Federal Judge Rules Male-only Draft Unconstitutional

Now that women are allowed into all combat roles, the rationale for excluding them from Selective Service has evaporated.

USA Today (“With women in combat roles, a federal court rules the male-only draft unconstitutional“):

A federal judge in Texas has declared that the all-male military draft is unconstitutional, ruling that “the time has passed” for a debate on whether women belong in the military.

The decision deals the biggest legal blow to the Selective Service System since the Supreme Court upheld the draft in 1981. In Rostker v. Goldberg, the court ruled that the male-only draft was “fully justified” because women were ineligible for combat roles.

But U.S. District Judge Gray Miller ruled late Friday that while historical restrictions on women serving in combat “may have justified past discrimination,” men and women are now equally able to fight. In 2015, the Pentagon lifted all restrictions for women in military service.

The case was brought by the National Coalition For Men, a men’s rights group, and two men who argued the all-male draft was unfair.

Men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits like federal employment and student loans. Women cannot register for Selective Service.

The ruling comes as an 11-member commission is studying the future of the draft, including whether women should be included or whether there should continue to be draft registration at all.

The National Commission on Military, National and Public Service released an interim report last month giving no hints on where it would come down on those issues. But commission chairman Joe Heck told USA TODAY, “I don’t think we will remain with the status quo.”

The government had argued that the court should delay its ruling until that commission makes its recommendations. But Miller said Congress has been debating the issue since 1980, and the commission’s final report won’t come until next year. And because the commission is advisory, there’s no guarantee that Congress will act, he said.

Judge Miller said Congress has never fully examined the issue of whether men are physically better able to serve than women. In fact, he noted in a footnote, “the average woman could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required. Combat roles no longer uniformly require sheer size or muscle.”

Quoting the Supreme Court’s ruling overturning bans on same-sex marriage, Miller ruled that restrictions based on gender “must substantially serve an important governmental interest today.”

The ruling strikes me as a no-brainer in terms of both our broader understanding of gender equality and changes in Defense Department policy. Miller went too far, however, in his punditry.

While we failed as a nation multiple times to pass the Equal Rights Amendment to the Constitution, judicial interpretations of the Civil Rights Act of 1964 and other statutes have rendered that all but moot. For all intents and purposes, women are fully equal under the law. While not yet subject to the strict scrutiny applied to distinctions based on race, gender distinctions are treated with a so-called “intermediate” level of scrutiny that’s considerably harder to survive than a simple rational basis test.

The all-male draft had survived this test because the courts have long held that the exigencies of military service and the judgments of the President as Commander-in-Chief and of the senior military leadership should be afforded considerable deference. Given that President Obama and the Defense Department fully opened the doors to every occupational specialty to women who could meet existing standards, there’s no longer a basis for lowered scrutiny.

While it’s presumably just dicta, having no legal force, the decision would have been stronger had Miller resisted getting into punditry. He has no especial expertise that renders his opinion as to the suitability of women for various combat specialties worth hearing. While I think it’s true that there are military tasks women are more likely to excel at than men on average, “sheer size and muscle” continue to matter a lot in most “combat positions.” Further, to the extent that we’re going to draft people into a future force for mass mobilization, we’re likely going to mostly need infantry soldiers. The experience thus far has been that very few women, indeed, have proven capable of meeting existing standards.

We’ll see what the Commission ultimately recommends. My instinct is that we should simply do away with the Selective Service system. We haven’t enacted a draft in almost half a century now despite multiple wars.

Update (Doug Mataconis): I’ve written about this issue myself several times — see here, here, and here — and largely agree with both James and the Federal Judge in this case, Gray Miller, who was appointed by George W. Bush. For those interested, here’s the opinion:

National Conference for Men… by on Scribd

FILED UNDER: Gender Issues, Law and the Courts, Military Affairs
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Steve says:

    This is a fantastic step forward for equality. Time for everyone to embrace the suck.

  2. Michael Reynolds says:

    This was the premise of my FRONT LINES trilogy. Of course in my version it was the SCOTUS in 1940, not some Texan in 2019.

  3. Kathy says:

    The draft should be abolished. Forced servitude is bad enough. Forced servitude with a much higher than normal chance of ending up maimed or killed is an abomination.

    Historical tidbit: In the early Roman Republic, citizens “owed” military service to the state, but had to provide their own weapons and gear (shields, boots, clothes, etc.) The poor were exempt, since they lacked the means to provide either weapons or gear for themselves.

  4. Tyrell says:

    @Kathy: I am certainly in favor of women serving in the military. I oppose a draft that could end up sending women to the front lines of combat. I don’t think the American people would have supported a women’s draft in the Vietnam War.
    Women have shown that they can equal men in military service as far as leadership, technical, and logistics abilities go. Women are excelling in leadership and other positions.
    Some roles are not feasible for women: “Why no women are in the Navy /SEALS” (Quora 10-17-17)The SEALS have extreme physical and mental training. Few men make the cut. Eventually a woman will make it.
    Also: “US Marines will not lower fitness requirements for women”. Women have been in the Marines since 1918. Now they make up 8% of the force. Not bad!
    There are a few misguided people and groups who want to believe that there are no differences at all between men and women. That is false.
    The draft itself was done away with under President Nixon. The registration requirement is still in effect.
    I think some officers are subject to recall after they are discharged, subject to certain conditions.
    A few years ago I remember a doctor who got a report for duty letter from the Army. He was in his 60’s. Finally, after much going through the “proper” channels they got it canceled.

  5. Slugger says:

    @Kathy: I have said this before. It seems to me that the nature of war has changed, and being a civilian is no protection from harm. We don’t have gallant chevaliers jousting on a field somewhere; we have assaults on cities as our mode of contemporary war. A non-combatant woman in Leningrad, Stalingrad, Warsaw, or a thousand other places was in the middle of the fighting. When Clinton bombed Belgrade or Bush (either one) bombed Baghdad, they did not drop men-only bombs. I don’t like war; I don’t like the draft, but I don’t think that the draft exposes women to much more hazard than routine war.

  6. grumpy realist says:

    @Slugger: That comment makes me wonder how much of our “ethics concerning war” have been shaped by the “wars” that went on in Renaissance Italy. Probably swiped from commentary by Bartolus or another jurist of that period. Anywhere else I think people knew damn well that there were no such things as “non-combatants” who were carefully safeguarded from the ravaging of soldiers and very little interest by either side to keep the peasantry safe. (Go read up on the Thirty Years War and what it did to the population of Germany, for instance.)

  7. Kathy says:

    @Slugger:

    When Clinton bombed Belgrade or Bush (either one) bombed Baghdad, they did not drop men-only bombs.

    True. But when a Roman legion laid siege to a city, they did not inflict men-only starvation. Nor did they kill only men when they razed Carthage or Palmyra.

    On the other hand, how many cities in the US, Canada have been bombed in the last 150 years? Or Mexico since 1920?

  8. Boyd says:

    Even when I, of my advanced age, registered for the draft at the hind end of the Vietnam War, I was in no danger of being drafted. Now, some 40+ years later, our Selective Service is a useless relic of a bygone era.

    End draft registration now. It hasn’t served a useful purpose for decades.

  9. NoOil4Pacifists says:

    In my day as an appellate lawyer, District Judges didn’t attempt to overturn Supreme Court precedent.

  10. @NoOil4Pacifists:

    What Supreme Court precedent did Judge Miller attempt to overrule in this case?

  11. NoOil4Pacifists says:

    Plainly, Rostker v. Goldberg, 453 U.S. 57 (1981). The Opinion substitutes its judgment for both Congress AND Court. In footnote 5, it employs use of a bill that never passes to bootstrap toward what the Judge believes Congress should enact as the correct law.

    Further, although the Judge, properly, declares the plaintiff’s claim must survive strict scrutiny, he doesn’t apply that test in practice. Cf. Rehnquist, J., 6-3 Opinion for the Court in Rostker (which Blackmun and Stevens joined), citing numerous cases under Art. I, Sec.1, cls. 12-14 (Congressional war and law of war authority). See 453 U.S. 64-72. In contrast, on page 15, Judge Miller relies on Justice Marshall’s DISSENT in Rostker to reach a “factual” finding that fewer women would enlist if Selective Service continued to be limited to men. This discards the entire concept of deference to Congress, especially when acting with explicit Constitutional powers.

    Judge Miller’s conclusion gives the game away:

    In short, while [sic] historical restrictions on women in the military may have justified past discrimination, man and women are now “similarly situated for purposes of a draft or registration for a draft.” Roster, 453 U.S. at 78. If there was any time to discuss “the place of women in the Armed Sevices,” that time has passed. Id at 72.

    Choosing the “right time” is a power Constitutionally delegated to Congress. Congress made its choice. The Supreme Court upheld it. Congress could change it—and Doug, and others are free to lobby it. The Supreme Court likely would uphold it. But Judge Miller’s errant Opinion elevates his personal view over both the Legislature and Supreme Court precedent. Miller is wrong, and the decision should and will be reversed.

    It is up to Congress to change the law. True Conservatives abhor this sort of legislating from the bench.

  12. James Joyner says:

    @NoOil4Pacifists:

    It is up to Congress to change the law. True Conservatives abhor this sort of legislating from the bench.

    This is my general view as well but don’t see how it applies here. Nearly five decades of statutory law and several decades of judicial interpretation of the 14th Amendment’s Equal Protection Clause have led to a very high burden for treating women differently. SCOTUS, rightly in my judgment, ruled that this burden was satisfied vis-a-vis the draft because of our historical exclusion of women from combat roles in the armed forces. That justification has been rendered moot.

  13. NoOil4Pacifists says:

    Courts cannot render Congressional judgements moot so easily under strict scrutiny. Miller had almost no discussion of the caselaw deferring to Congress. And his opinion sounded like—as you said—a policy brief: dicta.

    And you have your equal protection tests wrong: the applicable test here is strict scrutiny, due to deference to Congressional judgements about the military. The test applicable women neither is applicable nor strict scrutiny—it is intermediate scrutiny, as any casual reading of Roskter would have informed you—and Miller.

  14. James Joyner says:

    @NoOil4Pacifists:

    And you have your equal protection tests wrong: the applicable test here is strict scrutiny, due to deference to Congressional judgements about the military. The test applicable women neither is applicable nor strict scrutiny—it is intermediate scrutiny, as any casual reading of Roskter would have informed you—and Miller.

    That doesn’t make any sense. I noted in the OP that discrimination on account of sex was subject to intermediate scrutiny. But there’s no “strict scrutiny” standard for deference to Congress. And Congress has legislated on the issue since Rokster: repealing the “risk rule” in 1992. It’s odd to me that Congress hasn’t gotten more involved in the decisions since then which gradually and then completely removed restrictions to women in combat; but they’ve certainly deferred to the Executive on the matter without using their many tools to object.

  15. Paul L. says:

    @James Joyner:
    The 14th Amendment does not apply to white people.
    Schuette v. Coalition to Defend Affirmative Action
    https://youtu.be/maXIpCNsaOo?t=2585

    Antonin Scalia

    My goodness, I thought we’ve — we’ve held that the 14th Amendment protects all races.

    I mean, that was the argument in the early years, that it protected only — only the blacks.

    But I thought we rejected that.

    You — you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
    Shanta Driver

    I think it is — it’s a measure that’s an antidiscrimination measure.
    Antonin Scalia

    Right.
    Shanta Driver

    And it’s a measure in which the question of discrimination is determined not just by — by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.
    Antonin Scalia

    And unless that exists, the 14th Amendment is not violated; is that right?

    So if you have a banding together of various minority groups who discriminate against — against whites, that’s okay?
    Shanta Driver

    I think that–
    Antonin Scalia

    Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities?

    Any case?
    Shanta Driver

    –No case of yours.

  16. NoOil4Pacifists says:

    @James Joyner: My mistake: I didn’t unpack it well enough. The strict scrutiny in Rostker was the deference owed to control and operation of the military (a Congressional function). No intermediate scrutiny was involved in the Majority Opinion.

  17. James Joyner says:

    @NoOil4Pacifists: But the whole reasoning in Rostker revolved around the exclusion of women from combat roles extant in 1981:

    Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops. The Senate Report explained, in a specific finding later adopted by both Houses, that, “[i]f mobilization were to be ordered in a wartime scenario, the primary manpower need would be for combat replacements.” S.Rep. No. 96-826, p. 160 (1980); see id. at 158. This conclusion echoed one made a year before by the same Senate Committee, see S.Rep. No. 96 226, pp. 2, 6 (1979). As Senator Jepsen put it, “the shortage would be in the combat arms. That is why you have drafts.”

    […]
    Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. § 6015 (1976 ed., Supp. III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U.S.C. § 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.” The Army and Marine Corps preclude the use of women in combat as a matter of established policy. See App. 86, 34, 58. Congress specifically recognized and endorsed the exclusion of women from [p77] combat in exempting women from registration. In the words of the Senate Report:

    The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee. . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy.

    S.Rep. No. 9826, supra, at 157. The Senate Report specifically found that “[w]omen should not be intentionally or routinely placed in combat positions in our military services.” Id. at 160. See S.Rep. No. 96-226, supra, at 9. [n12] The President expressed his intent to continue the current military policy precluding women from combat, see Presidential Recommendations 3, App. 34, and appellees present their argument concerning registration against the background of such restrictions on the use of women in combat. [n13] Consistent with the approach of this Court in Schlesinger v. Ballard, 419 U.S. 498 (1975), we must examine appellees’ constitutional claim concerning registration with these combat restrictions firmly in mind.

    The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them.

    All of that has been OBE.

  18. DrDaveT says:

    Further, to the extent that we’re going to draft people into a future force for mass mobilization, we’re likely going to mostly need infantry soldiers.

    You think? I think we’re going to need mostly satellite and unmanned platform operators…

  19. James Joyner says:

    @DrDaveT:

    I think we’re going to need mostly satellite and unmanned platform operators…

    I think we’re unlikely to fight an all-out war with China because the costs in blood and treasure would be enormous but that, if we do, it’ll likely be fought with existing forces in a rather high tech way. But that’s not a mass mobilization war that would require a draft.