# Petition for Writ of Certiorari — Mack v. Weinberger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1830%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 815 ## Text Ge ~ 179% 22 FILED IN THE Supreme Court of the Unite Stkthse® ive OCTOBER TERM, 1985 an oon JR = ans oomnatine CARLENE MACK, SHIRLEY STUKES, PATRICIA RAMSURE, QUEEN ESTHER TAYLOR, THELMA BARNES, and MAXINE MCNEILL, Individually and on behalf of all other persons similarly situated, and TRINA LEWIS, Intervenor at : Petitioners, —Vvs.— DONALD RUMSFELD, Individually and in his official capacity as Secretary of Defense, MARTIN R. HOFFMAN, Individually and in his official capacity as Secretary of the United States Army, THOMAS C. REED, Individually and in his official capacity as Secretary of the United States Air Force, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PHYLLIS GELMAN JAMES I. MEYERSON Suite 11-A Counsel of Record 211 West 106th Street 351 Broadway, 3rd Floor New York, New York 10025 New York, New York 10013 (212) 749-5736 (212) 226-3310 Of Counsel To: Of Counsel To: GREATER UPSTATE LAW PROJECT GREATER UPSTATE LAW PROJECT By: STEVEN BROWN— Director By: STEVEN BROWN—Director 101 Powers Building 101 Powers Building Rochester, New York 14614 Rochester, New York 14614 (716) 454-6500 (716) 454-6500 and NATIONAL CENTER ON WOMEN & FAMILY LAW By: LAURIE Woops—Directo1 799 Broadway, Room 402 New York, New York 10003 (212) 674-8200 ATTORNEYS FOR PETITIONERS (Counsel continued on inside front cover) On the Petition: MARGARET KLAW, ESQ. BRUCE CAMPBELL—Legal Director American Civil Liberties Union of Ohio Foundation 360 South Third Street Suite #150 Columbus, Ohio 43215 (614) 228-8952 ATTORNEY FOR PETITIONER PLAINTIFE-INTERVENOR LEWIS Law Offices of Phyllis Gelman, Esq. Suite 11-A 211 West 106th Street New York, New York 10025 (212) 749-5736 QUESTION PRESENTED Do military regulations which cate- gorically exclude single parents from enlistment violate petitioners' .funda- mental right to have and raise a family? TABLE OF CONTENTS Page QUESTION PRESENTED........-- eee eeeeees i TABLE OF AUTHORITIES.........---e0- iii OPINIONS BELOW. ......ccccccccccssccess 1 JURISDICTION . cv cccewecec rence er eesenss 1 CONSTITUTIONAL PROVISION............-- 2 CHALLENGED REGULATIONS.........-+-e2- 2 STATEMENT OF THE CASE........---eeeee> 4 Factual Background........--.-+-2+e+- 4 Procedural Background...........- 16 REASONS FOR GRANTING THE WRIT........ 20 I. RESPONDENTS' EXCLUSION OF SINGLE PARENTS FROM ENLISTMENT IMPER- MISSIBLY INTERFERES WITH PETI- TIONERS' RIGHT TO HAVE AND RAISE A FAMILY... cccccccccreccscccers 20 Il. PETITIONERS' FAMILY RIGHT CLAIM IS ENTITLED TO A REVIEW ON THE MERITS . .cccvcce ses esses asa eeenes 27 CONCLUSION... .cccsccccccecssenesvneues 31 INDEX TO APPENDIX...... ever TT Te. Al -ii- TABLE OF AUTHORITIES Cases: Page Andrews v. Drew Municipal Sep- arate School District, 50/7 F.2d 611 (5th Cir., 1975), cert. dismissed as improv- ranted, 425 U.S. identl 559 (T5725 EE a a 22 Ayotte v. Secretary of De- fense, No. 80-0328P (D.Me., EN aa an A boy 605 060.005 606 19 Beller v. Middendorf, 632 F.2d 788 (9th Cir., 1980), reh. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. Te ee coe eeccnn 29 Cleveland Board of Education v. LaFleur, 414 U.S. 632 TRS aa, as Dike v. School Board of Orange County, Florida, 650 F.2d RS 5) 21 Dillard v. Brown, 652 F.2d ES.) 19 Drake v. Covington Board of Education, 371 F.Supp. 974 EE re 22 Frontiero v. Richardson, 41l So En 25 Page Goldman v. Weinberger, 54 U.S.L.W! 4298 (March 25, i Sere oer ere rT ree eT 26, 28, 29, 30 Henson v. Alexander, 478 F. Supp. 1055 (W.0. Ark. , 1979). ..005. 19 In re Marriage of Carney, 24 \ Cal. 3d 725, 598 P.2d 36 es | rar rary ee ee eee 10 Lindenau v. Alexander, 663 F. Be ee Se Gee, 5 REED 65 oe dk 0k 0002 19 Loving v. Virginia, 388 U.S. eek ee eee re Te ee Te ere ree re 20 Mack v. Rumsfeld, No. 85-6184 (2nd Cir., January 29, 1986, amended, March 5, 1986)........ 18, 27 Mack v. Rumsfeld, 609 F.Supp. ba Ae OM ee) ) Pere ee passim Meyer v. Nebraska, 262 U.S. 390 CAPES? ie ene DWAR EOOE 6 CED N OD HERR S 20 Moore v. City of East Cleveland, RSe Wis See Seer hes kus own a Pe Noel v. Derrick, 71 A.D.2d 704, 2) Bo Mee ee ls ) ere 10 Painter v. Bannister, 258 la. 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949 (1966)........ 10 Parker v. Levy, 417 U.S. 733 i. re Seer ee Pree ere eee ere 30 -iv- Personnel Administrator of Massachusetts v. Feeney, BAe Sees ae COSTE ew ct a wetenckewess 7 Pierce v. Society of Sisters, gf Meet: Bee Oe) eer eee. 20 Rostker v. Goldberg, 453 U.S. DF COPS L cdc weak wteweseseees de esons 26 Santosky v. Kramer, 455 U.S. Bt) eee eer es eee ee 20 Skinner v. Oklahoma, 316 U.S. MB): i rr ee ee eee 20 Stanley v. Illinois, 405 U.S. OAD CEPT EP hs iiccestetacew¥es eens 20, 21 West v. Brown, 558 *.2d 757 (Sth Cic., 1977), cert. denied, 435 U.S. 926 (1978)........ 19 Wisconsin v. Yoder, 406 U.S. Re CROCE aks KR 04S REE ROEM 20 Zablocki v. Redhail, 434 U.S. Ph ener ae, £2; 49 Statutes: United States Constitution, at. |. nee rer eee passim Other Authorities: "Critical Choices for the Eighties," Twelfth Report of the National Advisory Council on Economic Oppor- tunity, Superintendent of -V- (cont. ) Documents, U.S. Government Printing Office, Washington, D.C. 20402, Stock No. 041-008- 00018-1 Holm, Women in the Military: An Unfinished Revolution, arr e Terre ete eee rT eee eee Uniform Marriage and Divorce Ee ee ere alec a Saw ae 4 8 eee U.S. General Accounting Office, "Army Needs Better Data to Develop Policies for Sole and *-—e*e ee eeeeeeeeneteee#sk#keeeese#see#ee## eee Inservice Parents,’ 1982....12, 13, 27 -vi- OPINIONS BELOW The decision of the United States District Court of New York is reported at 609 F.Supp. 1561 (W.D.N.Y. 1985), and is set forth in petitioners’ Appendix 1 at A2, infra. The per curiam Opinion of the United States Court of Appeals for the Second Circuit is unreported and is set forth in Appendix 2, at A56, infra. An Order amending the per curiam Opinion is unreported and is set forth in Appen- dix 3 at A60, infra. JURISDICTION The decision of the United States Court of Appeals for the Second Circuit is dated January 29, 1986. Jurisdiction is conferred on this Court by 28 U.S.C. Section 1254 (1). CONSTITUTIONAL PROVISION Constitution of the United States, Amendment V: "No person shall...be de- prived of life, liberty, or property, without due process of law..." CHALLENGED REGULATIONS The texts of the challenged regula- tions are set out in the appendices to the decision of the District Court (Ap- pendix 1, infra) as follows: Army Regulation AR 601-210, effec- tive April 1, 1975, and continued July 28, 1976, same as Army Reserve Regulation AR 140-111, effective May 1, 1975, at A45, Army Regulation AR 601-210, effec- tive November 1, 1980, as amended Decem- ber 1, 1980, at A46, infra. Army Reserve Regulation AF 140-111, effective February 1, 1979, at A47, in- fra. Army and Army Reserves combined Reg- ulation AR 601-210, effective October l, 1982, at A49, infra. Air Force and Air Force Reserves AFR 33-3, effective March 31, 1975, at A52, infra. Air Force and Air Force Reserves AFR 33-3, effective October 14, 1977, at A53, infra. | Air Force and Air Force Reserves ATCR 33-2, effective August 31, 1982, at A55, infra. STATEMENT OF THE CASE This case involves petitioners' fundamental right, protected by the Due Process Clause, to have and raise a fam- ily. The issue presented is whether the Army, Air Force, the Army Reserve and the Air Force Reserve can categorically exclude from enlistment all single par- ents with legal custody of minor child- ren. FACTUAL BACKGROUND The military's ban on the enlist- ment of single parents has devastating social consequences for a large and dis- advantaged segment of the United States population. The people excluded are overwhelmingly female - the ratio of fe- male single parents to male single par- ents under the age of 25 is 14 to l. They are also impoverished - single mothers are the poorest of all popula- tion groups in the country, and their numbers are growing rapidly. The Na- tional Advisory Council on Economic Op- portunity found in 1980 that "All other things being equal, if the proportion of the poor who are in female-headed fam- ilies were to increase at the same rate as it did from 1967 to 1977, the poverty population would be composed solely of women and their children by about the year 2000."2 Black women, who are three times more likely than white women to join the military, are especially affected by re- spondents' regulations. Young black wo- men are 31 times more likely to be sin- 1. "Critical Choices for the Eighties," Twelfth Report of the National Advisory Council on Economic Opportunity, Super- intendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, Stock No. 041-008-00018-1. a gle parents than their male counterparts. They comprise 35% of all single mothers; more than half the children born to black women of all ages are born to sin- gle mothers. Black women have the high- est rate of unemployment of any adult group in the country and face the high- est rate of poverty: more than 702% of all black families in poverty are headed by women. The opportunities which military service would provide to single parents are unparallelled. Together, the armed forces comprise the largest employer in the country and the largest provider of teabnine. For petitioners, military service presents an opportunity to re- ceive training, to make a reasonable sal- ary that is not reduced by sex discrim- ination, and to avoid the vicissitudes of unemployment, which was 11.1% for a single mothers in 1978, as compared to 6.0% for the general population. Also, those employed by the active services become veterans upon discharge and are entitled to a panoply of special rights, including veterans’ preferences for civ- il service iobs and hence the opportun- ity for a civilian career, see, Person- nel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), as well as extensive education, health, disability, and pension benefits. Finally, enlist- ment in the armed forces provides a unique opportunity to make a career of serving one's country. If single parents choose to pursue this opportunity by complying with re- spondents' regulations, they pay a heavy price: they must give up custody of their children or terminate all parental rights outright. To enter the Air Force =o or Air Force Reserve, single parents must relinquish custody permanently; for the Army or Army Reserve they must relin- quish custody for the duration of their first term of enlistment, which is us- ually three years. Because of the legal requirement that custody decisions must be made in the child's best interest, a parent who relinquishes custody for three years may never be able to regein it. Thus respondents' regulations re- quire the actual severance of family ties, often on a permanent basis. A leading expert on family law, Professor Carol S. Bruch of the Univer- sity of California at Davis School of Law, discusses the implications of a three year relinquishment : 7 2. Bruch, "Implications of Army and Air Force regulations excluding single par- ents with custody from enlistment (Mack v. Rumsfeld)", March 8, 1983, at 10-11, éfie With its increased emphasis on con- tinuity of primary nurturing rela- tionships and surroundings, custody law now insures that children will not be bounced back and forth to suit the convenience of adults. The legal test that awards custody according to the best interest of the child stands as a warning to parents who would place their chil- dren for extended care with another, whether a parent, relative or stranger. A consistent pattern of judicial decisions demonstrates its effect. If a person in whose home the child has resided (i.e., a sin- gle parent who has relinquished custody in order to enlist) seeks to regain custody after a lengthy period, return of the child cannot be anticipated. A period of three or more years is considered ex- tremely long for children of any age; it would be quite rare for children (other than, perhaps, teenagers) to be returned to a par- ent after such a lengthy absence unless the children wished the re- turn. And, it would be highly un- usual for children who had devel- oped a stable, loving relationship in a new household to wish to re- turn to a parent who had been but a visitor in the interin. Cases across the country bear out this 2. (cont.) reproduced, at Joint Appendix 0391-0405, filed with the U.S. Court of Appeals for the Second Circuit. in analysis.> Even transfer to a close relative does not assure return. Class member Geraldine Schmidt transferred custody of her two-year old daughter to her parents when she was seventeen, in order to enlist in the Air Force. Mid- way through the enlistment process, when she discovered that the Air Force would not permit her to regain custody, she decided not to enlist. Her parents, how- 3. E.g., Noel v. Derrick, 71 A.D.2d 704, 418 NY. Ss. 2d 481 (1979) (father could not regain custody because children had been living with mother less than two years); In re Marriage of Carney, 24 Cal. 3d 725, 598 P.2d 36 (1979) (mother could not regain custody of children after five years even though father had become a quadriplegic); Painter v. Bannister, 258 Ia. 1390, 140 N.W.2d 152, cert. denied, 385 U.S. 949 (1966) (custody awarded to grandparents even though father had in- tended them to care for child temporar- ily and had sought return after sixteen months); see also §409 of the Uniform Marriage and Divorce Act requiring that a modification petition filed within two years of entry of a custody decree be de- nied without a hearing unless the child's physical or mental health is seriously endangered. «PO« ever, refused to give her daughter back. Because Ms. Schmidt does not have the money to fight a custody battle in court, her daughter - now eight years old - con- tinues to live with her parents. Al- though her daughter stays with her per- iodically, Ms. Schmidt's parents always come to take her back, carrying their cus- tody papers and accompanied by police officers." Respondents attempt to justify their regulations by arguing that single par- ents cannot be relied upon to deploy when needed. However, this perception is factually unsupported. It is not borne out by the facts as to the peti- tioners - who are able to care for their children and meet their responsibilities 4. Affidavit of Geraldine Schmidt, re- produced at Joint Appendix 1985-1987, filed with the U.S. Court of Appeals for the Second Circuit. at. as full time workers - nor by respon- dents' own studies of single parent per- formance. The District Court found that "better, more reliable techniques for assessing the day-to-day performance and the likely availability of single parents in time of national crisis should be im- plemented...'' Mack v. Rumsfeld, 609 F. Supp. at 1568. In the only independent study done on the subject, the U.S. Gen- eral Accounting Office concluded that the Army has no basis for excluding single parents from enlistment.” 5. U.S. General Accounting Office, “Army Needs Better Data to Develop Policies for Sole and Inservice Parents", 1982. The GAO reviewed the Army's studies of the performance of single parents and did an additional study of its own. The GAO concluded, "The Army lacks a solid basis for restricting the enlistment of sole and inservice parents...Our review showed that while some problems do exist, most sole and inservice parents included in our survey attend and perform work at least satisfactorily and would most like- ly deploy in a timely manner in the event ~~ Indeed, the District Court noted that petitioner Thelma Barnes is "the most dramatic single illustration," 609 F.Supp. at 1569, of the lack of justifi- cation for respondents’ categorical ex- clusion of single parents. Barnes' en- listment in the Army Reserve was voided because she was a single mother even though her mother, with whom she and her child lived, provided full-time child care. However, Ms. Barnes' sister, who enlisted in the Reserve on the same day as Ms. Barnes and who also had a child cared for full-time by their mother, was able to remain in the Reserve because she was married. Ms. Barnes' sister, who subsequently separated from her husband, has been promoted to sergeant. The enlistment ban on single parents 5. (cont.) of war or a national emergen- cy" (at 11). Reproduced at Joint Appen- dix 1891-1934, filed with the U.S. Court of Appeals for the Second Circuit. «ots is not based on concerns about deploya- bility; rather, it is merely the most recent incarnation in a series of enlist- ment regulations which have imposed var- ious "moral" criteria on women seeking to enter the armed forces. Until recently, the services had an outright ban on the enlistment of unwed mothers, regardless of whether their children had been given up for adoption or had died. This ex- clusion was justified on the grounds of morality and the image of the services, and not on the basis that unwed mothers would be unable to perform military du- ties. No such ban was applied to the en- listment of men who had fathered illegit- imate children. ° 6. Memorandum for the Record: Enlistment Policies for Unwed Mothers, 11 September 1970, with attached documents, repro- duced at Joint Appendix 0593-0617, filed with the United States Court of Appeals for the Second Circuit. «thn In addition, Army enlistment regula- tions detailed "Special Processing for Women.'' The purpose of the special pro- cessing (which included a statement of marital status and the number and ages of dependents under 18 years of age) was, inter alia, to insure that only mature, motivated, emotionally stable, adaptable, self- disciplined and fully qualified wo- men who possess the moral and be- havioral attributes necessary for military life are accepted for en- listment in the regular Army. (emph. added). Those regulations - like the current ex- clusion of single parents from enlistment which falls almost exclusively on single mothers - were motivated not by military necessity but by a stereotyped view of 7. Army Regulation 601-210, Section VII, Special Processing for Women, reproduced at Joint Appendix 0782, filed with the United States Court of Appeals for the Second Circuit. how families should be structured. As Major General Jeanne Holm (USAF Ret.) has written, for the military "a woman's ob- ligations as wife and mother superseded all other responsibilities and were as- sumed to be inherently incompatible with military service.""® PROCEDURAL BACKGROUND The petitioners are seven single mothers, six of whom are black, who were denied enlistment in the Army, Army Re- Serve, Air Force, and Air Force Reserve solely because they are single parents with custody of minor children. Peti- tioners brought this action in 1976 in the United States District Court for the Western District of New York, alleging that the regulations violate their Fifth Amendment right to freedom of choice in 8. Women in the Military: An Unfinished Revolution, at 162 (1982). aiGe eee family matters, create an unconstitu- tional irrebuttable presumption, and dis- criminate against then because they are women. In 1977 petitioners were certi- fied to represent a nationwide class of “women applicants who have been or are being denied admittance into the Army or Air Force because of Army or Air Force policies that deny admittance to a single parent with a child under 18 years of age."' Opinion and Order of the District Court, dated June 20, 1977. On cross motions for summary judg- ment, the District court granted respon- dents' motion, ruling that the controver- sy was justiciable but rejecting all of petitioners’ constitutional claims. Despite the ruling in favor of justicia- bility, the District Court failed to re- view petitioners' family right claim on the merits, stating merely that petition- > > ers have no right to join the military. On appeal, petitioners were suppor- ted by amici curiae American Veterans Committee, Comparable Worth Project, Com- mittee on Children and the Law of the Association of the Bar of the City of New York, The Employment Law Center, The Na- tional Association for the Advancement of Colored People, National Coalition Against Domestic Violence, National Con- ference of Black Lawyers, National Poli- tical Congress of Black Women, Women's Equity Action League, and Women's Legal Defense Fund. The United States Court of Appeals for the Second Circuit affirmed the opinion of the District Court in a per curiam opinion dated January 29, 1986, as amended March 5, 1986. The opinion did not mention the family right issue. Thus, although this case is now ten years tin old, no court has reviewed the petition- ers' claim that the Army and Air Force's exclusion of them from enlistment because they are single parents impermissibly in- terferes with the exercise of their fun- damental right to have and raise a fam- ily.? 9. Family rights challenges to the en- listment ban on single parents, brought in other circuits, have been dismissed because of doctrines of severely limited justiciability in military cases, Linden- au v. Alexander, 663 F.2d 68 (10th Cir. 1981); West v. Brown, 558 F.2d 757 (5th Cir. 19/7/), cert. denied, 435 U.S. 926 (1978); Henson v. Alexander, 478 F. Supp. 1055 (W.D. Ark., i979); Ayotte v. Secre- tary of Defense, No. 30-0328P (D. Me., Sept. 9, 19/8). The Second Circuit pro- perly considers petitioners’ claim jus- ticiable: petitioners were able to con- duct discovery and to develop their claim. Thus, this is the only case in which a fully-developed record on the is- sue is likely to reach this Court. (The Third Circuit held a similar claim jus- ticiable, Dillard v. Brown, 652 F.2d 316 [3rd Cir., 1981], but respondents set- tled the case.) 19. REASONS FOR GRANTING THE WRIT I. RESPONDENTS' EXCLUSION OF SINGLE PAR- ENTS FROM ENLISTMENT IMPERMISSIBLY IN- TERFERES WITH PETITIONERS' FUNDAMENTAL RIGHT TO HAVE AND RAISE A FAMILY Freedom of choice in matters of family life is a fundamental liberty interest protected by the Due Process Clause. Santosky v. Kramer, 455 U.S. 745 (1982). This Court has long recognized the right of parents to raise and educate their children, Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), Wisconsin v. Yoder, 406 U.S. 205 (1972), Stanley v. Illinois, 405 U.S. 645 (1972); and the right to form families, Skinner v. Oklahoma, 316 U.S. 535 (1942), Zablocki v. Redhail, 434 U.S. 374 (1978), even when those families do not conform to traditional expectations, Moore v. City of East Cleveland, 431 U.S. 494 (1977), Loving v. Virginia, 388 U.S. 1 (1967). The government may not favor =20« ener em we one family style over another by "forcing all to live in certain narrowly defined family patterns." Moore v. City of East Cleveland, 431 U.S. at 506; accord, Stan- ley v. Illinois, 405 U.S. at 651-652. If a mother exercises her constitu- tional right to have and raise a family as a single parent, she is permanently foreclosed from the opportunity for mili- tary service. The government may not cut off employment opportunities even tempor- arily on the basis of choice of family life style. A school board could not re- quire extended maternity leave, thereby curtailing a teacher's opportunity to work if she chose, because the state can- not "penalize the pregnant teacher for deciding to bear a child." Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 640 (1974). The lower courts have applied the same reasoning to cases involving other family rights. Dike v. School RT x Board of Orange County, Florida, 650 F.2d 783 (5th Cir. 1981) (circuit court re- versed dismissal of case of school tea- cher who was not permitted to breastfeed her child on school property during the school day); Drake v. Covington Board of Education, 371 F.Supp. 974 (M.D. Ala. 1974) (three-judge court) (dismissal of unmarried pregnant schoolteacher held unconstitutional); Andrews v. Drew Muni- cipal Separate School District, 507 F.2d 611 (5th Cir. 1975), cert. dismissed as improvidently granted, 425 U.S. 559 (1976) (school district rule barring employment of unwed parents held unconstitutional). A fortiori, the government's perma- nent denial to single mothers of the op- portunity for military service violates the Constitution. Single mothers are forced to make a Hobson's choice between giving up their fundamental right to raise their children and permanently fore- -22- going an opportunity which includes a ca- reer, training, travel, veterans’ bene- fits, and the honor and satisfaction of serving one's country. Because respondents’ regulations significantly infringe on petitioners’ fundamental rights, they are invalid un- der the Due Process Clause unless they are closely tailored to effectuate the military's interest in deployability. Zablocki v. Redhail, 434 U.S. at 388; Moore v. City of East Cleveland, 431 U.S. at 499-500. The categorical exclusion of single parents is not a policy closely tailored - indeed, is not tailored at all - to promote these interests. A constitutionally acceptable alter- native to respondents’ present regula- tions would be individualized screening of single parents through the enlistment process. The Army and Air Force already screen and test each applicant to deter- «fee mine his or her physical condition, men- tal ability and aptitude, educational background, stability, and character. The armed services should be required to determine for each single mother who ap- plies whether she will be able to meet her military responsibilities, based on the needs of the service? and the moth- er's plans for the child's care while she is in the military. The District Court, citing the example of petitioner Thelma Barnes (discussed supra, at 13), termed her the "most dramatic single illustra- tion" offered which "lends support to plaintiff's argument that, at the least, 10. Deployment lead-times vary drastic- ally among the services; for example, the Army Reserve gives female soldiers at least 14 days’ warning even in the event of a worst-case war, Defendants’ Third Supplemental Response to Plaintiffs' Third Set of Interrogatories and First Request for Production of Documents, re- produced at Joint Appendix 0828-0830, filed with the U.S. Court of Appeals for the Second Circuit. -34- single parent applicants should be re- viewed on an individual basis." Mack v. Rumsfeld, 609 F.Supp. at 1569. (Emphasis added). While it may be simpler for the mil- itary to employ the overbroad exclusion from enlistment of all single parents for the sake of administrative convenience, this Court has clearly found that such a goal is "insufficient to make valid what otherwise is a violation of due process of law,'' Cleveland Board of Education v. LaFleur, 414 U.S. at 647. The constitu- tion "requires the [government] to employ alternative administrative means, which do not so broadly infringe upon basic constitutional liberty, in support of their legitimate goals."' Id. Accord, Frontiero v. Richardson, 41l U.S. 677 (2973). The military context of this case oe does not alter this requirement: when a fundamental right is involved, a military regulation which burdens the exercise of that right will be upheld only if it is the necessary or least restrictive way to promote a compelling governmental inter- est. Beller v. Middendorf, 632 F.2d 788, 807 (9th Cir., 1980), reh. denied, 647 F.2d 80 (9th Cir., 1980), cert. denied, 454 U.S. 855 (1981). This Court has ex- plicitly held that a lower standard of review should not be applied to constitu- tional claims merely because they arise in a military context. Rostker v. Gold- berg, 453 U.S. 57, 69 (1981) and 453 U.S. at 87, n.3 (Marshall, J., dissenting). The First Amendment refinement of the standard of review adopted by the major- ity in Goldman v. Weinberger, 54 U.S.L.W. 4298 (March 25, 1986), does not extend to the substantive guarantee of due process at issue in this case. However, evenif a low- = ered standard of review were to be ap- plied to petitioners’ family right claim, petitioners would prevail because, as the U.S. General Accounting Office found, the respondents do not have data to justify their categorical exclusion of single mothers from enlistment, see discussion at 12 and n.5, supra. II. PETITIONERS' FAMILY RIGHT CLAIM IS ENTITLED TO A REVIEW ON THE MERITS The District Court made no finding whatsoever as to any of the factual or legal arguments presented by petitioners in support of their family right claim. Rather, the court rejected that claim outright, stating in one sentence that petitioners have no constitutional right to join the military. Mack v. Rumsfeld, 609 F.Supp. at 1564. The Second Circuit affirmed the judgment below for "sub- stantially the same reasons." Thus, pe- titioners' constitutional claim about a policy which deeply affects their lives and the lives of thousands of other Amer- icans has received no review at all from any court. There is no justification for this failure to review. The military do not have carte blanche to interfere with fundamental constitutional rights with- out scrutiny from the courts. Goldman v. Weinberger, 54 U.S.L.W. 4298 (March 25, 1986). That petitioners have no right to join the military is irrelevant; peti- tioners make no such claim. Rather, the proper inquiry in this case is the extenc to which respondents' regulations burden the exercise of petitioners’ fundamental right to have and raise a family. If the single parent exclusionary policies "sig- nificantly interfere" with petitioners' constitutionally protected right to raise «28- their children and to choose their fam- ily life style, the policies cannot be upheld unless they are closely tailored to effectuate compelling governmental in- terests. Zablocki v. Redhail, 434 U.S. at 388. This case involves broad sociopoli- tical judgments which implicate the basic constitutional right to have and raise a family. The challenged regula- tions do not reflect the technical judg- ment of military professionals about in- ternal governance matters such as the ad- ministration of military bases, Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961), or the need for uni- form dress codes, Goldman v. Weinberger, 54 U.S.L.W. 4298 (March 25, 1986). Peti- tioners' claims do not involve the extent to which individual autonomy must be tol- erated "within the military community." _— Goldman v. Weinberger, 54 U.S.L.W. at 4299, citing Parker v. Levy, 417 U.S. 733, 751 (1974). Rather, this case raises the threshold question of who may join that community. The decision to categorically exclude an entire segment of the population from military service is political, not technical. 21 Were the military to categorically exclude blacks or Jews from enlistment, the courts would not simply defer to their judgment. Pe- titioners are entitled to a judicial re- view of their claim. 11. Deposition of Robert Burns Pirie, Jr., Assistant Secretary of Defense, 1979- 1981, reproduced at Joint Appendix 0083, filed with the U.S. Court of Appeals for the Second Circuit. -30- eileen iain CONCLUSION Wherefore, petitioners pray that this Court issue a writ of certiorari to the Second Court of Appeals to review its judgment. Dated: April 28, 1986 New York, New York Respectfully submitted, (Pipe i PHYLL 16/GELMAN- Suite 11-A 211 West 106th Street New York, New York 10025 (212) 749-5736 Of Counsel To GREATER UPSTATE LAW PROJECT By: STEVEN BROWN - Director 101 Powers Building Rochester, New York 14614 (716) 454-6500 and NATIONAL CENTER ON WOMEN & FAMILY LAW By: LAURIE WOODS - Director 799 Broadway, Room 402 New York, New York 10003 (212) 674-8200 ihe JAMES I. MEYERSON Counsel of Record 351 Broadway, 3rd Floor New York, New York 10013 (212) 226-3310 Of Counsel To: GREATER UPSTATE LAW PROJECT By STEVEN BROWN - Director 101 Powers Building Rochester, New York 14614 (716) 454-6500 ATTORNEYS FOR PETITIONERS Respectfully submitted, [oviece Crem hh lp BRUCE CAMPBELL - “egal Dir- ector American Civil Liberties Union of Ohio Foundation 360 South Third Street Suite #150 Columbus, Ohio 43215 (614) 228-8952 ATTORNEY FOR PETITIONER PLAINTIFF-INTERVENOR LEWIS On the Petition MARGARET KLAW, ESQ. Law Offices of Phyllis Gelman, Esq. Suite l11-A 211 West 106th Street New York, New York 10025 (212) 749-5736 ot4. INDEX TO APPENDIX ITEM PAGE 1. Opinion and Order of the District Court Dated eS ee ee eee A2-A56 2. Per Curiam Opinion of the Panel of the United States Court of Appeals for the Second Circuit....... A57-A60 3. Order Amending Opinon Dated March 5, 1986...... A61-A63 aA) = No. CIV 76-22C UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK CARLENE MACK, Individually and on behalf of all persons similarly situated; PATRICIA RAMSURE; QUEEN ESTHER TAYLOR; THELMA BARNES; MAXINE McNEILL; TRINA LEWIS, Plaintiffs, foe DONALD RUMSFELD, Individually and in his official capacity as Secretary of Defense; MARTIN R. HOFFMANN, Individually and in his official capacity as Secretary of the United States Army, Defendants. APPEARANCES : NATIONAL CENTER ON WOMEN & FAMILY LAW (PHYLLIS GELMAN, ESQ., of Counsel), New York, New York, GREATER UPSTATE LAW PROJECT (JAMES I. MEYER- SON, ESQ., of Counsel), New York, New York, -and- AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUN- DATION (BRUCE A. CAMPBELL, ESQ., of Coun- sel), Columbus, Ohio, for Plaintiffs. -A2- UNITED STATES ARMY, Office of the Judge Advocate General, Litigation Division (LT. COLONEL JOYCE PETERS, ESQ., of Counsel), Washington, D.C., UNITED STATES AIR FORCE, Office of the Judge Advocate General, General Litigation (LT. COLONEL GUY STERNAL, ESQ., of Counsel), Washington, D.C., -and- SALVATORE R. MARTOCHE, ESQ., United States Attorney (KATHLEEN MEHLTRETTER, ESQ., Assis- tant United States Attorney, of Counsel), Buffalo, New York, for Defendants. -A3~ Plaintiffs challenge the policy of the Army, Army Reserve, Air Force, and Air Force Reserve which prohibits the enlist- ment, with rare exceptions, of single par- ents with children under 18 years old. They contend that it violates their rights under the fifth amendment. This case was’ certi- fied as a class action on June 20, 1977. The named plaintiffs represent the class of women applicants who have been or are being denied admittance into the Army or Air Force because of Army or Air Force policies that deny admittance to a single parent with a child under 18 years of age. Defendants originally moved for sum- mary judgment in June of 1976. This court denied that motion on February 10, 1978, with leave to renew after additional discov- ery had taken place. Defendants renewed their motion in June of 1983. Plaintiffs —-A4- week atey deteeqwtill have filed a cross motion for summary judg- ment. Plaintiffs attack the constitution- ality of the regulations expressing the single parent exclusion policy (see Appen- dix). Plaintiffs list three counts in their complaint. Plaintiffs' first count charges that the Army and Air Force unjustifiably discriminate against unmarried parents of children under the age of 18. As their sec- ond count, plaintiffs allege that defen- dants' policies penalize plaintiffs for exercising their freedom of choice as to family life and that those policies erect an irrebutable presumption as to the fitness of Single parents for military service. Plain- tiffs claim that these policies discriminate against women as their third count. (See Amended and Supplemental Complaint, March =A Sm a2, I9TE} Both plaintiffs and defendants have filed extensive exhibits with the court in support of their motions for summary judg- ment and in oppositionto the motions against them. Plaintiffs have submitted, among other things, depositions of their experts, portions of military studies and records, and affidavits from named plaintiffs and others. Defendants have offered policy statements, military studies, depositions of military personnel and copies of the regula- tions at issue as they have been amended over the years. For the reasons that follow, summary judgment is granted to defendants and the complaint is dismissed. Preliminarily, defendants argue that this case is nonjusticiable anc,or non- reviewable. It appears to the court that these terms are used interchangeably in this context. Defendants also raised this point in their original motion for summary judg- ment, and the court held that the case was justiciable in its order of February 10, 1978. At that time, the court relied upon Crawford v. Cushman, 531 F.2d 1114, 1121 (2d Cir. 1976), in which it was held that sub- stantive claims of constitutional dimension against the military are reviewable by the courts. Plaintiffs in this case have raised substantive claims of violations of equal protection and due process as guaranteed by the fifth amendment to the United States Constitution. Defendants point out that, since the time of this court's 1978 order, several -AT7- courts of appeals have adopted the approach established by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), in testing the reviewability of military deci- sions. Under this test, a court should examine four factors: 1) The strength of the plaintiff's claim; 2) potential harm to plaintiff if review is denied; 3) type and degree of anticipated interference with the military; and 4) the extent to which mili- tary expertise is involved. Using this test, two courts of appeals have found the same policies at issue in this case not proper for review. See West v. Brown, 558 F.2d 757 (5th Cir. 1977), cert. denied, 435 U.S. 126, and Lindenau v. Alexander, 663 F.2d 68 (10th Cir. 1981). The Third Circuit, however, has rejected the Mindes test and found the’ same -AS- ke ll tte Mitte den ns policies challenged here to be reviewable. Dillard v. Brown, 652 F.2d 316 (1981). Once a claim falls within these parameters [a constitutional or statutory violation], a court should review the claim on the merits. Even if such a_ consti- tuticnal challenge appears weak or frivolous, jurisprudentially that claim should be rejected on the merits, rather than deemed to be non-justiciable by a fed- eral court. We prefer an analy- sis which does not mingle con- cepts of justiciability with those affecting the merits of the claim to the extent that Mindes requires. Id. at 323. Crawford is still the law of this circuit (see Katcoff v. Marsh, 755 F.2d 223, 233 (2d Cir. 1985)). Plaintiffs have raised constitu- tional equal protection claims and due pro- cess claims, anad under Crawford and the reasoning of Dillard these claims are justi- —-A9Q- ciable and reviewable. The Supreme Court's decision in Rostker v. Goldberg, 453 U.S. 57 (1981), does not remove this case from the realm of reviewability. That case emphasized the deference due Congressional decisions invol- ving the military and national defense. The court pointed to Congress's broad constitu- tional power to raise and support armies, citing Art. - §8 of the United States Constitution. It stated that courts have an ultimate responsibility to decide constitu- tional questions, adding, "deference does not mean abdication." Id. at 67 and 70. That courts have the power and the duty to review military conduct when chal- lenged as violative of the Bill of Rights is clear. The standard of review, however, is far from clear. The military urges that, at -A10- Dt led em oe septal ee robe i OWS hit ERD en tet bd et most, this court may simply glance at the challenged policies to determine if there is a "rational nexus" between the exclusion of single parents and military readiness. Ina recent case from the Eastern District of New York involving a naval reserve policy prohi- biting the commissioning of pregnant cadets, the court interpreted Rostker as requiring mere rationality to withstand a claim of gender discrimination under the fifth amend- ment. Cobb v. United States Merchant Marine Academy, 592 F. Supp. 640, 643-44 (E.D.N.Y. 1984). In Rostker, the Court apparently declined to adopt such a test: We do not think that the sub- stantive guarantee of due pro- cess or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Gov- ernment. Announced degrees of "deference" to legislative judg- ments, just as levels of "scru- tiny" which this Court announces that it applies to particuiar classifications made by a legis- lative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, act- ing under an explicit constitu- tional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the author- ity so conferred. Simply label- ing the legislative decision "military" on the one hand or "gender-based" on the other does net automatically guide a court to the correct constitutional result. Rostker at 69-70. The Second Circuit has provided an interpretation of the Rostker decision in a Slightly different context. In Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985), two taxpayers sought an injunction against Con- gress's continuation of the Army's military chaplain program, claiming that government -A12- n financing of the program violated the estab- lishment clause of the first amendment. Citing Rostker, the court said: The line where military con- trol requires that enjoyment of civilian rights be regulated or restricted may sometimes be dif- ficult to define. But caution dictates that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and neces- sary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its consti- tutionality should be resolved as a matter of judicial comity in favor of deference to the military's exercise of its dis- cretion. Katcoff at 234. This court is well aware that the policies under attack here were not promul- gated by Congressional act, but by military regulation. Yet the Supreme Court has held that military policies made under an explicit grant of Congressional authority are entitled to deference. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 890-91, 894 (1961). Here, the military defendants set enlistment require- ments through the authority of Congress, which gave the Secretaries of the Army and Air Force the power to promulgate enlistment standards. 10 G.8.¢. §§505, 510(b), 3012(g), 8012(f). Goldman v. Secretary of Defense, 734 F.2d 1531, 1538 (D.C. Cir. 1984). In light of the above discussion of the standard of review, this case is amen- able to summary judgment. Both parties have engaged in extensive discovery and neither requests additional time. In fact, both ask the court to decide the case on summary ~A14- judgment, because a trial will add little, if anything, to the record. Plaintiffs claim the exclusionary policy violates their fundamental constitu- tional right to freedom of choice in family matters and creates an irrebutable presump- tion as to the fitness of single parents for military service, all in violation of the due process clause of the fifth amendment. The regulations at issue here, however, do not interfere with plaintiffs' constitu- tional right to have, or not to have, a fam- ily. They simply prohibit plaintiffs, as single parents, from enlisting in the Army or Air Force. There is no constitutional right t> join the military. Lindenau_ vv. Alexander, 663 F.2d at 72-73, and Crawford v. Cushman, 531 F.2d at 1125. As their first and third counts, -A15- plaintiffs claim the single parent exclusion policies discriminate against them as single parents and as women, in violation of the equal protection clause of the fifth amend- ment. Under the Second Circuit interpreta- tion in Katcoff, the exclusion policies shall be treated as presumptively valid and constitutional if they are reasonably rele- vant and necessary to further national defense. Defendants maintain that these poli- cies are relevant and necessary to. the critical concerns of military readiness and mobility. They offer the depositions of several military leaders as well as military studies based on the results of surveys of commanders, supervisors, and married couples with children, both of whom are in the mili- -~AiG= ee en re ane PO al A CAN IN Pain Cas eed i tary, or single parents. For instance, Major General H. Nor- man Schwarzkopf, Director for Military Per- sonnel Management and Acting Assistant Deputy Chief of Staff for Personnel at the Pentagon, was deposed by defendants in November of 1982. He stated that a key con- cern of the military is the ability to deploy forces in the United States overseas as rapidly as _ possible. Single parents, according to the General, pose a threat to the Army's ability to mobilize quickly. He admitted that a detailed analysis of the numbers of single parents who might not be prepared to deploy has not been done, since it is "not a question of numbers," but of the "“war-fighting ca ability of the Army." (Item 146, p. 39) General Schwarzkopf served as the -A17- Assistant Division Commander of the Eighth Infantry Division and Community Commander of Mainz Military Command in Germany from 1970 to 1972. He was in charge of personnel man- agement for 12,000 people inaU.S. Army community. He estimated that approximately 100 single parents lived in the community and said that some were deficient in perfor- mance. While he had no exact numbers, he said that the percentage of single parents who failed to report for alerts was "dramat- icaily different" from the percentage of other soldiers. General Schwartzkopf recalled that division commanders repeatedly mentioned the availability of single parents as a matter of concern (Item 146, _ pp. 15-16). Major General Kenneth LeRoy Peek, Director of Personnel Plans for the Air -A18- Force, served as Vice Commander, then as Commander, of the Air Force Manpower and Personnel Center at Randolph Air Force Base from March of 1979 until July of 1982. In that position, he encountered a "significant amount of concern" on the part of local com- manders, supervisors and first sergeants about the difficulties some single parents had in meeting duty requirements. (Item 147, pp.9-11). Other military leaders pointed to the serious problems single parents encounter during basic and technical train- ing. (See Deposition of Air Force Lt. General B. L. Davis, Item 49, pp.i11 and 22, and Deposition of Air Force Lt. Colonel Donald Post, Item 50, pp.13-15). Defendants also submitted military studies which in part dealt with single par- -A19- ents. For example, a report by the Women in the Army Study Group was prepared in Decem- ber 1976 (Defendants' Exh. kK). Comments solicited from major army commands formed the basis of the study. They were requested to determine whether single parents, both male and female, had a bad effect on unit readiness. Some units reported no probiems with single parents when there were only afew involved, but noted serious problems when significant numbers of single parents were in a unit. Specifically, single parents did not have the flexibility to work irregular hours or different work schedules. They also were said to need considerable advance warning before extended lieave (Exh. K, Chap. 7, pp.8-9). From October 1980 through April -A20- SFL OV ink RL Om 1981, the Air Force studied the readiness and availability of single parents (Report of the Availability of Single Member Spon- sors and Military Couples with Dependents, Defendants' Exh. G.). Military leaders, single parents, and military couples with children were interviewed in 27 Air Force bases. The focus of the survey was AF 35-59, an Air Force regulation dealing with provisions for child care. The results of the study showed that commanders strongly believed that single parents and military couples with children were not prepared to deploy on short notice. Younger, less experienced Single parents and military couples with children tended to view themselves as less available and the chances of being called upon to deploy as less likely than did more -A21- experienced single parents or military couples. The report concluded that the cur- rent stringent waiver policies for enlist- ment of single parents and military couples with children should be continued. It recommended that the policy of discharging those who become Single parents and are not available be enforced (Defendants' Exh. G., pp.4-5). Another one of the many Air Force studies also based on surveys, found that many commanders believed that single parents lost more time than military couples with children or Air Force personnel with civil- ian spouses (see Study by Air Force Manpower and Personnel Center, January 1982, Defen- dants' Exh. H, p. 24). Plaintiffs maintain that defendants' ~A22- policies of retaining enlisted personnel who become single parents. are fundamentally inconsistent with their position. They argue that if defendants were truly con- cerned about single parents disrupting mobi- lization and readiness, no amount of invest- ment in training or gain in maturity and experience would justify retaining those who become single parents. (Item 169, pp.103-04). What plaintiffs fail to take into account is that single parents whose perfor- mance deteriorates can be either discharged or barred from reenlistment (see Item 146, pp.39-41, Deposition of Army Major General Schwarzkopf). In fact, The U.S. General Accounting Office [GAO] Report to the Secre- tary of the Army dated September 13, 1982, recommended that the Army forego discharging -A23- all those who become _ sole and in-service parents or assigning them to positions coded as "nondeployable" until further study. As noted earlier, the Air Force report on the availability of single parents (Defendants' Exh. G) recommended enforcement of the policy of discharging those who are not consistently available as well as recom- mending maintaining stringent restrictions on the enlistment of single parents. Major General Schwarzkopf pointed out that those who become single parents while serving are not automatically dis- charged because they, unlike new enlistees, represent a valuable resource to the mili- tary due to their training and experience (Item 146, pp.39-41). Certainly, defendants' refusal to automatically discharge soldiers and Air -A24- Force personnel who become single parents does not indicate that barring the enlist- ment of single parents on the basis of a need to sustain maximum readiness and mobil- ity is pretextual. The military has no investment in those who seek enlistment, nor any commitment to them. Those who have been in the service have training and experience and can be discharged or reassigned if their performance declines. Plaintiffs also urge that the repeated linkage of single parenthood with women's issues reveals that the policies were motivated in part by a discriminatory purpose. A perusal of defendants' exhibits shows that single parenthood is frequently associated with women's issues. For example, defendants' Exhibit H, a report by -A25- the Air Force Manpower and Personnel Center, utilized written surveys. The first portion of these surveys asked commanders to evaluate the performance of female enlistees and of male enlistees. Another segment of the survey asked questions about the perfor- mances of single parents and military couples with children. A latter segment inquired about pregnancy (see Exh. H, Appen- Gix B). Single parenthood was also addressed by the Army as a women's issue. Defendants' Exhibit I, an opinion survey on the role of women in the Army, links pregnancy and sole parenthood. Exhibit K, although explicitly referring to the sole parent issue as apply- ing to both men and women (Chap. 7, p.8) was prepared by the Woman in the Army Study Group, which viewed it in part as a issue -A26- related to pregnancy (p.1-A-6). A 1981 Department of Defense Report, Background Review: Women in the Military, stated, "Sole parents, whose numbers are increasing in the military, are frequently thought to be a female issue." (Defendants' Exh. 22 at 7.) Plaintiffs' expert, Kathleen Carpenter, who was Deputy Assistant Secre- tary of Defense of Equal Opportunity in the Office of Secretary of Defense during the Carter administration, affirmed this. She testified at a deposition that the single parents issue was considered to be a woman's issue (Plaintiffs' Exh. 7, p. 23). Plain- tiffs' expert, Kurt Lang, a professor of Sociology at State University of New York at Stoney Brook, notes that single parenthood continues to be associated with illegitimacy and a dissolute lifestyle (Plaintiffs' Exh. -A27- 32; @. B}.« While the plaintiffs have indeed demonstrated a frequent linkage of single parenthood with pregnancy and women's’ roles in the military, this alone does not make the regulations unconstitutional. Plain- tiffs have not shown that the regulations exist in part "because of" and not just "in spite of" their adverse effects on women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). (Defen- dants have agreed, for the purposes of sum- mary judgment, to assume the challenged reg- ulations, while facially neutral, have a disparate impact on women. ) As defendants point out, the mili- tary has placed restrictions on the peace- time enlistment of people with dependents since 1841, 107 years before women were -A28- admitted into the armed forces. These regu- lations changed in content and restrictive- ness over the years but usually were in force, in one form or another, throughout this period (see Item 158, Appendix A, and Defendants' Exhibit A). The military's con- cern about enlisting those with dependents has long been evident and, historically at least, was unrelated to gender. Furthermore, the military places quotas on the number of women allowed to enlist. Such quotas could be used to directly reduce the number of women enlist- ing without resort to a single parent sub- terfuge. Of course, this in itself does not demonstrate that defendants were not employ- ing a facially neutral statute for a discri- minatory purpose, but it lends support to defendants' position. -A29- Even if plaintiffs could make a showing of discriminatory purpose, more would be required. Plaintiffs claim defendants have not shown that the regulations are substantially related to important governmental objec- tives, the test in gender equal protection cases (Item 169, Plaintiff's Brief at p.96, citing Craig v. Boren, 429 U.S. 190, 197 (1976)). However, as stated above, in light of Rostker and the Second Circuit's inter- pretation in Katcoff, the question in the military context is simply whether the chal- lenged regulations are reasonably relevant and necessary to the national defense. Plaintiffs offer depositions and affidavits indicating that defendants failed to engage in any detailed statistical analy- sis to determine the actual quality of work -A30- = Re mee by single parents in comparison to other personnel. Plaintiffs claim the potential effect of single parents on readiness and the ability to deploy quickly in the event of an emergency has never accurately been gauged. The policies challenged here, they say, are not founded on social science studies but the intuition of military lead- ers (Item 169, p. 17). Plaintiffs rely primarily on the critique by their expert, Professor Lang, to highlight the deficiencies in military studies of the single parent issue and to show the absence of evidentiary validation for these policies. Professor Lang concluded that mili- tary studies do provide evidence that some single parent service members have diffi- culty meeting their peacetime duties and “A3i~ that some of these problems are certainly related to inadequate child care. Yet, he also believed that the studies show that the large majority of single parents are per- forming at least satisfactorily (Plaintiffs' Exum. 12, p.1). One of Professor Lang's main conten- tions is that studies based on the opinions of military commanders with responsibility for national security tend to exaggerate the magnitude of the problem. (Plaintiffs' Exh. 12, p.9). He notes that many command cen- ters surveyed by the Army in 1976 (Defen- dants' Exh. T) reported only minor problems with single parents, which could be dealt with on an individual basis. (Plaintiffs' Exh. R, p. 17-19). In fact, Professor Lang believes that when the resuits of the = sur- veys are tabulated, they show that single -A32- parenthood "does not result in an excessive loss of time or create major problems that cannot be handled in the framework of regu- lations." (Id. at 19.) However, single parents need not cause an excessive loss of time or create major problems to make the regulations excluding them reasonably relevant and nec- essary to the national defense. Professor Lang also pointed out that interview or survey questions are _ broad- based, biased in that they link single par- enthood to women and sometimes phrase _ the issue as a "problem," and rely on "self- reports," by single parents, which he claims are of doubtful validity (Exh. 12). Professor Lang's concerns are echoed by Robert Pirie, Jr., Director of the Naval Strategy Program at the Center for Naval -A33- Analyses. From 1979 to 1981, he was’ the Assistant Secretary of Defense for Manpower Reserve Affairs and Logistics. He noted that there are analyticai studies available to obtain objective information about the magnitude of the single parent problem. (Plaintiffs point out that the military cus- tomarily relies on detailed statistical ana- lysis when examining issues relating to enlistment. ) Mr. Pirie indicated that he would prefer to "utilize both statistical analyses and reports of commanders, as have been relied on in the past, to formulate a Single parent policy. In his experience, analytical studies frequently contradict the intuition of military leadership. Mr. Pirie did not know whether this would be the case with the single parent policies (Plaintiffs' Exh. 5, pp. 38-39). -A34- Perhaps the strongest support for plaintiffs on this issue comes from defen- dants. In 1982, the GAO prepared a report to the Secretary of the Army entitled "Army Needs Better Data to Develop Policies for Sole and Inservice Parents" (Defendants' Exh. N). The report was based on question- naires sent to first-line supervisors at Fort Bragg and Army installations in Europe. Professor Lang pointed out that studies based on evaluations by direct supervisors were more valid than those based on inter- views with commanders (Plaintiffs' Exh. a2, D.2i). Based on these responses, the GAO concluded that sole and in-service parents attended and performed at least satisfact- orily and would most likely be available in the event of war (Defendants' Exh. N, p.4). -A35- The study recommended that the Army forego discharging all who become single parents or a military couple with children until objec- tive and scientific data is obtained. It also recommended that data be developed to "reconsider the reasonableness of restrict- ing enlistment of sole and in-service par- ents." (Defendants' Exh. N, p. 11.) The court agrees that better, more reliable techniques for assessing the day- to-day performance and the likely availabil- ity of single parents in time of national crisis should be implemented, particularly in light of the GAO report to the Secretary of the Army in 1982 (Defendants' Exh. N). However, the Rostker decision and the inter- pretations provided by the D.C. Circuit in Goldman v. Secretary, 734 F.2d 1531, and by the Second Circuit in Katcoff place a mini- -A36- mal burden on the military in defending its policies against constitutional attack. The policies need only be "reasonably relevant and necessary to furtherance of our national defense," and "any doubt as to its constitu- tionality should be resolved . . . in favor of deference to the military's exercise of its discretion." Katcoff at 234. Defendants have provided the court with evidence, as discussed above, that there are problems with some single parents in flexibility with duty schedules and reporting for duty on short notice. These problems create concern on the part of many military leaders that single parents will not be available in the event of an emer- gency. Also, Air Force commanders discussed the burdens of single parents during basic and technical training. -A3i- The court has been presented with a challenge to the constitutionality of single parent enlistment restrictions only, not the regulations providing for the ouster or reassignment of trained personnel who become single or in-service parents after enlist- ment. Based on defendants' evidence, I can- not conclude that a policy barring single parents from military service at the enlist- ment level is not reasonably relevant to and necessary for the furtherance of the national defense. laintiffs point out that the mili- tary provides child care facilities to per- sonnel who are already enlisted (Exhs. 43 and 44). They note that these services could be expanded. Strict enforcement, they say, of regulations requiring discharge for military parents who are performing poorly -A38- and regulations requiring the maintenance of careful dependent care planning would be an alternative to a blanket prohibition against single parent enlistment. See Katcoff at 235. Plaintiffs also suggest that prohi- biting single parents from bringing their children to basic or technical training would be a reasonable alternative. Plain- tiffs even urge that current regulations limiting the locations to which a_e service member may bring children be extended to cover single parents, with perhaps more rigid limitations on single than married parents (Plaintiffs' Brief, Item 169, pp.128-29). Again, however, plaintiffs skim over the difference between those who have already undergone training and have experi- -A39- ence and those who are attempting to enlist. As discussed earlier, simply because the military provides child care services to trained personnel does not mean it is required to provide such services for those who are seeking to enlist. A common theme from the evidence submitted by defendants is a concern with the growing number of single parents and military couples with children and a belief that the greater the number, the greater the potential that readiness would be undercut. Under these circum- stances, admitting those who ure already Single parents would increase the burden. Plaintiffs have not shown that set- ting a lower age limit for depencents, rather than age 18, would significantly alleviate these problems. Nor does’ setting the age limit at the level at which commer- -A40- cial airlines permit minors to fly unaccom- panied present a practical solution. The most dramatic single illustra- tion offered by plaintiffs supporting indi- vidual waivers involves named plaintiff Thelma Barnes. Ms. Barnes and her. sister enlisted in the Army Reserves on the same day. Each had a child, but only the’ sister was married. Although Ms. Barnes trans- ferred guardianship of her child to her mother, her enlistment was voided under the regulations then in force. Her sister, although she was married, relied on their mother to care for her child, as Ms. Barnes would have. The sister remained in the Reserves was promoted to sergeant (see Exh. 17). This lends support to plaintiffs' argument that, at the least, single parent applicants should be reviewed on an indi- -A41- vidual basis. It should be noted that both the Army and the Air Force had experimented with more liberal restrictions on the enlistment of single parents, permitting waivers for single parents if the application was "meri- tous" or if they could provide a detailed dependent care plan. Both the Army and Air Force had liberalized policies for a period in the early 1970s. The Air Force made another attempt from 1978-81. Both branches returned to the stringent regulations, such as those which barred the enlistment of the named plaintiffs, because the liberalized enlistment requirements were perceived to impair the readiness of the military and create problems in training. (see pp.14-24, Item 158). Finally, plaintiffs urge the court -A42- to consider differences between the Army and Air Force and between the active branches and the reserves. Although the Army and Air Force do have differences in their func- tions and needs, each has provided evidence, in the form of depositions and studies, that single parents pose some threat to readiness and mobility. Plaintiffs' point as to the reserves has more appeal at first glance. Reservists live in civilian communities and are called upon only occasionally to report for duty. The purpose of the reserves is to be active in the event of war. Major General Paul S. Williams, Army Director of the Office of the Deputy Chief of Staff, cautioned that, although less time is required of the reserves during peacetime, there may be a need for sudden mobilization (Item Si, -A43- pp.34-36). Robert Pirie, Jr., described the "total force concept," in which the active Army (Air Force) and its reserves are viewed as one force. He stated that, in the event of an emergency, the reserves would be required to deploy in accordance with sched- ules which would be just as stringent as those of the active Army or Air Force (Plaintiffs' Exh. 5, pp.57-59). In light of this, regulations proscribing single parent enlistment in the active forces would be equally valid for the reserves. Plaintiffs' motion for summary judg- ment is denied. Defendants' motion is granted, and the complaint is dismissed. So ordered. /s/_ John T. Curtin United States District Judge Dated: June 5, 1985 -A44- APPENDIX A. ARMY AND RESERVES Army Regulation AR 601-210 Effective April 1, 1975, and continued July 28, 1976 Same as Army Reserve Regulation AR 140-111, Effective May 1, 1975 RULE F--DEPENDENTS IF APPLICANT IS Without Prior Service (2) (3) (4) An applicant without a spouse and with one or more dependents under 18 years of age is disqualified, except as provided in (3) and (4) below. No waiver is authorized. A divorced applicant may be processed for enlistment when the child or children have been placed in the custody of the other parent by court order and the applicant is not required to provide child support. No waiver is required. A divorced applicant may be processed for dependency waiver when the child or -A45- children have been placed in the custody of the other parent by court order and the applicant is required to provide child support. Army Regulation AR 601-210 Effective November 1, 1980, as amended December 1, 1980 F--DEPENDENTS With or without prior service i An applicant "without a spouse" -- a. who has "dependent(s)” under 18 years of age who has’ been placed in the custody of the other parent or another adult by court order, or as provided by state law and the applicant is (1) not required to pro- vide child support or required by court order to provide child support for 2 or less "depen- dent(s)."" (2) required by court order to provide child support for three or more "depen- dent(s)." -A46- who under who in other parent or has "dependent (s)" 18 years of age has not been placed the custody of the another adult by court order or as provided by state law. Eligibility Status a. (1) Eligible (2) Not eligible; waiver requests considered. b. Not eligible; waiver requests not consid- ered. Army Reserve Regulation AF i40-111 Effective February 1, RULE F--DEPENDENTS IF APPLICANT IS 1979 Without Prior Service (2) An applicant without a spouse and with one or more dependents age of except and (4) is authorized. cant without under 18 years is disqualified, as provided in (3) below. No waiver An appli- a spouse is defined as an applicant who is unmarried, -A47- is divorced, (3) (4) is legally separated, spouse is deceased, spouse has deserted applicant, spouse is incarcerated, spouse is not residing per- manently with applicant, or applicant has sole custody of the dependents. An applicant without a spouse may be processed for enlistment when the child or children have been placed in thé custody of the other parent of the child or children by court order and the applicant is not required to provide child support. No waiver is required. An applicant without a spouse, required to pay support for no more than two dependents under 18 years of age and where said dependents have been placed in the custody of the other parent of the child or children by court order, may be processed for enlistment without a waiver. If there are more than two dependents, a waiver is required prior to enlistment. -A48- Army and Army Reserves combined Regulation AR 601-210 Effective October 1, 1982, through date of decision 2. An applicant "without a spouse"-- a. Who has "dependent (s)" under 18 years of age who has (have) been placed in the custody of the other parent or another adult by court order or as provided by State law and the appli- cant is-- (1) Not required to provide child support or required by court order tc provide child support for two or less "depen- dents." (2) Required by court order to provide support for three or more "depen- dents." (3) Servicemembers who have surrendered custody of dependents under this rule will certify at the time of enlistment that it is their intent that the custody agreement will survive the term for which enlisting; servicemembers who -A49- enlist subject to this provision and who regain custody of their chil- dren during the term of enlistment will be pro- cessed for involuntary separation for fraudu- lent enlistment unless they can show that the regaining of such cus- tody is not contrary to the intent stated upon enlistment. b. Who has "dependent (s) under 18 years of age who has (have) not been placed in the custody of the other parent or another adult by court order or as provided by State law. Eligibility (1) Eligible. (2) Not eligible; waiver requests considered. (3) Eligible; DA Form 3286-31R (Fig. 2-1) will be executed at the time of enlistment. DA Form 3286-31R will be locally reproduced on 8% x 11-inch paper. -A50- b. Not eligible; waiver requests not considered. -aSi~ B. AIR FORCE AND AIR FORCE RESERVES AFR-33-3 Effective March 31, 1975 Applicants are ineligible to enlist if one of the following conditions exists * * * 15. Applicants with one or more dependents under age 18 but without a spouse in house- hold (note 4.) (Not appli- cable for enlistment in the ROTC cr OTS programs. ) 4. See paragraph 1-1j for definition of dependent. Dependency waivers may be requested: a. When dependents have been placed by court order into the custody of some other person (irrespective of appli- cant's responsibility to provide child support payments), or b. For former Air Force members separated for pregnancy who apply for reentry within 1 year of date of separation. -AS2- AFR 33-3 Effective October 14, 1977 Applicants are ineligible to enlist when one exist 12. NOTES: of the following conditions Applicant with one or more dependents under age 18 but without a spouse in house- hold or with a common-law spouse (see notes 2 and 5). (Not applicable for enlist- ment in the Officer Train- ing School or Prior Service programs. ) 2. See paragraph 1-ih for definition of dependent. Dependency waivers may be requested: When dependents have been placed by court order into the custody of some other person (irrespective of applicant's responsibility to provide child support payments) or When dependents have _ been placed for an indefinite period of time in the phys- ical care, custody, and -A53- control of a person who has been authorized by the par- ent's notorized [sic] Cer- tificate of Child Care Ar- rangements to act on behalf of the dependent(s). The custody period involved will vary based on job assignment and will cover basic mili- tary training and technical training, if required. Ad- ditionally, it is recommen- ded that the dependent(s) not join the parent at ini- tial duty station until such a time as the parent has ad- justed to the job and mili- tary base environment and made full arrangements for child care. . No waiver is required if ap- plicant can prove permanent transfer of legal control to some other person through court order or adoption pro- ceedings, provided actual transfer of legal control over the child(ren) has oc- curred. Child(ren) must still be listed on enlist- ment documents and present status explained. Documents (court order or adoption pa- pers) must be reviewed by the recruiter and AFEES I NCO. An AF Form 3010, -A54- > Statement of Understanding (Dependency) must still be signed by the applicant. An applicant with minor children and a common-law spouse should be consid- ered to be enlistment eligible if both par- ties are bona fide domiciled in a State re- cognizing common-law marriage, at the time they enter into such relationship. Waivers for enlistment under this situation are processed to the Recruiting Service Squad- ron Commander for approval. ATCR 33-2 Effective August 31, 1982 (a) (b) In the case of an applicant having any minor dependents and NO SPOUSE IN THE HOUSEHOLD, waiver is auth- orized if care, custody, and con- trol of minor dependents have been assumed by another individual via court order. In addition, the ap- plicant must complete a handwrit- ten statement using ATC Form 1357, Dependent Care Statement regarding plans for post-enlistment care. Divorced or separated applicants must provide a plan should they be required to resume custody. Waivers may be considered only where custody of minor dependents has been transferred by court or- der to another person. -A55- Bonafide court orders are the only acceptable docu- ments that can be used to prove transfer of custody. Applicants must provide an original order (or copy) authenticated by a court official. . Evidence of custody trans- fer must show that it is unconditional and contain no conditions under which the applicant would resume custody during the initial term of service. . When an applicant claims or acknowledges to be the par- ent of an illegitimate child and no court order was or will be issued, a written agreement to pay child sup- port and (or) an affidavit from the custodial parent establishing unconditional custody of the child with parties other than the ap- plicant may be sufficient proof. Use of such docu- ments apply only where court orders were not is- sued. -A56- UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 2 No. 677—August Term, 1985 (Argued December 16, 1985 Decided January 29, 1986) Docket No. 85-6184 + CARLENE MACK, Individually and on behalf of all other persons similarly situated; SHIRLEY STUKES; PATRI- CIA RAMSURE; QUEEN ESTHER TAYLOR; THELMA BARNES; MAXINE MCNEILL; and TRINA LEWIS, In- tervenor, a ea Plaintiffs-Appellants, nl , DONALD RUMSFELD, Individually and in his official capacity as Secretary of Defense; MARTIN R. HOFF MAN, Individually and in his official capacity as Secretary of the United States Army; THOMAS C. REED, Individually and in his official capacity as Secretary of the United States Air Force, Defendants-Appellees. Before: TIMBERS, MESKILL and PRATT, Circuit Judges. -A5/7- Appeal from order of the United States District Court for the Western District of New York, Curtin, C.J., granting defendants’ motion for summary judgment and dismissing plaintiffs’ complaint. ot JAMES I. MEYERSON, New York City (of counsel to Greater Upsiate Law Project, Rochester, New York), Phyllis Gelman, Margaret Klaw, New York City (of coun- sel to Greater Upstate Law Project, Rochester, New York and National Cen- ter on Women & Family Law, New York City), for Plaintiffs-Appellants. Bruce Campbell, American Civil Liber- ties Union of Ohio Foundation, Colum- bus, Ohio, for Plaintiff-Appellant-Inter- venor Lewis. LINDA SILBERMAN, Civil Division, Depart- ment of Justice, Washington, D.C. (Rich- ard K. Willard, Assistant Attorney General, Department of Justice, Wash- ington, D.C., Salvatore R. Martoche, United States Attorney for the Western District of New York, Buffalo, New York, Guy J. Sternal, Lt. Col., USAF, Craig Niederpruem, Major, JAGC, Of- fice of The Judge Advocate General, Washington, D.C., John Cordes, Civil Div:sion, Department of Justice, Wash- ington, D.C., of counsel), for Defen- dants-Appellees. -A58- Nancy Polikoff, Women’s Legal Defense Fund, Washington, D.C., Carolyn A. Kubitschek, Hofstra University School of Law, Hempstead, New York, for Amici Curiae, American Veterans Committee; Comparable Worth Project; Committee on Children and the Law, Ass’n of the Bar of the City of New York; The Em- ployment Law Center; The Nat’! Ass’n for the Advancement of Colored Peopie; Nat’! Coalition Against Domestic Violence; Nat’l Conference of Black Lawyers; Nat’! Political Congress of Black Women; Women’s Equity Action League; and Women’s Legal Defense Fund. Per Curiam: This is an appeal from an order of the United States District Court for the Western District of New York, Curtin, C.J., granting defendants-appellees’ motion for summary judgment and dismissing plaintiffs-appellants’ complaint. The seven named appellants are single mothers with custody of children under eighteen years of age. Six of them brought this class action suit in 1976 challenging the constitutionality of Army and Air Force regulations that prevented them from enlisting in the regular Army or Air Force or in the Army or Air Force Reserves. A class of female applicants denied admittance into the Army or Air -A59- Force because of these regulations was certified in June 1977. A defense motion for summary judgment dismissing the complaint was denied in 1978 with leave to renew. The motion was renewed in June 1983 and appellants filed a cross-motion for summary judgment in February 1984. On June 5, 1985, Chief Judge Curtin granted appellees’ motion, denied appellants’ motion and dis- missed the complaint, finding the case justiciable, but rejecting all of appellants’ constitutional claims on the merits. Mack v. Rumsfeld, 609 F.Supp. 1561 (W.D.N.Y. 1985). We affirm substantially for the reasons set forth in Chief Judge Curtin’s opinion. The district court opinion States that “Crawford [v. Cushman, 531 F.2d 1114 (2d Cir. 1976)] is still the law of this circuit ... .” 609 F.Supp. at 1563. We note that Crawford has been sub- stantially limited by the subsequent Supreme Court opin- ion in Rostker v. Goldberg, 453 U.S. 57 (1981), and our interpretation of Rostker in Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985). -A60- UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 677 August Term, 1985 Decided January 29, 1986 Docket No. 85-6184 CARLENE MACK, Individually and on behalf of all other persons similarly situated; SHIR- LEY STUKES; PATRICIA RAMSURE; QUEEN ESTHER TAYLOR; THELMA BARNES; MAXINE McNEILL; and TRINIA LEWIS, Intervenor, Plaintiffs-Appellants, Vv. DONALD RUMSFELD, Individually and in his official capacity as Secretary of Defense; MARTIN R. HOFFMAN, Individually and in his official capacity as Secretary of the United States Army; THOMAS C. REED, Individually and in his official capacity as Secretary of the United States Air Force, Defendants-Appellees. Before: TIMBERS, MESKILL and PRATT, Circuit Judges. -A6l- ORDER AMENDING OPINION It is hereby ORDERED: Page 3, lines 12-16 (slip op. page 1252, lines 17-21): Delete: We note that Crawford has been substantially limited by the subsequent Supreme Court opinion in Rostker v. Goldberg, 453 U.S. 57 (1981), and our interpreta- tion of Rostker in Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1988). And substitute therefor: We note that the portion of Crawford that stated that judi- cial deference to military deci- sions applies only to the ques- tion of their justiciability and that military decisions are accorded no presumption of vali- dity in an inquiry on the mer- its, see 531 F.2d at 1121, was specifically rejected by us as to matters "reasonably relevant and necessary to furtherance of our national defense" in Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985), in light of the -A62- intervening Supreme Court opin- ion in Rostker v. Goldberg, 453 U.S. 57 (1981). /s/ William H. Timbers, U.S.C.J. /s/ Thomas J. Meskill, U.S.C.J. /{[s/ George C. Pratt, U.S.C.J. -A63- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1830%3A1. Public record. Not legal advice.