents to the Equal Rights Amendment have defended the males-only signup, warning of a threat to society if women are ever forced into military service.
One group of 16 women has actually filed a brief with the Court supporting the government's position, saying that drafting women "would place unprecedented strain on family life."
Leaders in Congressional debate over registration and the draft have declined to predict the possible results of a decision striking down the existing program. Staffers in the Senate and House of Representatives have said, however, that such a ruling could give supporter of the draft an excuse to re-open debate on that issue.
Legislators and their aides agree that Congress will probably not act to change existing policies until President Reagan announces his plans for registration. He severely criticized Carter's renewal of registration during his campaign for office and has voiced his opposition as recently as February.
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