NCFM NOTE: Below is NCFM’s opposition to the Selective Service System’s motion to dismiss our lawsuit to stop the horrific gender discrimination within the Selective Service System. Once laws were repealed preventing women from holding combat positions in the military they became “similarly situated” as men. Hence, all legal prohibitions requiring women to register for Selective Service (the “Draft”) no longer exist. Yet, the federal government, the same government that repealed the laws, is opposing women registering for the Selective Service System. One more example of women receiving preferential treatment; or, to say it another way, women are again being granted superior legal rights and benefits over men without the same responsibilities and consequences. Please note that our attorney, NCFM Vice-President, Marc Angelucci, is volunteering his time to do this lawsuit. All NCFM members are volunteers. If you believe in what we have been doing since 1977 please support us financially. Lawsuits and the day-to-day operation of NCFM cost $$$$$. The response below, the format, is modified to better conform with posting it on our website:
Marc E. Angelucci, Esq. (SBN 211291)
LAW OFFICE OF MARC E. ANGELUCCI
Attorney for Plaintiffs National Coalition For Men and James Lesmeister
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NATIONAL COALITION FOR MEN and JAMES LESMEISTER, Individually and on behalf of others similarly situated,
SELECTIVE SERVICE SYSTEM; LAWRENCE G. ROMO, as Director of SELECTIVE SERVICE SYSTEM; and DOES 1 through 50, Inclusive,
Case No. CV13-02391 DSF (MANx)
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Hearing Date: July 29, 2013
Time: 1:30 p.m.
Location: Courtroom 840
Royball Federal Building, 255 E. Temple St., Los Angeles, CA
Judge: Dale S. Fischer
Plaintiffs National Coalition For Men (“NCFM”) and James Lesmeister(“Lesmeister”) (together, “Plaintiffs”), submit the following Opposition to Defendants’ Motion to Dismiss (“Motion”):
SUMMARY OF OPPOSITION
With the exception of some arguments concerning venue, the 14th Amendment, and United States Code, Title 28, Section 1983 (“Section 1983”), Defendants’ arguments are either meritless or misplaced. First, Defendants argue Lesmeister lacks standing because he has not sufficiently alleged an injury, and that even if he had, the Court could not redress the wrong because he had already registered for the draft. This argument overlooks the finding in Rostker v. Goldberg, 453 U.S. 57 (1981), the primary case upon which Defendants rely, where the Rostker plaintiffs were found to have standing even though they, like Lesmeister, had registered for the draft. The Rostker plaintiffs’ allegation of sex discrimination against them by the government was sufficient because such discrimination is injurious in and of itself.
Next, equally meritless is Defendants’ argument that NCFM lacks standing because it does not allege every single factor that would qualify its members for the draft. NCFM sufficiently pled the ultimate facts for standing, i.e., that NCFM has male members ages 18 to 25 who “would otherwise have standing to sue in their own right” and has male members who will, or who have children who will, be 18 to 25 years old at some time in the future relative to this action.
Defendants then challenge venue, on the grounds that Defendants reside in Washington D.C. or Virginia, the acts substantially occurred there, and Plaintiffs have not alleged any of them or their members reside in Los Angeles. However, as Defendants point out in their Motion, NCFM is registered in California. And it would be an extreme burden on Plaintiffs to transfer this case to Washington D.C. or Virginia, because NCFM is a non-profit organization, and Plaintiffs are represented by a Los Angeles attorney who represents them pro bono. However, to whatever extent Defendants’ venue challenge is viable, Plaintiffs can easily amend their Complaint to allege they have members in Los Angeles who are ages 18-25 and both qualify for and have registered for the Selective Service.
Defendants next argue this case is not ripe, because the government has not yet fully implemented its new gender-neutral policy allowing women in combat. This argument fails for several reasons. First, the very cornerstone of the majority’s decision in Rostker – i.e., that the exclusion of women from combat makes it unnecessary to include women in the draft – is now officially gone. on January 24, 2013 the Department of Defense and Joint Chiefs of Staff officially rescinded all barriers to women in combat effective immediately, hence lifting the Constitutional barrier to a gender-neutral Military Selective Service Act, 50 U.S.C. App. § 451 et seq. (1976 ed. and Supp. III) (“MSSA”). The Administration cannot have its cake and eat it too. That is, the Administration cannot get the political credit for proudly announcing in January that women are eligible for combat, and now move to dismiss this lawsuit on the grounds that women are not eligible for combat.
Second, a judicial remedy can be readily fashioned wherein women, as well as men, are eligible for the draft as women, as well as men, are eligible for combat. One does not preclude the other, in fact, they can be synchronized. Lastly, we cannot know the status of the changes at the stage of a Motion to Dismiss. Thus, the Motion should be denied in its entirety.
I. PLAINTIFFS HAVE STANDING TO FILE THIS ACTION.
Plaintiffs have standing. They sufficiently pled the ultimate facts that they and their members are being subjected to sex discrimination by Defendants, and that this discrimination is no longer Constitutionally justified because the sole basis of Rostker – that women are excluded from combat – is now gone, the Administration having said so on January 24th. The Rostker plaintiffs were in the same position as Plaintiffs in this case and the Rostker plaintiffs were found to have standing.
A. Lesmeister Has Standing.
Defendants argue Lesmeister lacks standing because, first, he has not pled an injury, and second, the Court cannot redress the injury because Lesmeister already registered for the Selective Service. Thus, even if the sex discrimination in the MSSA is lifted, Lesmeister “would remain in precisely the same position as he does today.”
This argument fails for several reasons. To begin with, the plaintiffs in Rostker were registered for the Selective Service, and none of the courts at any level found they lacked standing. The three-judge panel of the District Court expressly found the Rostker plaintiffs had standing because they were men who were “subject to registration for the draft and subsequent induction into the Armed Services,” and that was sufficient for standing because it rendered the plaintiffs injured as a matter of law due to sex discrimination. Rostker, id., fn. 2.
The District Court specifically stated:
In the instant case the harm to the plaintiffs is neither remote nor hypothetical. Those members of the class born in 1960 and 1961 are under compulsion of law to present themselves for registration with the Selective Service System . . . Thereafter these registrants are under a continuing obligation to inform Selective Service of any changes of address, and to maintain proof of registration. . . . Those members of the plaintiff class who registered before April 1, 1975, are under a current legal obligation to maintain their registration and report their changes of residence to the Selective Service. Those plaintiffs already registered are subject to potential reclassification and induction into the armed services.
509 F. Supp. at 590-591, emphasis added. The court further held:
Because we find that registration itself and the continuing obligations placed on registrants under both the old and new selective service regulations are a sufficient intrusion on an individual’s rights, the members of the first two subclasses have standing in this case.
Ibid., emphasis added.
That ruling was never overturned by the Supreme Court. Instead, the Supreme Court wrote a sharply divided decision finding that even though the plaintiffs had standing,
since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft.
Id., at 58 (emphasis added).
The reason the Rostker plaintiffs had standing by alleging sex discrimination against them is simple: sex discrimination is injurious in and of itself. Legislative classifications that distribute benefits and burdens on the basis of gender carry “the baggage of sexual stereotypes.” Orr v. Orr, 440 U.S. at 283. Likewise, the California Supreme Court has unanimously held:
Men and women alike suffer from the stereotypes perpetrated by sex-based differential treatment. When the law emphasizes irrelevant differences between men and women, it cannot help influencing the content and the tone of the social, as well as the legal, relations between the sexes. … As long as organized legal systems . . . differentiate sharply, in treatment or in words, between men and women on the basis of irrelevant and artificially created distinctions, the likelihood of men and women coming to regard one another primarily as fellow human beings and only secondarily as representatives of another sex will continue to be remote. When men and women are prevented from recognizing one another’s essential humanity by sexual prejudices, nourished by legal as well as social institutions, society as a whole remains less than it could otherwise become.
Koire v. Metro Car Wash, 40 Cal.3d 24, 34-35 (1985), emphasis added.
Historically, women were given the role of nurturer while men were given the role of protector and provider. These sex-based assignments go hand in hand, and the eradication of one requires the eradication of the other. Equal rights for women means equal rights for men as well; otherwise, it is an unbalanced equation, i.e., there is no equation and no equality.
Discrimination against one sex casts harmful, sexist stereotypes against both sexes. Thus, in Rosker, amicus briefs in favor of the plaintiffs were filed by the National Organization for Women and by Men’s Rights, Inc., from seemingly opposite sides, both arguing that the MSSA promotes sexist gender roles.
Forcing only males to register sends a message that both sexes have a “place” and that males are the disposable sex when it comes to defending the nation. As bestselling author Warren Farrell, a former member of the board of the National Organization for Women, aptly puts it:
Requiring only males to register for the draft in case the country needs more soldiers is as sexist as requiring women to register to get pregnant in case the country needs more babies.
(“The Myth of Male Power; Why Men Are the Disposable Sex.”)
The Court can certainly redress the issue by removing the sex discrimination from Selective Service requirements. This can be done either by ending the draft registration requirement altogether, or by requiring both men and women to register. Either way, the Court would redress the wrong by requiring the government to treat men, including Lesmeister, equally with women.
It makes little sense to say Lesmeister’s compliance with the law defeats his standing to sue to end discrimination. Such a suggestion would mean, in many cases including this one, that one must break the law and risk the significant penalties in order to challenge unconstitutional discrimination. This was not the ruling in Rostker, nor should it be the ruling here. However, if necessary, Lesmeister can easily amend the Complaint to allege that he is injured in fact by the discrimination.
B. NCFM Has Standing.
Defendants argue that NCFM fails to plead facts necessary to support associational or organizational standing in that NCFM does not allege their members are harmed by or subject to registration requirements; or, that some NCFM members are males who are U.S. citizens and are not members of the military or students at military academies or otherwise exempt from the draft, and that NCFM failed to identify any member who has standing.
However, the Complaint specifically asserts that NCFM members include males ages 18-25 who “would otherwise have standing to sue in their own right.” (Complaint, p. 3.) The Complaint goes on to explain that NCFM’s membership includes many men who will be of said age at some time in the future relative to this lawsuit and many of whom have male children who are ages 18-25 as well. Those are ultimate facts sufficient for standing. Nonetheless, if necessary, NCFM can easily amend its Complaint to assert the specific characteristics of its qualifying members for purposes of standing.
II. VENUE IS PROPER.
Defendants argue that this Court is an improper venue for this
action because (1) the Defendants do not reside in California or Los Angeles, (2) the events giving rise to the cause of action did not substantially occur in California or Los Angeles, and (3) there is no evidence or assertion that Plaintiffs reside in California.
However, in federal constitutional challenges where property is not at issue, venue is proper where the plaintiffs reside. 28 U.S.C. § 1391, subd. (e)(1)(C). For example, In Center for Biological Diversity v. National Science Foundation, D.C.Cal.2002, 2002 WL 31548073, 55 ERC 1873 held venue was proper under Section 1391(e)(3) because the plaintiff, a non-profit organization, maintained an office within the district and no real property was involved in the action. See also, Natural Resources Defense Council v. Abraham, C.A.9th, 2001, 244 F.3d 742; McEachern v. U.S., C.A.4th, 1963, 321 F.2d 31; Hill v. Napolitano, 839 F. Supp. 2d 180, 182-183 (D.D.C. 2012); Safir v. Gulick, D.C.N.Y.1969, 297 F.Supp. 630.
In this case, Defendants’ Request for Judicial Notice shows NCFM is based in San Diego, California and registered with the California Secretary of State as a non-profit corporation, even if its primary headquarters is in New York. While the Complaint does not allege NCFM has qualifying members in Los Angeles, if necessary NCFM can and requests leave to amend so as to make that allegation.
Moreover, the events giving rise to the cause of action do substantially occur in California, as men in California, the most populous state, are subject to and register under the MSSA, while similarly situated women are not required or allowed to register. Defendants do not suggest that more men in Washington D.C. or Virginia register for the draft than men in the much more populous California do.
By comparison, Rostker was heard in the Eastern District Court of Pennsylvania, not Washington D.C., before being brought to the Supreme Court. Those courts did not rule that venue was improper. Nor should this Court rule that venue is improper in this case.
Further, the Complaint pleads that NCFM is a non-profit organization. NCFM is represented pro bono in this action by a Los Angeles attorney. Transferring the case to the Washington, D.C. or Virginia would be an enormous strain on Plaintiffs and their attorney in terms of travel and appearances. San Diego would be preferable, but Plaintiffs’ chose Los Angeles, where their counsel and many of their members reside. By contrast, the United States Attorney General has a Los Angeles office, and there is no allegation that Defendants are unduly burdened by venue being here.
As stated earlier, if necessary, Plaintiffs can amend their Complaint to allege NCFM is based in San Diego and that NCFM members who are of the proper draft registration age and qualify to register are living in Los Angeles. In fact, NCFM intends to amend its Complaint to name an additional plaintiff who is between 18 and 25 years old, resides in Los Angeles, and has registered for the draft.
III. THE CASE IS RIPE.
On January 24, 2013, Secretary of Defense Leon E. Panetta, and Chairman of the Joint Chiefs of Staff Martin E. Dempsey, loudly and proudly announced that the ban on women in combat is “rescinded effective immediately.” Specifically, they announced:
Therefore, the 1994 Direct Ground Combat Definition and Assignment Rule excluding women from assignment to units and positions whose primary mission is to engage in direct combat on the ground is rescinded effective immediately. Currently closed units and positions will be opened by each relevant Service, consistent with the guiding principles set forth in the attached Memorandum and after the development of and implementation of validated, gender-neutral occupational standards and the required notifications to Congress. The Military Departments shall submit by May 15, 2013, to the Secretary of Defense through the Chairman of the Joint Chiefs of Staff and the Under Secretary of Defense for Personnel and Readiness, their detailed plans for the implementation of this directive.
(See Exhibit “B” to Defendants’ Motion, p. 54, emphasis added.)
Thus, the very basis on which the majority in Rostker relied, that “women are excluded from combat service by statute or military policy” (id., at 58), is officially gone. Whether the new policy requires more time to implement is irrelevant to the Constitutional question at issue, and, even if relevant, is a question of fact and thus not proper for a Motion to Dismiss.
Whether the changes will take more time to implement is irrelevant to whether the legal basis for the discrimination in the MSSA is still justified under the Constitution. The implementation of gender neutral policies in combat and in the draft can go hand in hand. During the time it takes to implement one, the other can be simultaneously or equally implemented. What matters is that the legal basis for the sex discrimination in the MSSA no longer exists Constitutionally, because the policy banning women from combat was lifted effective January 24, 2013.
Moreover, whether the full implementation of the gender neutral policy in combat requires more time to implement, and what the status of that process is, remains a question of fact for which discovery is necessary. Thus, it should not be decided on a Motion to Dismiss. In fact, dismissing the case at this early stage based on conjecture or argument instead of fact regarding the status of the implementation would create an undue burden on Plaintiffs to “wait and guess” as to when the proper time for re-filing has come. It would also be contrary to judicial economy, requiring one or more re-filings in the hopes that maybe this time around the case will be considered ripe.
Furthermore, Defendants, i.e., the government, could forever keep Plaintiffs or future similar plaintiffs’ similar draft discrimination claims from ever being adjudicated because the government could forever argue that women and men’s roles in combat have not reached full or perfect equality. One can always draw some distinction between whites and blacks, homosexuals and heterosexuals, and women and men in their roles in or access to combat.
The ripeness doctrine is aimed at cases that do not yet have a concrete impact on the parties arising from the dispute. Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). The doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” National Park Hospitality Ass’n v. Department of Interior, 538 U.S. 803, 123 S.Ct. 2026, 2029 (2003). Prudential ripeness requires evaluating “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbot Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515 (1967) (abrogated on other grounds in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984 (1977)).
Accordingly the District Court in Rostker rejected arguments against ripeness similar to those made by Defendants, and the ruling on ripeness was not overturned on appeal. Specifically, it held:
Prudential concerns strongly suggest that this case is ripe. Defendants argue that this case will not be ripe until military mobilization and induction of registrants take place. Time cannot appreciably clarify the record before us. Delay until a period up of national emergency occurs would require us to decide sensitive constitutional issues in an atmosphere of urgency which might intrude upon a well-considered adjudication. Also, were we to wait until actual mobilization, Congress may well find itself faced with the necessity of revising and reshaping legislation of monumental importance in an atmosphere totally unconducive to measured thought.
Defendants’ argument on both standing and ripeness can be reduced to their assertion that registration alone is so inconsequential and so minor a requirement that we should not adjudicate this case at this time. Free people abhor any governmental intrusion into privacy and such intrusions are tolerated only as justified by the needs of society. We will accept no argument that intrusions are inconsequential and beneath the recognition of a federal court. The concept that the government can, without justification, require any group of Americans to register and continually report their whereabouts is constitutionally unacceptable. The reasons for any intrusions by the government must always be open to scrutiny under the Constitution. The justification for registration in the instant case is the need to conscript armed forces in an orderly manner to meet the defense needs of the nation. This purpose is clearly valid. However, the need to register men only, and the need not to register women, is not so apparent.
Registration is a sufficient intrusion on the rights of any citizen to allow this court to adjudicate the constitutionality of that registration. We need not wait, and should not wait, until the governmental intrusion on the individual’s civil rights reaches maximum proportions and the nation is in a time of crisis.[FN10] The case is ripe.
509 F. Supp., at 590-591, emphasis added.
The same prudential concerns apply in the present case. Delaying the constitutional question up until a draft is implemented – which is not unrealistic in light of current global affairs – would require the Court to decide sensitive constitutional issues in an atmosphere of urgency which might intrude upon a well-considered adjudication, at which time Congress may well find itself faced with the necessity of revising and reshaping legislation of monumental importance in an atmosphere totally adverse to measured thought.
Defendants’ suggestion that there is no actual harm or injury runs contrary to the fundamental constitutional principle that all persons should be treated equally under the law. Registration is a sufficient intrusion on the rights of any citizen to call for adjudication of its constitutionality in light of Equal Protection, and should not be delayed until the nation is in a time of crisis.
This case was arguably ripe even before the January 24, 2013 rescission of the ban on women in combat, because many changes had already occurred. The following was the factual scenario when Rostker was decided:
Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. § 6015 (1976 ed., Supp. III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U.S.C. § 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.” The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from [p77] combat in exempting women from registration. In the words of the Senate Report: The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee. . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy.
Id., emphasis added.
The Department of Defense Report dated February 2012 indicates substantial changes already occurred between the Rostker decision and the January 24, 2013 rescission of all barriers to women in combat. For example, page 46 states:
Since the Rostker decision, sections 8539 and 6015 fifth 5th, of title 10, U.S.C., prohibiting the assignment of women to aircraft engaged in combat and vessels engaged in combat (except aviation officers assigned as part of air wing or other element), respectively, have been repealed.
It is also noteworthy that even with the situation that existed at the time Rostker was decided, the decision was still sharply divided by four to three, with a vigorous dissent from Justice Thurgood Marshall, joined by Justice Brennan, and a separate dissent by Justice White, all of them agreeing with the District Court that the sex discrimination in the MSSA violated Equal Protection.
Finally, while Rostker discussed deference to Congress on the issue, they also said “None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs,” and “We . . . do not abdicate our ultimate responsibility to decide the constitutional question . . . .”
In any event, now that the ban on women in combat has been lifted effective immediately, any deference to the military would be a fact-based analysis, requiring discovery and evidence, and thus would not be proper at the early stage of a Motion to Dismiss.
IV. THE COMPLAINT STATES A SUFFICIENT CLAIM.
Plaintiffs submit on the pleadings regarding the 14th Amendment and Section 1983, but for reasons already set forth above, Plaintiffs have alleged a valid Equal Protection challenge under the Fifth Amended to the United States Constitution.
A. Counts I & II.
As is already set forth above, to the extent the 14th Amendment and Section 1983 do not apply to the Federal government, Defendants submit on the pleadings on the challenge to Counts I and II.
B. The Complaint States a Valid Equal Protection Challenge.
Defendants’ argument that Count III does not allege a valid Equal Protection challenge essentially repeats the same arguments they made regarding ripeness, without adding more. For the reasons already set forth above, these arguments lack merit. Nonetheless, a summary of Equal Protection analysis is warranted.
Equal protection “is essentially a direction that all persons similarly situated should be treated alike.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Classifications based upon sex, like classifications based upon race, alienage, or national origin, are “inherently suspect” and subject to heightened scrutiny review. Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (statute that allowed male members of the military to receive certain benefits if they were married, but did not give the same automatic benefits to women in the military, could not withstand strict scrutiny).
The Equal Protection Clause of the 14th Amendment does not on its face apply to the federal government, but the Supreme Court applies identical Equal Protection scrutiny under the Fifth Amendment. Schneider v. Rusk, 377 U.S. 163, 168 (1964). Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. 518 U.S. at 531. The gender discrimination scheme must be examined under the “heightened” scrutiny mandated by Craig v. Boren, 429 U.S. 190 (1976). Under this test, a gender-based classification cannot withstand constitutional challenge unless the classification is substantially related to the achievement of an important governmental objective. Kirchberg v. Feenstra, 450 U.S. 455, 459, 459-460 (1981). The party defending the challenged classification carries the burden of demonstrating both the importance of the governmental objective it serves and the substantial relationship between the discriminatory means and the asserted end. Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142, 151 (1980). As a result, the Government must demonstrate that the gender-based classification it employs bears “a close and substantial relationship to [the achievement of] important governmental objectives,” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979).
In the present case, the government bears the burden of proving that excluding women from Selective Service registration, and requiring only men to register, is closely and substantially related to an important governmental purpose. It is not the decision to register men that must be shown to be necessary to further the goal of raising an army, but the decision to register only men, and exclude women, from registration.
As is already stated above, Plaintiffs alleged a valid Equal Protection challenge by pointing out the gender discrimination in the Selective Service, and have shown that the basis on which Rostker was decided has now been officially rescinded.
Plaintiffs have standing, the case is ripe especially for purposes of a Motion to Disimiss, and Plaintiffs have alleged a valid Equal Protection challenge. Regarding venue or standing, if the Court agrees with Defendants’ arguments, then Plaintiffs can and do request leave to amend their Complaint as necessary to cure any deficiencies the Court may find.
Law Office of Marc E. Angelucci
Date: _____________ By: _______________________________
Marc E. Angelucci, Esq.
Attorney for Plaintiffs
National Coalition For Men and
 See, e.g., Footnote 4 of the initial District Court decision stating plaintiff Movent Stephen Retherford already registered for the draft. 509 F. Supp. 586, FN. 4 (1980).
 Notably Frontiero v. Richardson, 411 U.S. 677 (1973), ruled that the Equal Protection Clause of the United States Constitution requires the U.S. military to provide its female members with the same housing and medical benefits as it provides its male members. Frontiero discusses America’s long and unfortunate history of sex discrimination, Id. at 684 – 687, which NCFM and many other equal rights organizations seek to end. Justice William J. Brennan Jr., in announcing the judgment of the Court, compared the military’s unequal treatment of men and women regarding housing and medical benefits to be another example of this country’s unfortunate tradition of treating people unequally based on their sex, finding that “Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage.” Id. at 684.