Can the Defense Department overrule the U.S. Supreme Court? Can the Boy Scouts of America? The short answer is: Of course not. But a full response turns out to be more complicated, and it offers a lesson for thinking about the relationship between constitutional law and the evolving nature of rights.
Here’s the lesson. We often think that our rights are established by the Constitution and by the Supreme Court, interpreting that document. True, the Constitution is fundamental, but some of our most important rights, as we understand and live them, are a product of changing social values, which affect private institutions, public officials and sometimes even constitutional law.
We are now witnessing two compelling examples: the recent decision of the Defense Department to allow women to serve in combat, and the Boy Scouts’ announcement that it will reconsider (perhaps as early as this week) its longstanding national ban on gay members.
Let’s begin with a little history. In a 1981 decision, Rostker v. Goldberg, a divided Supreme Court resolved one of the most controversial sex-discrimination cases in the nation’s history. The constitutional question was whether the federal government could refuse to register women for the draft.
The government defended male-only registration with a breathtakingly simple argument: The primary purpose of registration was to ensure that people would be available for combat, which was limited to men by law. In the government’s view, registration of women would have no point.
Remarkably, those who challenged the law raised no objection to the exclusion of women from combat. They took that form of discrimination as a given. They merely contended that thousands of registrants, if called up for military service, would end up working in noncombat positions. They insisted that to avoid unconstitutional sex discrimination, the government should register men and women alike - while also using only men in combat.