The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a decision issued on Friday, Judge Gray Miller of the federal District Court for the Southern District of Texas ruled that the US government's system of mandatory male-only draft registration is unconstitutional. The case was brought by the National Coalition for Men (a mens' rights group that has long opposed male-only draft registration) and two individual men, who are required to register under current law.
The United States has not had a military draft since the early 1970s. But federal law requires men between the ages of 18 and 25 to register for "selective service" so that will be available to be drafted in the event the draft is ever reinstituted. In the 1981 case of Rostker v. Goldberg, the Supreme Court upheld the constitutionality of male-only draft registration against a challenge arguing that it should be struck down because it discriminates on the basis of sex. However, since then the situation has changed greatly, as the Pentagon has opened up virtually all combat positions to women.
As Judge Miller explains in his opinion, this change undercut the Rostker decision's main rationale for upholding male-only draft registration, which was that male draftees are far more valuable to the armed forces than female ones, due to the fact that the latter could not serve in combat:
In the nearly four decades since Rostker,… women's opportunities in the military have expanded dramatically. In 2013, the Department of Defense officially lifted the ban on women in combat…. In 2015, the Department of Defense lifted all gender-based restrictions on military service… Thus, women are now eligible for all military service roles, including combat positions.
Therefore, although "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies," Rumsfeld, 547 U.S. at 58 (quoting Rostker, 453 U.S. at 70), the Rostker holding does not directly control here. The dispositive fact in Rostker—that women were ineligible for combat—can no longer justify the [selective service system's] gender-based discrimination…
[W]hile historical restrictions on women in the military may have justified past discrimination, men and women are now "similarly situated for purposes of a draft or registrationfor a draft." Rostker, 453 U.S. at 78. If there ever was a time to discuss "the place of women in theArmed Services," that time has passed. Id. at 72. Defendants have not carried the burden of showing that the male-only registration requirement continues to be substantially related to Congress's objective of raising and supporting armies.
Under Supreme Court precedent, sex-based classifications are generally subject to heightened "intermediate scrutiny," which means they must be "substantially related" to the achievement of an "important" government interest. Since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies, making intermediate scrutiny almost as stringent as the "strict" scrutiny applied to laws that discriminate on the basis of race and ethnicity. Most notably, the Court 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 there are obvious parallels between the two situations.
Judge Miller correctly concluded that the government's other arguments for male-only draft registration don't pass intermediate scrutiny. For example, he rejected the claim that sex discrimination here is justified because men are, on average, bigger and stronger than women. The Court rejected similar arguments in US v. Virginia. As Miller points out, size and strength are less significant in many positions in modern armies than in earlier eras. In addition, the armed forces have the option of setting gender-neutral physical requirements for potential draftees. While fewer women than men are likely to meet those requirements, that fact does not justify a categorical exclusion of those women who can meet them. Indeed, the Pentagon already has such requirements for a variety of positions within the armed forces.
Friday's ruling is not surprising. Indeed, I have been predicting since the new Pentagon policy began in 2013 that the abolition of rules barring women from combat roles in the armed forces was likely to eventually lead to the invalidation of male-only draft registration. It took this long for a court to make such a ruling mainly because a number of previous lawsuits suffered setbacks on procedural grounds or are still ongoing.
While most of Judge Miller's analysis strikes me as absolutely on target, he may underrate the continuing relevance of Rostker. While that decision was largely premised on the fact that female draftees were less useful to the military than male ones due to the former's exclusion from combat roles, it was also based on special deference to Congress on defense policy issues. Justice William Rehnquist's majority opinion emphasized 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. Rostker could potentially be read to justify applying such heavy deference to other possible rationales for exempting women, even perhaps ones that Congress gave little or no consideration when it adopted male-only draft registration.
It is, therefore, possible that Judge Gray's ruling will be reversed by the court of appeals. But if that happens, there is a strong likelihood that the Supreme Court will eventually reverse Rostker or modify it to bring it in line with more recent Supreme Court sex-discrimination decisions. The days of male-only draft registration are likely to be numbered.
Contrary to some initial media reports (since corrected), Judge Gray's decision does not require the government to impose mandatory draft registration on women. Indeed, the ruling does is just a "declaratory judgment" and does not impose any injunction on the government at all. In the short run, therefore, it will have little effect beyond allowing the two individual plaintiffs to avoid registering for the draft without fear of punishment.
But, assuming it is not overturned on appeal, other plaintiffs can likely use this ruling to secure a more general decision against the male-only draft. When and if that happens, the courts could potentially issue an injunction ordering either the extension of draft registration to women or its abolition for men. I believe the latter is the more likely outcome, since it would impose far less of a burden on both the government and private individuals. Either way, the ultimate choice between the two remedies would be in the hands of Congress, which can enact a new law embodying either of them.
In my view, by far the best option is to abolish mandatory draft registration for both sexes. That would simultaneously promote both liberty and equality. It would end one of the last examples of open sex-discrimination in federal government policy, while also freeing both men and women from the threat of forced labor.
Judge Gray's decision mentions the ongoing deliberations of the National Commission on Military, National, and Public Service on the future of the draft and other forms of "national service" (the government tried to use them as a justification for dismissing the case on procedural grounds). Back in October, I testified before the Commission. My testimony outlined both constitutional and moral reasons for rejecting mandatory national service of any kind.