This article offers an approach, not an answer. It concludes that any of the three branches of government could permit women to serve in combat units. Women have been formally barred from serving in combat ships or aircraft by a 1948 law-the Women's Armed Services Integration Act. Because the sponsors of that legislation concluded that it was impossible to distinguish combat and noncombat roles in the Army, the Secretary of that service was given discretion to designate combat units which would be filled only by men. Congress could change the law. The judiciary could decide that the law, or the Army's exercise of discretion, was unconstitutionally discriminatory. The President could issue an executive order ameliorating the law's application. The nature of the inquiry into whether there should be a change, and the criteria applied, will differ depending on the branch of government involved. While that proposition is unremarkable, the distinction seems to have escaped the attention of most proponents and opponents of the combat exclusion laws. Although the considerations that should apply can only be outlined, the debate is more complex than is commonly suggested.
Michael F. Noone, Women in Combat: Changing the Rules, 39 NAVAL L. REV. 187 (1990).