Federal Judge Gray Miller of Texas recently issued a rather shocking ruling in the case of National Coalition for Men v. Selective Service System. Shocking, in part, because Judge Miller was appointed to the federal bench by President George W. Bush.
The National Coalition for Men is a group that has been working since 1977 to end harmful discrimination and stereotypes against boys and men. They say they are “a gender inclusive, nonpartisan, ethnically diverse organization that effects civil rights reform through advocacy, education, outreach, services and litigation.” They filed this lawsuit against the Selective Service System claiming that the exclusion of women from the male-only draft is unconstitutional.
Federal law now requires males – but not females – to register for the draft. The law provides that “every male citizen of the United States, and every other male person residing in the United States ... between the ages of eighteen and twenty-six” must register. Failure to register can lead to fines and prison, and prevents one from receiving government benefits such as student loans or from employment in a federal job.
At the time this law was passed, the military did not allow women to serve in combat roles.
The United States Supreme Court decided in 1981 (Rostker v. Goldberg) that the male-only draft was constitutional on the basis that women were restricted from serving in combat roles. After all, what sense did it make to require women to register for the draft when the purpose of the draft was the mass mobilization of combat troops in the event of war?
However, in 2013, the Department of Defense officially lifted the ban on women in combat. In 2015, it lifted all gender-based restrictions on military service. Thus, women are now eligible for all military service roles, including combat positions.
Judge Miller therefore ruled that the Rostker decision is no longer valid. The Constitution requires due process and equal protection of the laws, and differentiating on the basis of gender is only valid if it serves “important governmental objectives." The arguments of the Selective Service System, said the judge, are nothing more than an “ancient canard about the proper role of women.”
He went on to say that “any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands dissimilar treatment for men and women who are similarly situated, and therefore involves the very kind of arbitrary legislative choice forbidden by the Constitution.”
We do not know if the government will appeal Judge Miller’s decision. However, in 2016, Congress created a National Commission on Military, National, and Public Service, which is evaluating the Selective Service System and whether women should be required to register, or potentially do away with the registration requirement altogether to avoid the gender inequality issue.
The Commission’s interim report suggests numerous options, including a type of universal service requiring all Americans to participate in some type of military or public service.
The Commission’s final report is not expected until March 2020. The government asked Judge Miller to hold off on making a ruling in this case until then, since if the registration requirement is abolished, the whole issue will be moot. However, the judge pointed out that Congress has been debating the male-only requirement since at least 1980, and there is “no definite end in sight."
Deference to Congress “does not justify a complete and indefinite stay when parties allege that the federal government is presently violating their constitutional rights.”
I suspect that if this ruling is upheld on appeal, we will see quite a bit of protesting from many Americans, men and women alike. Views about “the proper role of women” are still a passionate subject of debate in this country.
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at firstname.lastname@example.org or jamesmanahan.com.