Three years after Congress most recently refused to make women eligible to be drafted into the military, a federal judge in Houston ruled on Friday that the registration system unconstitutionally discriminates against men. Changes in military service for women, the judge decided, have ended the binding effect of a four-decades-old ruling by the Supreme Court upholding the constitutionality of the men-only sign-up requirement.
Throughout American history, whenever the nation has relied on a draft system to raise armies, women have never been subject to being drafted, or even to register for it. Congress is currently continuing the debate over the policy, but the Houston judge decided that he was not required to wait to see how that turns out, noting that Congress has been discussing the issue at least since 1980.
Senior U.S. District Judge Gray H. Miller, in his 19-page opinion, criticized the Trump Administration’s legal defense of men-only registration as resting on “archaic and overbroad generalizations” about women and the assumption that women would be more reluctant to go into actual military combat than men are.
Because Administration lawyers mounted a vigorous defense of the men-only requirement, an appeal of the new ruling to higher courts – including the Supreme Court – appears likely. The Court last ruled directly on the issue in rejecting a sex equality challenge in the 1981 decision in Rostker v. Goldberg.
While the Selective Service System requiring registration by men aged 18 through 25 is still a binding law, there is no actual draft in operation and the current military is all-volunteer. Thus, the potential that young women would actually be compelled to enter the military, for any role in combat or otherwise, is not real at this point.
Under a policy put into effect in 2017 by the Obama Administration, however, women who volunteer and enlist in the military now can be assigned to any role, including any assignment in actual armed warfare, such as piloting fighter airplanes.
The draft itself has remained on standby since 1980, when the registration system was put back into effect after a five-year lapse. Registration was reactivated after the Soviet Union invaded Afghanistan. The system’s main function always has been to enable the government to quickly expand the military’s ranks, primarily for service in actual combat.
Since Judge Miller did not explicitly order the government to immediately stop insisting on registration only by men, or to require women to start signing up, the new ruling declaring the existing system as unconstitutional has no immediate, practical impact. But it nevertheless is a significant constitutional development on an issue that remains deeply controversial in America’s ongoing culture wars.
Whether women might someday be at risk of becoming wartime military casualties has long been a point pressed by conservative activist groups in their campaign against adding to the Constitution an Equal Rights Amendment compelling the government to treat the sexes equally. The effort to add ERA to the basic document faltered years ago, but there are ongoing attempts to revive it – an effort that failed again just last week in the state legislature in Virginia.
Judge Miller’s ruling was based on the guarantee of “due process” in the Constitution’s Fifth Amendment, which the Supreme Court has interpreted since 1954 as imposing a duty on the federal government not to discriminate in enforcing federal laws – a duty later extended to a guarantee of sex equality, though not as expansive as the constitutional mandate for race equality. (The states have been bound by a legal equality mandate since 1868, under the Fourteenth Amendment and that, too, now assures sex equality.)
A special federal commission that Congress set up to study whether to change the registration system noted in an interim report last month that it is studying whether to extend registration to women but has not yet reached a conclusion.
The case leading to Judge Miller’s ruling on Friday was filed by two men — a Texan and a Californian — who have registered for the draft; they were joined by an advocacy group that focuses on issues of sex discrimination – the National Coalition for Men. The lawsuit has been in the Courts for nearly six years, but has been slowed down by starting in California and then being transferred to Texas and Judge Miller’s court.
While the judge did not order any change in the current policy, he did reject a government request to put his decision on hold, thus making it currently binding as a statement of constitutional law.