Current US military regulations allow for women to serve in the National Guard service though barring them to engage in direct ground combat. The reasons given for this exclusion include the inability of women to reach the same levels of physical power and endurance as men; there is a likelihood that when men and women come in close contact they will from relationships which may diminish unit cohesion; female combatants who are injured during war can easily divulge critical information to enemies and lastly women place greater risk on other male combatants to lose their heads in battle ground if they are injured. Jennifer Gilgarick seeks to challenge the CER on grounds that it challenges her rights under the equal protections clause of the fourteenth amendment.
In an age where women ere fighting for their rights and equality, there is increased need for creation of laws that ensure equal treatment of members of different genders. There is an increased need for males and females to be given equal treatment to ensure the development of a society that is free of all forms of discrimination irrespective of the basis. Though Jennifer's case may appear well placed a relevant to development of a more equal defense force basing the argument on the fourteenth amendment is misguided.
The 14th amendment equal protections clause prohibits the state from denying persons equal protection by the state. Simply put each and every member of the state must be treated equally by the law under similar circumstance and conditions. It is worth noting that the equal rights clause does not ensure equality that Jennifer is trying to push for rather it ensure that the law are equally applied to all members of the society. Jennifer is a member of the
National Guard’s service and is therefore bound by the rules of the National Guard’s service. By ensuring that Jennifer does not serve as grounds personnel the law would have been applied equally among all members of the national guards. If she were male and such a legislation passed on her then there would be room for seeking redress under the fourteen amendment equal rights protection clause. In fact under the fourteenth amendment equal rights protections clause, the results of the law are nor relevant as long as it is applied in a manner that is uniform. The inclusion of Jennifer in the National Guard’s service ground personnel would be a violation of the fourteen amendment equal rights protection clause due to the inequality it will have developed in application of the law. The main objective of the fourteenth amendment equal protections clause is to ensure that the state does not discriminate and therefore aid protections of civil rights.
The CER clearly has its undoing and is a typical example of a law that has been developed with the goal of treating women unfairly. It not only discriminates against women for their physique and lack of endurance but goes further to discriminate against their sexuality. When women fall prey to the sexual urges of men and therefore affect the cohesion of a group, the groups should be analyzed to determine if there was cohesion in the first place. In an age where homosexuality is rife and same sex relationships are widespread, the assumption that the development of a bond that may lead to people loosing their heads in battlefields is only possible between men and females is misplaced. Cases of sexual molestation especially sodomy are rife and the threat of sexual molestation on females and males is equal in enemy camps. It is therefore not true that males and females should all be given equal opportunities in serving as ground personnel in battlefields? The reality in ground battles is however different and requires the emotional and physical strength that cannot be easily attained by female combatants.
The Muller v. Oregon case in 1908 in which the state upheld Oregon state restriction for women justified by the obligations placed on the state to ensure that interest groups are protected (Oyez 1908). Women are biologically weak than males and have a stronger propensity to emotional outburst. In placing laws that restrict their involvement in activities that are potentially emotionally charged, the state is not only protecting the lives of the male members but is also ensuring that the lives of female personnel are protected.
Determining if restricting female reduces the chance they have for developing their career has a bearing on the direction of the case. The implication of the CER is that no female will ever gain merit for her accomplishment in the face of danger or her fête on the battle ground. Security and defense are so much battle oriented that failing to include females in battles limits the areas of accomplishment. If the assessment criteria is such that battle ground involvement does not give the male members an undue advantage then the CER is not unfair. In a 1944 ruling in Korematsu v. United States the court ruled that the executive order 9066 which required Japanese-Americans to be excluded from the west coast military must be upheld for the need to protect espionage outweighed individual rights (Oyez 1944). This may be the case in application of the CER but the reliability of the basis of CER is questionable which brings about questions on the viability of their assertion.
Emotional and sexual relationship places other members of the force at risk; it is however clear that unlike the 1940s the modern society is full of men whose sexual preferences are different. Why then are gay men not excluded from ground duties yet they place other officers under the same threats? There are disparities in the reasoning that seek to support the CER though it is apparent there are areas where the law misses the critical objectivity or reality in combat. In a case of University of California v. Bakke a court ruled that race is among the numerous factors used by discriminatory boards (Oyez 1978). The quota system was condemned as being unfair though the use of race as a factor in admission in colleges was upheld for race as factor helps communities that are disadvantaged to gain information. This clearly shows that a system can be biased ion some aspects yet serve to meet the needs of the community.
The use of the fourteenth amendment equal protection clause may not be the best approach in this case. The national guard has not in any way applied the CER in a manner that is non-uniform, though the legislation and applicability of the CER is questionable the areas in which it serves to ensure the rights of women as members of the society who are less physically empowered and therefore protecting the lives of both women and men in the national guard is of importance. There is no sufficient evidence that the system goes against her rights as a US citizen. The National Guard can argue that it is protecting the interest of its members and therefore the state by ensuring that members who are more likely to divulge information are not put in positions where they are at risk of placing the security personnel and the state at risk. Gender considerations actually show that females are physically challenged if compared to their male counterparts. Though the risk that women are placed on due to their sexual orientation is not exclusive to females for gay members are faces with the same challenges, the fact that one condition or reason for the application of the CER has been met and the magnitude of its implication makes it unsafe for both female and male national guards for the female members to be involved in ground battles. Moreover, there has been no unequal application of CER and therefore the validity of Jennifer's petition under the 14th amendment equal protection clause is questionable.
In summary, the national guards as per the petition placed by Jennifer regarding the application of the CER have been applying CER in a manner that is uniform to all defense officials. There is no reason to believe that the CER places the female members in a position where they cannot effectively compete their male counterparts. Though there are some aspects of CER that lack a good basis, there are some that have a strong basis. The fact however remains that the application of CER has been uniform and unless Jennifer can prove otherwise under the 14th amendment protection clause the equality of the CER withstanding, there is no reason to warrant the inclusion of female members into the national guards grounds personnel with respect to Jeniffer's case.
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