Carlene Mack, Individually and on Behalf of All Otherpersons Similarly Situated; Shirley Stukes; Patriciaramsure; Queen Esther Taylor; Thelma Barnes; Maxinemcneill; and Trina Lewis, Intervenor, Plaintiffs-appellants, v. Donald Rumsfeld, Individually and in His Official Capacityas Secretary of Defense; Martin R. Hoffman, Individuallyand in His Official Capacity As Secretary of the Unitedstates Army; Thomas C. Reed, Individually and in Hisofficial Capacity As Secretary of the United States Airforce, Defendants- Appellees, 784 F.2d 438 (2d Cir. 1986)

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U.S. Court of Appeals for the Second Circuit - 784 F.2d 438 (2d Cir. 1986) Argued Dec. 16, 1985. Decided Jan. 29, 1986. As Amended March 5, 1986

James I. Meyerson, New York City (of counsel to Greater Upstate Law Project, Rochester, N.Y.), Phyllis Gelman, Margaret Klaw, New York City (of counsel to Greater Upstate Law Project, Rochester, N.Y. and Nat. Center on Women & Family Law, New York City), for plaintiffs-appellants.

Bruce Campbell, American Civil Liberties Union of Ohio Foundation, Columbus, Ohio, for plaintiff-appellant-intervenor Lewis.

Linda Silberman, Civil Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Salvatore R. Martoche, U.S. Atty. for W.D.N.Y., Buffalo, N.Y., Guy J. Sternal, Lt. Col., USAF, Craig Niederpruem, Major, JAGC, Office of The Judge Advocate Gen., Washington, D.C., John Cordes, Civil Div., Dept. of Justice, Washington, D.C., of counsel), for defendants-appellees.

Nancy Polikoff, Women's Legal Defense Fund, Washington, D.C., Carolyn A. Kubitschek, Hofstra University School of Law, Hempstead, N.Y., for amici curiae American Veterans Committee; Comparable Worth Project; Committee on Children and the Law, Ass'n of the Bar of City of N.Y.; Employment Law Center; N.A.A.C.P.; Nat'l Coalition Against Domestic Violence; Nat'l Conference of Black Lawyers; Nat'l Political Congress of Black Women; Women's Equity Action League; and Women's Legal Defense Fund.

Before TIMBERS, MESKILL and PRATT, Circuit Judges.


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 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 dismissed 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 the portion of Crawford that stated that judicial deference to military decisions applies only to the question of their justiciability and that military decisions are accorded no presumption of validity in an inquiry on the merits, 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 intervening Supreme Court opinion in Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981).