written by thomas clifford
Nearly four decades after the United States Supreme Court upheld the Military Selective Service Act (MSSA), a federal District Court judge declared that the act’s male-only draft violates the Equal Protection Clause. U.S. District Court Judge Gary Miller relied on new developments in the military and recent sex-discrimination cases in issuing the ruling.
The MSSA requires all American men––but not women––to register for the draft when they turn 18. They remain draft-eligible through the age of 25. Although no one has been conscripted into the United States military in over 40 years, failure to comply with the draft can result in fines, jail time, or denied federal services.
In 1981, the Supreme Court in Rostker v. Goldberg upheld a challenge to the male-only draft. The Court held that the Act did not violate the Fifth Amendment’s Equal Protection Clause because Congress did not arbitrarily treat men and women differently in passing the act. Specifically, Justice William Rehnquist’s majority opinion argued that men and women were not “similarly situated” because women could not participate in military combat at the time. Therefore, because the purpose of the draft was to prepare troops for combat, the Court concluded that the male-only draft did not violate equal protection principles.
In 2013, however, the Department of Defense ended the ban on women’s participation in combat. Then, two years later, the Department of Defense eliminated all other gender-based restrictions.
District Court Ruling
Following the integration of women into all military service roles––including combat positions––two male plaintiffs renewed a decades-old constitutional question: does the male-only draft violate the Equal Protection Clause? In National Coalition for Men v. Selective Service Systems, a district court held that it does.
At the outset of the opinion, Judge Miller noted that classifications based on sex require proponents of the legislation to show that the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” After analyzing the governmental objectives, the court yielded to Congress’s broad authority over the military, and held that the male-only draft serves important governmental objectives.
The court, however, ruled that the male-only draft is not “substantially related” to the achievement of the governmental objectives. Judge Miller rejected the Selective Service System’s argument that Congress preserved a male-only draft because of concerns about a perceived female physical inability to participate in combat. Any reference by Congress to this notion, according to Judge Miller, was not rooted in statistical data, but rather “assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.” Judge Miller appealed to United States v. Virginia to bolster the rejection of the defendant’s argument, noting that the Supreme Court held that justifications of sexual classifications “must not rely on overbroad generalizations about the talents, capacities, or preferences of males over females.”
Moreover, Judge Miller distinguished National Coalition from Rostker based on the factual differences between the two cases. He contended that the dispositive fact in Rostker was that women were not similarly situated because they were not combat eligible. Thus, now that women are combat eligible, Judge Miller reasoned that they now are similarly situated as men. Accordingly, Judge Miller found that the MSSA’s male-only draft now violates the Fifth Amendment’s Equal Protection Clause.
Importantly, however, Judge Miller did not order the government to make immediate changes to the selective service.
The National Coalition ruling comes as Congress is set to release a report next year from an 11-member commission regarding the male-only draft. Nevada Representative Joe Heck, chairman of the commission, insisted that the District Court’s ruling will neither expedite nor influence their report.
Even if the National Coalition ruling does not influence Congress in issuing the report, when the case is inevitably appealed to the Court of Appeals––and perhaps the Supreme Court after that––Congress may need to completely overhaul the MSSA’s male-only draft. Specifically, if the District Court’s decision is affirmed, Congress would have three options: (1) integrate women into the Selective Service when they turn 18; (2) make registration in the Selective Service voluntary, but withhold certain benefits for those that don’t register; or (3) abolish the Selective Service completely. But if National Coalition is overturned, then Congress would not be required to do anything.
Ultimately, the future of the Selective Service is unclear, but significant changes may take effect in the near future.
Gregory Korte, Q&A: A judge has ruled the male-only military draft unconstitutional. What happens now?, USA TODAY (Feb. 25, 2019).
Matthew Schwartz, Judge Rules Male-Only Draft Violates Constitution, NPR (Feb. 25, 2019).
Nat’l Coal. for Men v. Selective Serv. Sys., No. H-16-3362, 2019 U.S. Dist. LEXIS 28851 (S.D. Tex. Feb. 22, 2019).
Paul J. Weber, Federal Judge Rules Against Male-Only Draft, but no Changes Imminent, PBS (Feb. 26, 2019).
Rostker v. Goldberg, 453 U.S. 57 (1981).
Tyler Pager, Drafting Only Men for the Military is Unconstitutional, Judge Rules, NY TIMES (Feb. 24, 2019).
United States v. Virginia, 518 U.S. 515 (1996).
Photo courtesy of Air Force Times.