The expanding role of women in combat and the future of male-only draft registration

|The Volokh Conspiracy |

Male-only draft registration is one of the last bastions of open sex discrimination in US government policy. Under current law, nearly all men between the ages of 18 and 25 are required to register for "selective service," but women are not. But the Pentagon's recent decision to allow women to serve in virtually all those combat positions previously closed to them suggests that the days of male-only draft registration are likely to be numbered. I summarized the reasons why in this 2013 post written after a previous expansion of the range of combat positions in which women are allowed to serve:

In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration in part because women were barred from combat roles, and female draftees are therefore less valuable to the military than male ones would be. In the thirty years since then, more and more combat roles have been opened up to women, and the Pentagon's most recent decision is likely to eliminate most if not all remaining gender-based restrictions. So that rationale for a male-only draft is undercut.

But then-Justice William Rehnquist's majority opinion also relied heavily the courts' "lack of competence" on national security issues and the consequent need for "healthy deference to legislative and executive judgments in the area of military affairs." That deference might justify upholding male-only draft registration even if all or most combat positions are open to women….

Lower courts applying Rostker could… still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due, that 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 And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military.

Since I wrote that post, at least two cases have been brought to challenge the constitutionality of male-only draft registration: One brought by the National Coalition for Men, which is currently before the Ninth Circuit, and another brought by a teenage girl in New Jersey (who claims that the status quo actually discriminates against women, as well as men). One or both of these lawsuits might fail on procedural grounds, particularly, the New Jersey case (in which the government could argue that the plaintiff hasn't actually suffered any harm, and therefore lacks standing). But, sooner or later, a case of this type is likely to be decided on the merits. And when that happens, I think it is quite likely that male-only draft registration will be struck down Rostker will get distinguished or overruled.

Back in October, Army Secretary John McHugh suggested that "true and pure equality" between the sexes might require forcing women to register for the draft, along with men. But there is another way achieve gender equality in this field: Simply abolish draft registration for men and women alike. That's exactly what would happen if a court were to strike down the current male-only draft registration system. Such a decision would invalidate the present selective service system, but without forcing the government to adopt a new, gender-neutral one. Only Congress could do the latter, and I am skeptical that it will have the political will to do so in an era where both the majority of the general public and an overwhelming majority of recent veterans oppose the return of conscription.

Abolishing draft registration is the best way to combine gender equality with liberty for men and women alike. Both sexes would be equally liberated from the prospect of forced labor imposed by the state. For reasons I summarized here, in addition to being a severe infringement on liberty, conscription reduces the quality of the armed forces, is economically inefficient, and makes it more likely that military commanders will squander lives in wartime. Both men and women should be allowed to serve in the military on an equal basis, in any positions for which they are qualified. But neither should be required to do so.

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