The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminate on the basis of sex [HT: Elie Mystal of Above the Law]:
A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.
"With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies," the complaint states. "Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering."
Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.
Once she clicked "female" during the online registration process, however, the website prevented her from registering….
E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.
Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.
"If the two sexes can fight and die together, they can register together; if not, then no one should have to register," the complaint states.
More information about the lawsuit is available in this article.
I predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for selective service, rather than by women excluded from doing so). The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions. Obviously, that logic is no longer valid. I also noted other reasons why the Court might overrule or at least severely limit Rostker if the issue came before it today:
Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due [to federal government] that the issue is not a slam dunk. If the issue gets to the Supreme Court however, I'm far from certain that Rostker wouldn't be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military. If the Pentagon sticks to its new policy on women in combat, I think it's likely that some male plaintiff will bring a new challenge to the selective service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled. For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts taking a strong line against sex discriminatory laws.
I would add that, since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies. Most notably, it invalidated the exclusion of women from the Virginia Military Institute in the 1996 case of United States v. Virginia. The exclusion of women from a military college is not exactly the same as their exclusion from draft registration. But the two situations have obvious similarities.
There is a chance that this case will end up being thrown out on procedural grounds. A court could potentially rule that women exempt from draft registration don't have standing to sue because they don't actually suffer any harm as a result (draft registration is usually considered a burden, not a benefit). This is one of the reasons why I thought a case would be more likely to be brought by men subject to draft registration than by women exempt from it. Also, a court might deny the plaintiff's bid to certify the case as a class action on behalf other similarly situated women. But if the case does go forward, there is a real chance it will ultimately result in the invalidation of male-only draft registration.
To avoid misunderstanding, I should emphasize that I do not support either drafting women or forcing them to register for a possible future draft. But I also oppose drafting men. Conscription is both a severe infringement on individual liberty, and tends to reduce the quality of the military relative to an all volunteer armed forces. Ultimately, the best way to avoid conscripting women is to not have conscription—or draft registration—at all. By taking that step, we could simultaneously reduce the likelihood that the draft will be reimposed in the future and eliminate one of the last bastions of open sex discrimination in government policy. In my view, a decision striking down male-only draft registration is more likely to lead to abolition of draft registration altogether than to its extension to women.
UPDATE: For some reason, the original version of this post had an incorrect link to my 2013 post on the constitutionality of male-only draft registration. I apologize for the mistake, which has now been fixed.