Military

Federal Court Rules Male-Only Draft Registration Is Unconstitutional

If the decision holds up on appeal (which is quite likely), Congress would have to choose between expanding draft registration to women or ending it completely.

|The Volokh Conspiracy |

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.

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  1. Proud supporters of equality can find the National Coalition For Men at NCFM.org where this and other discriminatory misandrist policies towards men are addressed.

    1. Women wanted ‘equal rights’ and this is one of those things that would make men and women ‘equal’.

      The physical standards in the military for men and women should be the same too. More women would wash out but we don’t need weak men or women in the military.

      1. re: “The physical standards in the military for men and women should be the same”

        Yes, they should but what that means is a lot harder than it sounds. The primary physical standard desired by the military is not task-oriented (the ability to lift so many pounds or run so many miles) but is “fitness”-oriented. Fitness is the measure that correlates with survivability under conditions of duress or after injury.

        Measuring “fitness”, however, is really challenging. It gets even harder when you have to come up with a test that doesn’t require highly-trained doctors and expensive equipment. What the military has come up with are pretty decent proxy measures. If the average adult male can do so many pushups, so many situps and run so fast, he’s probably pretty fit. And we can do all those tests with no special training and no equipment more expensive than a stopwatch.

        Now, however, the challenge becomes that an average adult woman with the same level of “fitness” will nevertheless perform differently on those proxy measures (pushups, situps and running). So the choices are to a) hold to identical standards for the proxy measures despite the fact that this would exclude some soldiers who would qualify if we could directly measure fitness or b) tweak the standards for the proxy measures so they line up to equivalent levels of fitness.

        1. While your point that fitness can be challenging to determine the standards for, our military has centuries of experience to draw from.

          There is nothing wrong with tweaking the physical standards up and see what happens.

          Running, situps, pushups, and calisthenics are tried and true military tests of basic physical fitness. You don’t need doctors or special equipment.

          Running 2 miles, 50 situps, 25 pushups are a good start. Most women have horrible upper body strength. They cannot do more than 5 non-girl pushups.

          1. You’re missing the point, love. Running, situps and pushups are not the “tried and true tests” of fitness, they are proxies for the actual measure. They’re pretty good proxies and, as I did say, they don’t require doctors or special equipment but they are still only proxies for the actual thing we want to measure.

            Upper body strength is not, by the way, the actual measure either. Compared to most American soldiers, the Viet Cong also had horrible upper body strength. The same was true during WW2 of many Japanese. They were nevertheless quite fit and often very capable soldiers. Upper body strength is important for some tasks (such as 13B cannoneer) but is not a very good predictor of overall fitness.

            1. Not sure what you want to measure then.

              Man-for-man the Viet Cong could not beat an American man. Same thing with the Japanese.

              So after all the advantages of American firepower were taken away, the American still beat their opponents on the battlefield. This was the same way against Germans too.

              Stats about hand-to-hand combat are not lengthy but they are covered.
              Hand-to-Hand Combat and the Use of Combatives Skills: An Analysis of United States Army Post Combat Surveys from 2004-2008

              1. FWIW, Current minimum standards (and the test is probably changing) are 2 minutes each to complete 42 Push-ups, 53 Sit-ups within and a two mile run in 15:54 for men; 19 Push-ups, 53 Sit-ups, and a two mile run in 18:54 for women, no rest during events (must remain in upright position if paused) and 10-20 minutes between events. These minimum requirements decrease gradually with age. Additionally, certain courses and units have higher official or unofficial standards.

                I think the point being made is firstly that upper-body strength is neither the sole nor single most important measure of fitness; hence, while certainly important in certain contexts (hand-to-hand combat, canon crew member, etc) needs to be viewed in concert with other abilities as well (e.g. the ability to conduct a long ruck movements). And secondarily, that the ability to do Push-ups (or pull-ups in the marine case) doesn’t really tell us everything there is to know about an individual’s upper body strength as different muscle groups are used in different ways depending on the specifics of the task demanded. That said, in practice people who can complete that many push-ups are probably going to be able to complete many other tasks involving upper-body strength even if two people with the exact same PT score will differ somewhat in the abilities depending on the specifics of the assigned duty.

                1. It is interesting that the discussion about the utility of various proxies has cropped up here given current and previous (failed) efforts to revise the test over the last four decades. It is widely understood that the current test was selected with simplicity and ease of administration as key features (and indeed the only requirements are level ground, a stop-watch, and known length track), at the expanse of granularity and precision in measurement. This was to a certain extent a reaction to earlier mid-20th century tests that required specialized equipment or complex courses to conduct.

                  However, efforts to supplement or replace the test have foundered in the past because evaluation of the data revealed that the same people who did well on one test also did well on the other with very few exceptions, and if that’s the case why not stick with the simpler option.

                  Except now, after many failed efforts, the statisticians at the pentagon say they finally have a new test that provides a statistically significant amount of new data, with roll-out anticipated over the next year or so. Predictably this has reignited debate about whether this additional data is worth the added hazards, complications, and expense, with many expressing serious doubts.

                  Whether this will hold up in the long run is anyone’s guess, but it has progressed further into the implementation phase than any previous effort.

                  1. Messed up the link; you can laugh at me for sloppy html

                    Link

          2. It wouldn’t surprise me if most men couldn’t do more than 5 non-girl pushups either.

            1. Most 30+ adult men probably could not run a mile in under 15 minutes.

              We want a military that is not just what their civilian counterparts can do. We want military personnel that have the physical fitness to adapt to any situation and fight effectively.

              1. The physical requirements should be appropriate for the position.

                It would be nice to have everyone be as fit as a Ranger, but that unnecessarily limits the talent pool.
                Similarly with combat infantry requirements.

                If we’re talking draft, we shouldn’t be unnecessarily limiting people from support positions they can perform.

                1. This argument relies on an extremely limited view of what combat is, and how it can–unexpectedly!–involve the REMFs as well.

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      2. It is weird just how far progressive madness has spread. In an attempt toget even with the lunatic malevolence of modern feminism, some men seem to be celebrating a case which hinges upon the equivalence of men and women. But men and woman are not equivalent. And it is crazy to believe that they can function equivalently in tasks requiring physical strength or stamina. Israel drafts women and loses many to injury in training and operations, far far more than they do males, they also don’t place women into combat. Because they are sane and can see that women are not the physical equals of men, nor do men or the enemy treat female combatants the same as they do male combatants. Jealousy and sexual desires destroy unit cohesion, and men take risks to protect women. Our society will have chose whether to accept physical reality and mammalian reproductive biology that men and women are different and the law must accommodate this fact or whether to attempt through legislation and law enforcement, to try, no matter what the cost in misery, suffering and death, to create an alternative delusional reality where men and women are the same and can change sex at will. Why would we discriminate less in what sex should perform certain activities, like carrying heavy burdens and killing people, than we do in choosing what sex to partner with should we wish to reproduce? In both cases we would discriminate in favor the sex most capable of performing the desired task. Anything else is insane.

    2. Thanks for the info, Dadlobby. I will bookmark the NCFM website.

  2. Not to mention that now men are women, and women are men, so who can tell who should register?
    I cannot foresee a scenario where draftees could be effective with today’s weapons and tactics. No cannon fodder needed, just end the slavery.
    Wait, what is the official Reason phrase? Fuck off slaver?

    1. Well, you probably want a comma in there.

      Fuck off, slaver.

      Fuck, off, slaver!

      Fuck off-slaver!

      Yes, I think you want some punctuation.

  3. …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?

    The fact that the Pentagon has opened up almost all combat positions to women does not imply that men have ceased to be far more valuable to the armed forces than women.

    1. Not almost all; all, per TFA.

    2. Oh there was that, plus the fact that people don’t care nearly as much about what happens to men, as compared to women. You know it’s true.

  4. One can no longer assume the gender of a person since states are now issuing birth certificates without an assigned gender. How then do we administer this to those who are not assigned?

    The form itself is sexist since it also doesn’t allow for non-assigned genders, fluid genders, or non-binary gender and would be considered discrimination against those who do not fall into male/female genders.

    It is, and always was discrimination.

    Even if the opening of almost all combat positions to women doesn’t imply that men have ceased to be far more valuable, it does remove the ability to utilize ‘that’ as reasoning to continue the practice.

    End it or enact it upon everyone.

    1. I’m a bit surprised it has taken this long, as the argument has been made at least since I was young, when woolly mammoths ruled the plains and there was still a draft.

      1. But, as the OP clearly states, a huge difference between now and when I was of Selective Service age is that women now can serve in just about all functions in military service…but for decades, they were not allowed in combat roles at all, or only in extremely limited roles. So, sex-based discrimination made more sense (at least, enough sense to defeat judicial scrutiny). Now–as the OP notes–that argument has gone the way of the dodo.

      2. “I’m a bit surprised it has taken this long”

        Strange how feminists have been so unsuccessful fighting for equality of *responsibility*.

  5. The military is essentially 90% bureaucracy and support today anyway. This ain’t your grandpappy’s WWII or even your pappy’s Vietnam war army anymore. A ‘soldier’ today is in the vast majority of cases what would have been called the baggage train or civilian in previous eras, more likely to end up filing paperwork in omaha or gay paris than be in any real danger let alone getting fired on by the enemy. Thats why its much easier to play political of dressup women as soldiers these days….aside from all the sexual scandals that inevitably result from mixing sexes in confined conditions that everybody ignores.

    For some reason though…maybe the steady stream of fictional media people consume, there’s still this widespread perception that the average Suzie Q is slogging through the Jungles of the Mekong Delta gunning down Charlie with dual wielded LMGs.

    If we went back to earlier times where physicality was needed and where the military was nowhere near as respected or worshipped as it is today, we’d probably see this drive to get GI Jane in equal proportions dropped in a hot minute.

    The future military will a gargantuan support apparatus with robots and a handful of elite operators doing all the actual fighting. Neither the average woman (or man for that matter) will really needed any longer, at least as long as we remain on our current trajectory of military development, so they can go off and be pawns in political theatre instead.

    1. A ‘soldier’ today is in the vast majority of cases what would have been called the baggage train or civilian in previous eras
      The modern term is REMF.

    2. You know what the medical term is for women on ships?

      Mother

    3. I would imagine if a conflict were to break out on a scale that would require the draft to reinstituted we would see a much larger percentage of draftees in combat roles, since that is where we would need them

      1. Considering how our volunteer military can beat the shit out of any country in Earth, we’d only need to reinstate the draft if we were being invaded by aliens. And seriously bad ass aliens at that, if they’ve got the balls to fuck with the US.

        1. I wouldn’t be so confident against Russia or China, or even India, Vietnam, or either of the Koreas if we had to fight them on the ground. And that’s just single countries, alliances of multiple countries could give us a run for our money even on our home turf

          1. Oh, you wouldn’t? Have you informed the President and the Joint Chiefs of Staff about your expert opinion? I’m sure your doubts about our military superiority would significantly alter American Foreign Policy.

            “alliances of multiple countries”

            The US is the only major power that has “alliances of multiple countries”

            We can beat the shit out of any country in Earth by ourselves. With our “alliances of multiple countries” we and our allies, which constitute 60% of the planets military spending, could beat the shit out the rest of the world.

            1. LiborCon, check out the National Defense Strategy, the Joint Chiefs agree with Kevin Smith.

              1. And the Warsaw Pact was a terrible foe in Europe, their tanks, man! until the Soviet Union collapsed and the Pentagon said they weren’t really much of a threat at all.

                None of these places have the productivity of the US. The only concern are atom bombs. That’s it.

          2. Kevin, that’s why we WOULDN’T fight them on the ground – we couldn’t win that fight.

            Why would we ever want to or even try?

            Ground war any where in Asia?

            Pffttt…

            1. “we couldn’t win that fight.”

              It depends, an invasion of China itself. Of course not, even Japan with a huge force against a weak opponent could not.

              Korea? Probably, modern US combined arms would slaughter 1950 Stalinist mass attack tactics.

            2. The most famous of the classic blunders is “never get involved in a land war in Asia,” but only slightly less well-known is this: “Never go in against a Sicilian when DEATH is on the line!”

    4. So for those military roles that require (say) upper body strength beyond the norm for females, we should only allow men in those roles?

      For example the loader position in an M1 Abrams tank requires lifting a shell that weighs 46 lbs, and has to be removed from a rather cramped storage location, rotated in several axis and slammed into the breech of the 120mm gun….over, and over, and over, and over again, with speed and accuracy to maximize the life of the crew. And maintain the tank, including replacing the track.

      Or, an artillery crew (155mm) has to be able to assemble, pick up and load the (combined 50kg) weight of the cartridge and propellant, over and over again. And move the gun and what not.

      Now, the problem with assigning only men to positions like this is …. equality. Most women simply cannot physically perform these jobs. Some can, but not in 50% of the needed numbers. And changing the conditions is not in the picture right now.

      When the robots fight, we’ll let you know.

      1. How about a physical test and anyone – he, she, or zhe – who passes the test gets the job?

        1. I am 100% in favor of this standard. No gender norming. But then, if (say) women are predominantly in positions that don’t require that kind of strength, and men are thereby over represented, what happens to the men? They die in greater numbers…

          Likewise, certain specialties have better or worse promotion opportunities. This leads to unhappiness.

          Lots of problems, no matter what decision (or lack of decision) is made.

      2. Yeah, Flight,
        I don’t find that persuasive. Given your job description and the absolute necessity for strength, dexterity, and endurance, I have no doubt that no military unit would assign men who were not physically able to do the task. So, if 18 out of 100 men can physically do it, but only 2 out of 100 women…so what? You’ll end up with 90% men and 10% women in that role.

        I do not know anything about firefighters. But I assume that women who weigh 108 lbs and cannot lift 100 lbs are not put into the roles where lifting an average adult is essential to the job duties. (If I’m wrong–and God, I hope not!–someone please correct me . . . ideally with a link to supporting data/documentation.)

        1. You literally asked for it: you’re wrong.

          How wrong depends on where the firehouse is: my local has 3 women, all EMT certified, two of them are as big as the men (and pass the male tests) and the third weighs 100 pounds soaking wet and can’t carry a heavy man….. but she can drag a 300 pound dummy over a window sill and down the ladder without dropping, and she’s the fastest climber, so I’m glad we have her.

          1. Thanks Robert. Always happen to learn new information from people with specialized knowledge.

          2. I don’t know where you got that information but it sounds like bullshit, to me.
            I spent 31 years in a medium-sized city fire department. 20, or so, of them with women in the job.
            NONE of them EVER came close to the physical abilities of the men.
            The first ones had to be “selectively certified” by federal judge to be hired over the roughly 1500 men ahead of them, from a physical test that incorporated the tasks one would perform at a normal fire scene – lifting ladders, dragging hoses, etc.
            A test that was drastically watered down, so as to present the veneer that the women hired “passed the male test”.
            There are some things women, in almost every case, are not cut out for. To claim otherwise is nothing but PC nonsense.

        2. Yeah, you’re wrong. Firefighters are typically rated as FF1, FF2…depending on their experience and training. “They are not rated as OK, Charlie…you’re the guy who lifts people, Sally, we’ll let you stand at the engine and turn the water on and off”.

          When I first got to my first operational assignment in Germany (1978) it was right as the first females were being introduced into formerly banned specialties. I recall one female firefighter who was so small she literally could not step up onto the tailboard of the fire engine: It was above her waist. She wore an XS bunker suit, with the sleeves and legs rolled up.

          I have no idea what kind of firefighter she was…but I am pretty damned sure she was not going to be the person who could pull my unconscious body out of the cockpit of a burning fighter. Yet, that was one of her nominal jobs, and she was taking the space that a person who could do that job would have. I don’t know if she could throw a 30′ ladder up, either….but I’d bet no.

          BTW she didn’t serve a full 2 year tour: She was injured on the job, and medically discharged from the Air Force. Which could happen to anyone, but especially a 5’nothing 100lb female.

    5. With respect, the bias of the military toward support and logistics functions goes a lot further back than you imply, AmosArch. Even in the Vietnam War, the ratio was 7 support to 1 combat soldier. Variations of that ratio go all the way back to the Romans.

      “Amateurs study tactics; professionals study logistics.” (sometimes attributed to Gen Omar Bradley but variations of that wording go at least back to Sun Tzu)

    6. Yeah, have you seen the figures fir today’s infantry combat loads?

  6. I won’t be surprised if the decision is reversed on grounds of standing or ripeness. At least in the DC Circuit, a plaintiff who doesn’t have standing to get injunctive relief also doesn’t have standing to get declaratory relief, and it’s hard to see how the plaintiffs here are facing imminent irreparable injury by having to register for a draft that hasn’t actually existed during the lifetime of anyone who is now required to register. The district court addresses this issue only by saying that discrimination is injury per se, but I wouldn’t bet that the 5th Circuit will agree with that.

    1. I believe the injury is the punishment for not registering.

    2. $250,000 or 5 years of your life in a cage is not a penalty?

      Or does it not count because no one is trying to enslave you *right at this moment* – they’re just reserving the privilege to do so at their convenience. Once enslaved – *then* you can seek relief. Oh wait, you can’t – because now you’re a slave.

      1. Are you so entitled that you expect to have all the rights and privileges that come with being an American without the responsibility of defending those rights?

      2. “because now you’re a slave”

        Libertarians are laughed at because they believe such things.

        Defending the US is not slavery.

        1. People like Aggy are free to run their mouths about whatever they want in large part due to the efforts of those of us who served. A lot of people like that have no concept of how different the world would be if the the US did not have such a powerful military.

          Vacuums, specially power vacuums, tend to fill quickly. And not always in benign fashion.

      3. When was the last person convicted of failure to register for the draft given that punishment?

        1. You can also be denied federal employment, grants, loans, state benefits, …

  7. As a 26-year US Air Force veteran, I say good.

    Women wanted to have ‘equality’. Complain about ‘male privilege’. Okaly-Doakaly! You’ve got your equality and privilege now, Sweetie!

    Of course, if the Republicans had a clue they’d introduce a bill to abolish Selective Service. Few if any in the military want draftees, and should some event occur where levee’s of troops are needed, enabling legislation can be adopted..and frankly the government already has the data they need.

    1. “Women wanted to have ‘equality’.”

      Which women? Some women? OK, they can be equal and register, but why coerce their less militant or more traditional sistren, just to score points?

      I have the hypothesis that, at a time the military doesn’t even want conscript *men,* the political classes will find a way to at least register both sexes, or put both sexes into some kind of makework “national service.” Again, just to score political points.

      1. Why coerce men?

        And you are correct: The military (speaking as a retired 26 year officer, most of which was line, not medical) has little need for draftees. The military of today is quite different than the military of the late 1960s. The draft in WWII was mainly to schedule men into the military, otherwise large tranches of 18 year old high school graduates would inundate the training pipeline every June. And two years (typical, non declared war draft term) is barely sufficient to learn a basic trade, much less be competent at their jobs.

        The defense of the nation (mine, anyone’s) is too damned important to be left to conscripts.

        1. Anyone’s? How would Israel, S. Korea, etc. defend themselves if they dispensed with conscription?

          1. Plus about 25 more…

            https://www.worldatlas.com/articles/ countries-with-mandatory-military-service.html [remove the space before ‘countries’…have to have that space, due to Reason’s idiotic 50 consecutive characters or less rule]

          2. “(mine, anyone’s) ”

            The US has 325 million people and hence have a large number of military age . We can rely on volunteers since we need such a small percentage of our people to do so.

            Its a luxury.

          3. That they think they need a draft isn’t the same as them actually needing a draft.

          4. No doubt they would defend themselves quite well….conscription is not necessary for them.

      2. ” but why coerce their less militant or more traditional sistren (sic), just to score points? ”

        Because those less militant sisters did not stop the radicals, and now face the consequences of that political choice. Sic Semper Tyrannis.

        1. +100

        2. Roger that!

        3. That analysis sounds fairly collectivist to me.

          1. @Eddy – National defense is collective by its very nature.

            1. Where’s the national defense justification for this:

              “those less militant sisters did not stop the radicals, and now face the consequences of that political choice”

              ?

        4. All those angry dyke activists are now reaping what they have sowed.

  8. “…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.”

    Why are we assuming that the government would choose the less burdensome course, let alone the less burdensome course for private individuals?

  9. 2018 FY budget for Selective Service, $23 million. Not much in the grand scheme of things, but every little bit helps. That doesn’t, of course, include the cost to 4 or 5 million people who turn 18 each year and have to take the time to register. Again, not much but …

    Now if we could find a few more programs that aren’t a part of Congress’ mandate or are useless at the present time, maybe we can start making a dent.

    1. I wonder how many 18-year olds actually do register. If student loans require proof of registration, that deprivation alone might supply standing.

      1. It’s been 20 years since I had to register, but I recall that you weren’t allowed to receive any government financial aid unless you registered. So you want a Pell grant? Federal subsidized loan? Some other form of aid? Better sign up.

      2. I can’t recall about “proof”, but I had to at least affirm that I had registered.

  10. The idea of unelected judges ordering people to war based on their personal opinions represents everything that the constitution was enacted to prevent. Only the political branches of government have authority to determine who goes to war and with whom.

    War isn’t fair. Who lives and who dies isn’t fair. What next, judges ordering the deployment of troups to rescue surrounded units because they think abandoning them isn’t being fair to them? Judges ruling that sending some groups in the first wave and others in the rear wave isn’t fair?

    War has nothing to do with fair. And if choices are to be made, the constitutionally designated officers of the United States are to make them.

    Besides, a lower court has no authority to overrule directly on-point Supreme Court precedent. If I were the Supreme Court I’d vacate and remand just to make that point.

    1. …this isn’t about ordering people to war.

      War being awful isn’t a get-out-of-jail-free card for state power.

    2. I take it you’ve read Catch-22.

    3. Yes, and the idea that just because the military has opened positions to women doesn’t mean that in the event of a draft there won’t be egregious disparities between men and women who are fit to serve in combat positions.

      1. Nobody ever mentions the ancient idea that women are being protected. Should I be fired for even bringing this up one last time before it is burned at sea?

        Just grab the bull by the horns and recognize the official reason was always just a cover story for this.

      2. Nobody ever mentions the ancient idea that women are being protected. Should I be fired for even bringing this up one last time before it is burned at sea?

        Just grab the bull by the horns and recognize the official reason was always just a cover story for this.

        1. Ze’s a witch, burn xer!

  11. Many years ago I had a discussion with a young, female colleague who fancied herself a feminist. I asked, “should women be allowed to server in combat if they choose to?” “Of, course,” she exclaimed. I said, “great, so that’s a choice. Men should be allowed to serve in combat, too, if they want to!” She looked puzzled. I pointed out that men were forced to serve in combat. I then asked if we should have affirmative action for women in positions of leadership and authority in business, education, and government. “Of course!” she exclaimed. Then I said that we should, then, have affirmative action for women in combat; that we should have only women in combat until the body count of women in combat equalled that of men, since the revolution. She was puzzled, and then rejected my proposal as “silly.” I was serious.

    1. I ask students a version of that question regularly and they invariably default to the claim that women should have a right to serve if they wish, but students tend to get flustered when I press them about women having a duty to serve just like men. Plato’s Republic sounds nice to feminists until they realize that women really will be treated equally in every way.

      And feminists are prone to ignore the obvious fact that enemy soldiers are not going to ask politely for consent before raping female soldiers who get captured.

    2. Women want the benefits of ‘equality’ of the sexes.

      They want paid time off for babies; a work-life ‘balance’; not do the dirty work like plumbing, septic, infantry; and not work nights, weekends, and swingshifts.

      1. loveconstitution1789 knows a lot about women. He learned about them from his Canadian girlfriend who you’ve never met but is totally a real person.

        1. Poor troll. He has never touched a woman.

          1. Sandbags, right?

      2. My body
        My choice
        Your responsibility

        It’s never been about equality.
        It’s always been more rights, not equal rights and responsibilities.

        #EndThePrisonGap
        #EndTheAlimonyGap

    3. Interesting!

      There have been daily articles in my regional newspaper lately that are blatantly racist. They denigrate whites with impunity. Particularly white males.

      I was drinking some coffee, staring out the kitchen window after reading a couple of those this morning. Especially one that justified affirmative action programs.

      I was wondering; when are we going to apply affirmative action standards to the NFL and NBA? And, if not, why not? This is something I’ve thrown out for discussion for years. And it’s always ignored by all.

      It’s only “fair” you know. ;-0

  12. I would have thought that the legal holding of an an on-point SCOTUS decision would trump fact changes, that it would only be up to SCOTUS (or as here, since it is a challenge to legislation, Congress) to judge that the facts had indeed changed.

    This despite the fact that I agree that the facts have changed, I simply care vastly more about process than I do about outcome.

    1. Do not the ‘fact’ changes reflect a change more in understanding than in external fact?

      Originalists may be unhappy, but this is center-mass what I think should happen.

      1. “center-mass what I think should happen”

        So wrong then.

    2. No need to ‘judge’ facts there.

      The Pentagon made the fact by opening combat positions to women.

      There’s nothing to judge (i.e. decide) here.

      It was simply an acknowledgement of a fact.

    3. Soronel is correct. SCOTUS has repeatedly told lower courts that it is not their prerogative, no matter how undermined they think the rationale of a previous SCOTUS decision is, to overrule it. Only SCOTUS can overrule SCOTUS.

  13. I think we should do away with the mandatory registration requirement and instead make it voluntary registration (i.e. the carrot method, not the stick method).

    If you register, then you should receive some benefits, maybe a $1000 tax deduction.

    And yes, open the voluntary registration to everyone.

    1. I actually think this sort of idea should be extended to the whole ‘national service’ thing – and should be initiated at age 16 – with the first couple of musters in that following summer.

      At core, these sorts of ‘reservists’ can replace a ton of full-time govt workers. Which makes govt much cheaper because some people are ‘making their contribution’ in labor/kind – and some are paying their taxes in cash. Those reservist activities would be the place where those necessary govt functions would observe/recruit their future full-time folks from. It is also the age where kids really do also need to understand what the work world is like – and most companies have completely abdicated that age group with the increasing use of credentialism as their screening device.

      Yes it could be voluntary rather than mandatory. And a combo of a tax credit that accumulates and some nominal cash/expenses is exactly what would incentivize it. A 4wk ‘individual training’ the first year – a 4 wk ‘unit training’ the second – a 4 wk ‘specialist training’ the third. Those are taking place while kids are still in mandatory school as well.

      And any company that actually gives a damn about a recruiting pipeline would be all over that as well – and would pay to participate. It could end up being a combo of militia muster, old-time volunteer civic association, and practical job fair rolled into one.

      1. Great idea.

        Which public service union will ever allow it to happen?

        1. The federal workforce is really old. Half are over 50. Nearly 14% are over 60. Less than 7% are under 30. If a way can’t be figured out to just let much of that age out gracefully, then we are a pretty dumb country.

          Hell we might even find that retirees are less interested in being put out to pasture than we currently think. A ‘retiree reserve’ might be the way to reform Social Security too – where they can ‘make their contribution’ in kind to earn back or offset the cuts that are inevitable. Makes for a nice cross-generational bookend as well.

    2. The feds only use carrots when sticks are unavailable; sticks are cheaper than carrots.

  14. No doubt there were skilled women archers, or for that matter those that could swing an axe, but no . . . superior technology does not make a warrior. Only a clueless progressive (Obama appt.) could reach such an ignorant conclusion in the face of thousands of years of recorded history.

    1. Unlike skilled women archers, you completely miss the point.

      1. This is about draft registration – which could be into any military position, not just combat positions.

      2. The Pentagon made the decision to open combat positions to women, not the judge. The judge simply acknowledged that fact.

      1. It should not be necessary to point out that any person in the military should be immediately available for a “combat position.” The “Pentagon” naturally acted under pressure from Progressive political appointees. At any rate, the whole idea flies in the face of recorded history.

        The fundamental problem if that an entire generation has been victimized by deluded progressive “educators.”

        1. It should not be necessary to point out that any person in the military should be immediately available for a “combat position.

          That’s a personal opinion of how a military should be run, not how modern militaries are run.

          1. Less military might be good for us all.

            Think about it.

      2. “The Pentagon made the decision to open combat positions to women, not the judge.”

        Opening up combat roles to women was not a military decision but a political one. Yeah equality!

        Women are not capable of serving in infantry combat. No army in world history has used women in infantry combat, other than in absolute extremis like the Israelis [very limited and briefly] in 1948.

        Why? Because armies need to win.

        1. Then your beef is with the military and not the judge or this case.

          1. Nope, the beef is with Progressive educators and their willing victims.

            1. How does it feel to be on the wrong side of history?

              1. Bad, but oblivious progressives need not expedite the inevitable decline and fall.

            2. The IDF has been infiltrated by American progressives!

        2. “No army in world history has used women in infantry combat, other than in absolute extremis like the Israelis [very limited and briefly] in 1948.”

          First, it would hardly be surprising that women weren’t significantly involved historically in war making since until the last hundred years, they were second-class citizens with no agency in how country’s were run or defended. Second, it’s wrong. Israelis have female combat soldiers today, not just fleetingly in 1948. Third, think about what the “absolute extremis[t]” point makes. If women were a drag on combat, you wouldn’t want them in dire situations. Yet when countries face the direst of dire situations, they recruit women in combat roles. The Soviets weren’t going to use women in combat until after Barbarossa, and replaced dead men with living women, including in combat roles (like snipers, famously).

        3. Opening up combat roles to women was not a military decision but a political one. Yeah equality!

          We have civilian control over the military in the U.S. All important decisions are political ones, not military ones.

          1. How old are you?

            We have such civilian control in theory. But in reality, the military has been known to go its own way a time or two.

  15. Much as I like the ruling from a policy standpoint, (Ideally resolved by abolishing the draft.) I’m really tired of the way the judiciary has set out to make the non-ratification of the ERA moot. The Constitution simply does not prohibit sex discrimination, save in the limited context of voting.

    1. So we can prohibit women from bearing arms? Free speech? Warrantless searches?

      1. There is no right to join the military.

        There is no right of women to join the military.

        The right of the People (men and women) to keep and bear shall not be infringed.

        The USA has made it a citizens’ mandate to serve if needed. Women were not needed except for nursing duties. That can change if we want it too.

        1. There have been women serving in the US military (in uniformed positions) in all wars since WWI. Other than that, you are correct.

          1. Correct and women have served the USA as nurses and support roles since the Revolutionary War.

            I am not discounting their contributions, I just hate the feminist delusions of being exactly equal to men.

            1. LC

              You are discounting.

              Support roles. If you think service such as medical is less of value than an infantry soldier that is just asinine.

              One ER nurse is worth at least 10x you, no matter how many push-ups.

              There are many roles and jobs in the military. Anyone who wants to serve should get an equal chance.

              In any case this lame draft registration should go away. If needed it could be started up again.

      2. No. Those are rights enumerated in the Constitution that apply to all citizens, men and women.

        In addition to those, the 14th Amendment has an Equal Protection Clause that requires the States to treat people equally (certainly on the basis of race), which the Supreme Court has imported as to the Federal Govt. regarding the federal govt.under the Fifth Amendment Due Process Clause.

        Registering for the draft does not by itself violate anyone’s rights under the Bill of Rights. The only issue is whether the unequal treatment of men vs. women violates the Equal Protection Rights (as reverse incorporated in the Due Process Clause).

        1. The 14th amendment, as recently interpreted, is a terrible addition to the Constitution.
          “Equality” was never intended to be a guarantee of the Founders, yet it has replaced liberty as what government is prevented from forcing upon its citizens.
          Now, so long as it is dome “equally”, anything the government does is allowed, while these actions invariably restrict our liberty.
          The odious 14th has turned the Constitution on its head.

  16. Somin says:

    “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.”

    Which would work great until the Russians, or Chinese kick the door in, or a Praetorian Guard rules the country.

    1. “Which would work great until the Russians, or Chinese kick the door in, or a Praetorian Guard rules the country.”

      Yes, the draft will save us. Just like conscription saved the French in WW2. The only thing standing between this country and certain ruin is paperwork for teenagers.

      1. When duty, honor, and country become obsolete concepts (because of progressive / globalist indoctrination) from a historical perspective the game is already over.

        Guess from the French example you think it’s better to give up without a fight.

        1. “When duty, honor, and country become obsolete concepts…”

          You’re the one arguing for conscription. An argument in favor of our (currently) all-volunteer army is that it already selects for sense of duty, honor, and country. It doesn’t do the military apparatus or national defense any good to have a bunch of angry conscripts fragging officers.

          The argument against conscription is that a volunteer army is more effective. Reliance on compulsory service is a weakness that we don’t need.

          1. Only a Progressive would not perceive the irony of complete reliance upon the honor of others to escape the duty of serving this country.

            1. (1) I’m not a Progressive, however defined. (2) This isn’t irony. You’re just describing a free-rider problem. (3) It is the overwhelming opinions of the American military authority that conscripts make lousy fucking soldiers relative to volunteers.

      2. The only thing standing between this country and certain ruin is the second amendment.

        Guerrilla warfare has a way of demoralizing regimented troops.

        Sure, one could “kill them all” but then, what is the value of the conquest that remains? Resources have much less value without the citizens to exploit them.

  17. Ruling seems fair to me. The bad decision was allowing women into the combat roles. Once you’ve made that mistake then the consequences must follow.

    The “Draft our Daughters” meme is coming to life. Meme magic is real.

  18. If there were a war that necessitated a draft, I cannot believe that women would actually be drafted. For one, mothers are not going to want to leave their young children for some extended length of time. Nor would any man want his wife (or mother of his child) to go to war while he stays safe at home. Not to mention the damage it would do to children, who need stability and certainty that their mother is going to be there. The risk that mommy could drafted to war would be intolerable. This is one of those areas where political correctness must give way to biology. Try as you might to be “equal” parents, young children have their own, non-PC agendas.

    1. You think fathers want to leave their young children for an extended length of time? You think women want their husbands (or the father of her child) to go to war while she stays safe at home? You think that losing fathers does no damage to children?

      Your anti-father bias does you no credit. It also has no basis in science. Both parents are important.

      1. Amen on all of that, but you missed a part.

        Many (large in number, small in percentage) men do indeed want to leave their young children, that’s partly how they have so many, often with so many mothers.

        So let’s draft them first, Army only, and I know just how I’d have used them in Afghanistan…..

      2. Did I say that fathers would want to leave their children? No, I did not. In a WWII like scenario, where someone has fight, I would certainly be willing to go in lieu of my wife, and I think that between us, our daughter would do better with just her mom vs just me. It’s not that I am not a good father (because I am), its is that between the two of us, a 22-month old needs her mommy more than me.

        1. Far be it from me to interfere in decisions between you and your wife. There is, however, no scientific evidence to support your general assertion that children need fathers less than mothers.

          (Qualifier: There is some evidence in support of mothers pre-weaning. A single-parent father would necessarily have to bottle-feed the child while a single-parent mother could breast-feed. Breastfeeding is currently thought to convey certain immunological advantages to the child. However, the evidence for this line of research is suggests that the advantage, if it exists at all, is not overwhelming.)

          1. I take it you don’t have kids…

            1. I take it you are ignorant of the difference between “anecdote”, and “data”.

    2. “The risk that mommy could drafted to war would be intolerable.”

      You would just exempt women with children. That’s how many modern mandatory-service regimes handle it. US law already permits exemptions for men who are the primary supporters of children.

    3. How many 19 – 25 year olds are married and have children to leave behind?

      There is a reason that conscription is applied to such youngesters in the first place. And, it goes beyond established familial responsibilites. Young minds are much easier to conscript in the first place.

      Look at the historical record.

      1. The average of new mothers in the US (as of 2016) was 26.3, so about half are 25 or under.

        1. I wonder what the political and social-economic affiliations of each half are? I suspect the result (coupled with the service exclusion) would be hilarious.

    4. “… political correctness must give way to biology.”
      You’re kidding, right?
      If ever we were in a society where that concept is to be employed, it has long gone.

  19. The judge’s reasoning is a little off – yes, the military has begun to accept females in combat specialties. But it’s currently a pilot program, and they aren’t doing it wholesale. So this ruling was a little premature.

    However, there are two separate issues here. Registering for the draft doesn’t mean the military is still going to take you. We will probably end up with women registered for the draft, but they won’t ever be drafted if we go to war.

    A simpler solution is just to eliminate selective service. Not for the reasons that Mr. Somin proposed, but simply because it’s an unnecessary expense right now. This isn’t the 1930s, everyone gets a SS number now and can be tracked down. If we did actually have a need for a draft again in the future, I am confident we could rebuild a list of draft eligible people very quickly.

    1. Or better: “registering” is indicating to the government that you intend to keep yourself prepared should the need for a draft occur, and comes with 1,000 rounds of ammunition for the current issue rifle per year, a current issue rifle, and a national concealed carry license (since you’re carrying explicitly to be prepared to be called up).

      Add in a highly compressed rifleman course, and make it illegal to sell the issue-ammo, and you’ll get a group of people who will be ready to take up arms faster than anyone who hasn’t already served, or is a gun nut and can self-fund their training.

      1. So “National Guard”-Lite?

        Sure, why not.

  20. I don’t think Rostker should be controlling because so much of the opinion was undercut when women got admitted to combat roles. While deference mattered, so was the fact that it seemed fairly pointless. Now deference to military matters does matter when it comes to judicial review of excluding women from certain military roles. In that sense, I’m not completely convinced that the male-only Selective Service should be declared unconstitutional (although I am sympathetic to that argument), but that’s separate from whether Rostker still controls.

  21. I predict that if the government appeals, which it might very well not and just take the opportunity for the executive branch to tell Congress to fix the problem, the appellate court will hold Rostker applies and reverse. The Supreme Court has made it abundantly apparent that it, and only it, reserves the right to overrule its precedent. The facts in Rostker might still not be good, but the holding is clear.

    That said, if it makes it to the Supreme Court I could see it overruling Rostker by per curium and remanding for reconsideration. Full blown briefing and oral arguments really aren’t required and would really be a waste of judicial economy.

    1. “waste of judicial economy?”

      You might want to rephrase.

  22. Does a lower court have the ability to refuse to comply with a Supreme Court opinion if the lower court believes that the reasoning of the Supreme Court is no longer valid? I had always assumed that in such a situation, the lower court is still bound by the prior decision, and only the Supreme Court can overrule its own opinions.

    1. “…the lower court is still bound by the prior decision…”

      But not by the fact-finding in the earlier case.

    2. The reasoning is that they aren’t refusing to comply with the ruling, just that the original conclusion has been overcome by events such that applying the same reasoning they now arrive at a different conclusion.

  23. I own myself. I am committed to the principle of non-agression.

    Period.

    1. Please pick up the phone, Herr Hitler is on line 2…

  24. Slavery is unconstitutional, and what more blatant example of slavery is there than to require somebody to risk their life and limb to make Crony Capitalists richer?

    1. You can make the exact same claim about Tax Evasion as you can Draft Evasion. Why should anyone have to risk their livelihood and limb to make poor people poorer through some forced entitlement!

  25. Another silly thing about the draft rules is that I am retired from the military and even if I merely served one term, I still have to register for the draft. Since I was born in 1960, every time I go to get a job I have to prove that I am current on my selective service registration, while someone born in 1959 is excluded. I have celebrated 50 more birthdays than those born one year earlier and for all those years I have been required to prove registration and they haven’t. When will I ever be too old to need to prove I am current on my registration? I am 59 years old now, and I could actually get drafted!!! The selective service system needs to update its expire by date every year. So if Congress doesn’t fix the system, by next year a 60 year old grandMA could get drafted!!! And I good with being drafted if they need me, but give me a sniper rifle and put me on a hill somewhere or put me behind a desk. I can still calibrate equipment almost as well as I did when I was 25, but no way I’m passing a PT test.

    1. You only have to register (for the draft) until age 35 or so. After that, I don’t know how you could legitimately prove you had been registered.

    2. “…Since I was born in 1960, every time I go to get a job I have to prove that I am current on my selective service registration, while someone born in 1959 is excluded. I have celebrated 50 more birthdays than those born one year earlier and for all those years…”

      Willie,
      Can you explain this to me? If you are born in 1960 and I am born in 1959 (i.e., “earlier”), then you have celebrated FEWER birthdays than I have, and not more, right? Also, if there is a year difference, then how do you calculate that you have celebrated 50 more birthdays than someone who is within a year of your age?

      I feel like I am missing something obvious…something that will make me feel quite stupid when you explain it to me.

  26. Another silly thing about the draft rules is that I am retired from the military and even if I merely served one term, I still have to register for the draft. Since I was born in 1960, every time I go to get a job I have to prove that I am current on my selective service registration, while someone born in 1959 is excluded. I have celebrated 50 more birthdays than those born one year earlier and for all those years I have been required to prove registration and they haven’t. When will I ever be too old to need to prove I am current on my registration? I am 59 years old now, and I could actually get drafted!!! The selective service system needs to update its expire by date every year. So if Congress doesn’t fix the system, by next year a 60 year old grandMA could get drafted!!! And I good with being drafted if they need me, but give me a sniper rifle and put me on a hill somewhere or put me behind a desk. I can still calibrate equipment almost as well as I did when I was 25, but no way I’m passing a PT test.

  27. While I am against conscription, the ladies may have to contend with our favorite DI.

    https://www.youtube.com/watch?v=-ZYlXEUo-Lo

  28. As stupid as the ruling is within-itself —

    Its freak-en hilarious this had to be pushed by the National Coalition for Men instead of the 100x larger, louder advocate of “equality” bandwagon known as “Feminism”. As the sayings go; Be careful what you wish for

  29. Very interesting. Bit late for me, but all the better. I despise any sort of registration and forced surveillance.

  30. Since the equal rights amendment hasn’t yet made it into the Constitution how can this be unConstitutional?
    Nowhere in the Constitution does it say men & women are equal

    1. The courts some time ago decided that they weren’t going to let the states refusing to ratify the ERA matter, and started interpreting the 14th amendment as having the same effect as the ERA would have.

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  33. Comment on Fitness tests and Females. In 1987 I was a 40-yr-old corrections officer cadet in an 8-week law enforcement academy. During our lunch break some of us would play pickup basketball games against the police cadets in the gym. As luck would have it, my 8th week, a female police point guard built like a bowling ball of muscle dived for a loose ball and took out the ACL on my left leg, tearing over half of it.

    Now the rules of 1987 were that the last thing you had to do before graduation was run a mile in less than 15 minutes. Otherwise, you had to repeat the whole academy. As the article above mentioned, the average male over 30 today can’t do that with two good legs.

    No choice. Tape, tape, more tape. Pain, pain, more pain. Finished in 14:59. Then went in for surgery next day, which resulted in surgery, complications, major blood clot, another surgery, and finally starting work 5 months later. I often wonder how the career of that female bowling ball went and how many other pins she knocked over in her career.

  34. Judge Miller is actually sending a message to Congress to clean up the equal protection mess caused by the Obama order to allow women into combat arms.

    The money note of Judge Miller’s opinion does not arrive until page 18: “Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment.”

    Miller grants Congress time to accomplish this evaluation by declining to enter an injunction against the male only draft registration.

    The Obama order was an affront to reality. Part from maybe olympic level athletes, women do not have the physical ability to perform the supermajority of combat arms missions which require strength and heavy lifting. The word in the Army community is that the handful of women who have entered combat arms branches like infantry did so under lax enforcement of the standards or after repeated tries.

    The math of a gender neutral draft similarly does not work. Currently, women make up a majority of the population, but less than 20% of the services. In order to fill the combat arms positions during a major war requiring a draft, a gender neutral selection process would have to draft twice as many people to fill the combat arms positions with men, and the vast majority of the drafted women would not have a position to fill for which they were qualified.

  35. Though we’ve seen evidence to the contrary, I’m still hopeful that the courts possess a bit of common sense: a general preference for exempting women from going to war will help the collective survive an existential challenge, until men evolve to regularly gestate and give birth to their reinforcements. I know women can fight, but this is about what men cannot do.

    “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.”

  36. Yes, the draft in WWII was mainly to schedule men into the military, otherwise large tranches of 18 year old high school graduates would inundate the training pipeline every June.

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