Sex Discrimination

Fifth Circuit Upholds Constitutionality of Male-Only Draft Registration—But only Based on Precedent

The issue may be headed for the Supreme Court, which hopefully will reverse its 1981 ruling in Rostker v. Goldberg.

|The Volokh Conspiracy |

Male-only draft registration is one of the last vestiges of open sex discrimination in federal government policy. With a few exceptions, all men between the ages of 18 and 25 are required to register, while women are categorically exempt. The draft registration system is an anomaly in an age where women are now eligible for virtually all combat positions in the military, and the Supreme Court has subjected sex-discriminatory laws to heightened scrutiny that few can survive.

Nonetheless, yesterday the US Court of Appeals for the Fifth Circuit upheld the constitutionality of the draft registration system, in a short per curiam opinion in National Coalition for Men v. Selective Service System, joined by both liberal and conservative judges. The court overruled a trial court decision that I wrote about here.

The panel made clear it ruled that way purely on the basis of adherence to the precedent set by the Supreme Court's 1981 decision in Rostker v. Goldberg, (which upheld male-only draft registration against a previous challenge):

In 1980, President Carter recommended to Congress that the [Selective Service] Act be extended to cover women…. Id. at 61, 72. In 1981, the Supreme Court held in Rostker v. Goldberg that male-only registration did not violate the Due Process Clause of the Fifth Amendment… The court based its reasoning on the fact that women were then barred from serving in combat and deferred to Congress's considered judgment about how to run the military…..

Since then, the military has gradually integrated women into combat roles…. In 2013, the Department of Defense ("DoD") announced its intention to open all remaining combat positions to women, the last of which it opened in 2016….

Plaintiffs-Appellees sued the Government under 28 U.S.C. § 1983 for violations of their Fifth Amendment rights to be free from sex discrimination. On cross-motions, the district court granted summary judgment for Plaintiffs-Appellees declaring that male-only registration was unlawful, but it declined to issue an injunction. The court reasoned that Rostker no longer controlled because women may now serve in combat…

In Rostker, the Supreme Court held that the male-only Selective Service registration requirement did not offend due process…. The Court concluded, "This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups. . . . Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft." Id. at 78–79. Further, the Court rejected the district court's conclusion that women could be drafted in some number into noncombat positions without degrading the military's effectiveness, instead deferring to Congress's determination that the administrative and operational burdens of such an arrangement exceeded the utility….

That holding is controlling on this court. The Fifth Circuit is a "strict stare decisis" court and "cannot ignore a decision from the Supreme Court unless directed to do so by the Court itself." Ballew v. Cont'l Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012)…

Here, as in State Oil Co. [v. Khan], the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent.

In other words, the Fifth Circuit concluded that it must continue to apply Rostker, even though the "factual predicate" underlying that ruling (women's ineligibility for combat positions in the military) no longer holds true. To my mind, this overlooks the possibility that the change in factual circumstances enables the Fifth Circuit to strike down male-only draft registration without in any way disturbing precedent. It is possible that, under Rostker, male-only draft registration is constitutional in a world where, as the  Rostker Court put it, men and women "are simply not similarly situated for purposes of a draft or registration for a draft," but becomes unconstitutional when they are similarly situated. In that latter scenario, the sex-discriminatory policy in question can no longer survive the heightened scrutiny imposed on laws that discriminate on the basis of sex.

Admittedly, the logic of Rostker also rests in part on deference to Congress in the field of national security. But such special deference is far from consistently applied, and any across-the-board judicial deference on national security issues would go against numerous court decisions that did not apply such special deference in the national security context. The idea of special deference also has a variety of other flaws, including that it is nowhere required by the text of the Constitution.

Regardless, it is notable that the Fifth Circuit concluded that Rostker still protects male-only draft registration, but also notable that the judges (both liberal and conservative) recognized that the factual basis for that decision has evaporated.

There are several other cases challenging male-only draft registration working their way through the system. It is possible that another appellate court will rule that Rostker no longer shields the male-only draft from constitutional challenge.

Either way, there is a good chance the issue will ultimately end up in the Supreme Court. It's possible, at that point, that the justices will uphold male-only draft registration. Conservatives might reason that striking it down is contrary to originalism. However, there is in fact a strong originalist case for applying heightened scrutiny to sex-discriminatory laws, developed by prominent conservative  constitutional law scholar Steven Calabresi and Julia Rickert.

Moreover, upholding the male-only draft based on the idea that sex discrimination should not be subject to heightened scrutiny would threaten numerous other precedents requiring such scrutiny and empower states and the federal governments to enact a range of laws discriminating against either men or women. I doubt there are five justices on the Court willing to bite that bullet. Creating an exemption from heightened scrutiny for national security-related legislation would also be problematic for a range of reasons, though it might still be more attractive to Chief Justice Roberts and other possible swing-voting justices.

I could easily be wrong. But, if this issue reaches the Court, I tentatively predict a majority would vote to either overrule Rostker or interpret it as no longer applicable, because today—unlike in 1981—women can serve in combat positions.

To avoid misunderstanding, I should emphasize that I do not  advocate a system in which both men and women are drafted. Rather, in my view,  the right way to go is to abolish mandatory draft registration for  men and women alike. 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.  I outlined the reasons for my position to mandated government service of all types in greater detail in my 2018 testimony before the the National Commission on Military, National, and Public Service.

While mandatory registration is a far cry from an actual draft, it does make it easier to reintroduce the latter when and if the government chooses to do so. For that reason, it would be better to eliminate the registration system, so as to give both men and women extra protection against the return of government-mandated forced labor.

If the courts ultimately strike down  the current system of male-only draft registration, the result will likely be no draft registration  at all unless and until Congress chooses to enact a gender-neutral version of it. Hopefully, they will then choose to consign draft registration to the dust bin of history, where it belongs.

NEXT: Lovecraft Country Makes Actual Monsters Out of America’s Tormented Racial History

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  1. If the Supreme Court ruled against the male-only draft registration, would it mean no registration for either sex or registration for both sexes?

    1. Either would be consistent. My guess is that the court would give the government discretion to make that decision. Though there are plenty of conflicting decisions on severability that would also allow the court to force the choice for the government.

    2. Registration for ALL sexes, present and future.

  2. If we find ourselves drafting women into the military, because it’s the logical conclusion of stuff we did before, then the stuff we did before must have been wrong.

    1. I think the feminists deserve it.

    2. Why are not women as responsible for the defense of our nation as men?

      1. Chivalry is not only dead, they’re digging it out of its grave to piss on it.

        1. You can also argue the world has changed. Technology has meant that a lot of people who participate in combat don’t have to meet the same physical demands that had to be met in the past. So while I would contend that the previous regime was in large part because of sexism, it is possible to argue that this is the right approach now without conceding that it was improper to exclude women back then.

          1. “Technology has meant that a lot of people who participate in combat don’t have to meet the same physical demands that had to be met in the past.”

            Depends on which combat role. Fighter pilot or ship driver, maybe sure, but infantry, no, a hard no.

            1. Sure, but not all draftees would go to the combat infantry.

              1. But that’s where draftees are usually needed.

                Given the largely immutable physical characteristics of men and women, female draftees will end up in the rear with the gear and pushing papers. More men end up at the front because the women by their very nature will have the less dangerous jobs filled up because they can’t do aught else.

                That’s just war I suppose, but let’s not kid ourselves that women (who can barely make it in the combat professions that are open to them now) will be making so great a sacrifice or encountering danger.

        2. Chivalry as an individual choice is not dead.

          As a state-imposed patronizing inequality, yeah, it can suck it.

          1. It’s conscription which is imposed by the state. Chivalry, IMHO, includes not dragging women from their homes and taking them to the battle front.

            Or you can tell them it’s a sacrifice they need to make for the woke sisterhood.

            I mean, for their country. Because this is all about military efficiency, not gender ideology.

            1. But dragging men from their homes is OK? Drafts suck.

              Don’t treat women like they aren’t full citizens, as responsible for the common defense in extremis. That’s not chivalry.

              1. “But dragging men from their homes is OK? Drafts suck.”

                Most of the time, and for most of the things drafts are used for.

                The only thing worse than drafting men is drafting women.

                Were women “full citizens” during the Second World War, Korea, Vietnam? Recall that they could actually vote back then and were in a position to vote out those who denied them full citizenship.

                Or has the meaning of full citizenship evolved?

                1. No, women were not full citizens in WW-2 and not really during Korea.
                  They had recently gotten the vote, but couldn’t fully participate in American society.
                  They couldn’t go to law school or medical school or the like. Women scientists had to enter through back doors, hide in their lab, and leave through the same. Does that seem like a full citizen to you?

                  Excluding people from a shared burden means something about those people.

                  1. Hmm…you could have said that female lawyers and doctors faced discrimination, but you overgeneralized and said they couldn’t go to law school and medical school *at all.*

                    Mabel Walker Willebrandt not only graduated from law school in California back in the Paleolithic era, but during Prohibition she became in charge of prohibition cases in the U. S. Justice Department.

                    https://en.wikipedia.org/wiki/Mabel_Walker_Willebrandt

                    I’m not saying that’s something to celebrate – Prohibition not necessarily being a good idea – but I actually had the impression that she got the position because Prohibition was deemed a “woman’s issue.”

                    1. Not that none of them could, but that generally such doors were shut.

                      My grandmother wanted to be a doctor, but was not allowed and had to settle for pharmacist. Damn shame.

                      Now that such pedantry is out of the way, would you agree that women were indeed second class citizens in the 1940s and 50s?

                    2. I don’t think it’s “pedantry” to correct a completely incorrect statement:

                      “They couldn’t go to law school or medical school or the like.”

                    3. Of course, in many ways 1940s and 1950s America was a fairly anamalous period, in which what feminists might call the Cult of Domesticity rose to great heights which would have been inconceivable in the Middle Ages. As Dorothy Sayers (no feminist) instructs us, medieval wives did a *lot* of work “in the home” including run businesses (I believe brewing was Sayers’ example). The 50s cliche of the contented housewife with her vacuum cleaner was not really sustainable. (and there were women who, whether they liked it or not, went to work even in the awful 50s).

                      If, after WWII, most women had decided that they didn’t want to be in the home and wanted a 21st style legal and social regime, they would probably have gotten it. Recall the 19th Amendment.

                      So if they were second-class citizens, does that mean they were deceived by men into approving, with their votes, a Handmaid’s Tale scenario? Now, there’s a bit of a sexist reflection on women’s political competence.

                      Or could it be that, like male voters, female voteres in sufficient numbers changed their thinking and public policy followed, so that the political demands of large political blocs of women are different today than they might have been at an earlier time?

                    4. They does not mean every single person, it means generally. This is common parlance. If you didn’t get that, allow me to make it clear: I was using they to mean women generally, not every women without fail.

                      If, after WWII, most women had decided that they didn’t want to be in the home and wanted a 21st style legal and social regime, they would probably have gotten it. Recall the 19th Amendment.
                      Well, this is ridiculous. Historical telepathy, and if you’ve ever spoken to a women who lived back then, very completely wrong.

                      Don’t exclude the middle – being better than a dystopian novel is a meaninglessly low bar to clear.

                      You also presume that women were politically unified. The were not. Does that mean they don’t deserve to be treated equally? Your appeal ad popularum is another dodge from the fundamental moral question about what it means to insist women have a less onerous place in society.

                    5. “You also presume that women were politically unified.”

                      No, I presume that if they were they could probably have gotten the political objectives they sought.

                      And you seem to be implicitly admitting that, indeed, women were *not* politically unified on behalf of your agenda of first-class citizenship *until later.* At which time they did, indeed, get key goals met – even having the Supreme Court ratify much of the ERA when actual voters looked like they might not do so.

                      Of course, there is the perennial problem of false consciousness – ungrateful wenches who don’t appreciate all the first-class citizenship which is getting rammed down their throats (like conscription), and who get written off as too dumb to understand their own interests.

                    6. No, women were not politically unified. My argument is a moral one – it does not hinge on the popularity of the moral thing.

                      I’m not dipping my toe into false consciousness. I’m saying what I think the best policy is, and asking you why you think the best policy is different.

                      Why is drafting women worse than drafting men?

                    7. “I’m not dipping my toe into false consciousness.”

                      I can certainly see that. Dipping your toe (if you’ll pardon the mixed metaphor) will open quite a can of worms, like – why did women – who are fully as capable as men and as intelligent – consent to be oppressed with a regime of second-class citizenship, cementing that oppression with their votes, until the went another path and endorsed (with plenty of dissenters) an aggressively feminist status quo.

                      If they were incompetent ninnies the first time around (as your portrayal indicates), then how did they suddenly develop wisdom and capacity just at the moment that Betty (“comfortable concentration camp”) Friedan put out her book?

                    8. No, false consciousness is a Marxist concept and it is not something I believe in.

      2. They are. I fully support women being able to be drafted.

        Note. The gender disparity in the draft and armed forces used to make sense in an earlier era, especially based on the relative average (emphasis on average) physical differences between the genders. It does not in today’s era

        1. I’d be willing, for the sake of argument, to presume that female conscripts can be as efficient, as skilled, etc. as male conscripts, and that there wouldn’t be major problems having men and women fighting alongside each other because we’ve finally found a way to solve that particular problem.

          But like the feminists, my focus isn’t on military efficiency. There focus is (at least in this context) a geometrical equality to be enforced in military as well as civilian life. My focus is on opposing such geometrical equality and reserving the draft for men (if we *must* have a draft, which by the way I doubt).

          1. I notice you do not articulate a reason to break from equality, other than to break from equality.

            1. It’s the difference between saying men and women can *voluntarily* assume nontraditional roles, and *compelling* them do so so because social justice.

              1. If we’re compelling men, I see zero reason why we should not also be compelling women. Women are not softer, nor to be more coddled than men.

  3. As SCOTUS has ruled that one can be whatever sex one wants to be — and in some states, one literally has a choice of M, F, or X on one’s driver’s license — I don’t see how it could enforce a male-only registration law on that basis.

    Reality is that we won’t have a draft as long as any officer who served in Vietnam is alive. They do not WANT draftees in the Army, they had SO MANY problems with them and it’s far better to pay more and get volunteers. And the equipment is *so* much more expensive than it was in the ’60s, so much easier for a “don’t give a f***” soldier to nonchalantly break.

    A decade or so from now, these officers will be dead — but right now they are still around and able to say “we don’t want draftees.”

  4. What on earth is 28 U.S.C. § 1983?

    I would assume that it was a mistaken reference to 42 U.S.C. § 1983, but that section applies to state, not federal, actors.

  5. To my mind, this overlooks the possibility that the change in factual circumstances enables the Fifth Circuit to strike down male-only draft registration without in any way disturbing precedent.

    And this is why you are not a federal judge.

    The Supreme Court has said over and over again, most recently in June Medical, that only the Court gets to overturn its own precedent. And as part of this, they don’t like disingenuous “distinguishing” of SCOTUS precedent. You are supposed to follow it in good faith, not look for a reason to avoid it.

    But I agree, there’s a strong case to overturn Rokster at the SCOTUS level.

  6. I think this is an easy case for the SCOTUS to overturn its on precedence, likely in a 9-0 decision.

    1. Thomas probably doesn’t even think sex discrimination is unconstitutional at all.

  7. I’m curious why the commenters on a “libertarian” blog are so complacent about conscription. Is being drafted and told exactly what, when, where, and how to do everything an example of the kind of “liberty” libertarians expouse?

    Carter’s revival of draft registration was what precipitated my voting Libertarian in 1980. I’m too old to be drafted now (I think), but still think the draft is just another form of slavery. The gender issue surrounding it pales in comparison.

    1. The question barely means anything anymore. The modern military is more of a community within a community and the leaders are more bureaucrats than soldiers in the common sense nowadays.

      We’re moving toward the direction where a larger and larger majority of the military (who would basically be called campfollowers in other eras) will never see combat which increasingly is performed by drones and an elite team of operators.

      In the unlikely event where people are being forced to fight like they’re in the civil war again anytime soon I imagine pragmatism will win over and men will still make the majority of the frontline then we can go back to social engineering once its all over.

      As for the sex issue itself I don’t have much to say other than if people find the originalist notions of equality so offensive than there are plenty of other things we need to dismantle such as affirmative action, women’s shelters, restrictions on ‘minors’ and any and all age discrimination, the whole progressive movement and many of other things everybody weirdly seems to still be fine with.

      1. We’re at war now, Amos.

        Our troops still rotate overseas to combat zones.

        Less blood and guts, but we’re still leaning hard on those folks. And if you think that means they’re soft, I’d like to see you say it to their faces.

        the originalist notions of equality
        So have you heard of this thing called slavery?

        1. In the modern US military structure the vast majority will not see combat and even less will fire a shot in anger. Thats just facts. Anyone who denies this simply sees too many movies. I never said it wasn’t a hard or honorable job but being certain types of mechanics or a liaison in Germany simply isn’t comparable in terms of direct combat or exposure to danger with a Roman centurion or a Vietnam era infantryman.

          My cousin is a ‘soldier’ but makes quite a nice living out here in the states instead of dual wielding machine guns in the swamps of ‘Nam hunting for Charlie like popular imagination suggests. Frankly there are countless civilian jobs who encounter more danger than her on a daily basis. That doesn’t detract from the importance of either. But that also doesn’t detract from my previous point that this sort of organization leads to a greater leeway to play politics more than pure combat will allow.

          >>>>>>>>>>>>>>>>>>>
          I’d like to see you say it to their faces.
          >>>>>>>>>>>>>>>>>>>

          I’d like to see you go up to Russian Spetsnaz or Islamic militants and say that American girls working in offices in the Pentagon have as much combat experience as they do.

  8. The conscription of women means our society no longer values the bearing of children and nurturing of them by mothers.

    In the second Gulf War, a significant percentage of volunteer female troops were not combat ready due to pregnancy and childcare issues, a big problem which was not publicized at the time. Perhaps that has changed since then, with stricter policies, more gay inductees, and declining birthrates.

    For the last couple of decades, Army PT tests have been reconfigured so as to not fail women who, by and large, don’t have the strength and stamina of their male counterparts. Fact. This doesn’t mean that women can’t equally hold their own with men wrt technology, strategy, organization, and command, although command is often more effective with combat experienced officers.

    We have been at war endlessly over the past several decades, with a bigger war to come, soon, which troubles me as an ex-officer’s wife who values our troops but not our government’s penchant for using them up for globalist and corporate ends, to include all sorts of illicit trafficking.

    1. Clarification: “In the second Gulf War, a significant percentage of volunteer female troops were not [deployment] ready due to pregnancy and childcare issues”.

  9. I stumbled across this gem from a 1971 law review article arguing for women to be drafted equally with men:

    “Another potential benefit to be extended to all young women who
    might be drafted if the Equal Rights Amendment were passed is that of access to contraception. Tragic though it is in human and social costs, many young women, particularly poor and socially disadvantaged young women, do not have effective birth control available to them. If women were drafted it would be essential for the armed forces to provide them with an effective means of birth control. Thus, one consequence of men and women serving as equals and being as equally free from the fear of pregnancy might well be an undermining of the double moral standard.”

    Mariclaire Hale & Leo Kanowitz, Women and the Draft: A Response to Critics of the Equal Rights Amendment, 23 Hastings L.J. 199 (1971), at 210

    The authors chivalrously note that drafting large numbers of women “would have the immediate and obvious consequence of greatly decreasing the number of young men whose lives would be interrupted by the burden of military service.” (p. 215)

    The authors favorably quote Nat Hentoff: “Why should men be discriminatorily more vulnerable to the insanity
    of war than women? Let the populace see mutilated American
    women in uniform on the evening news. The changed perspective
    might save a whole lot of lives.” (p. 216)

    And the nuggets of wisdom keep dropping – “Perhaps the most far-reaching social consequence of drafting
    women would be its impetus toward a concept of compulsory national
    service rather than strictly military service. Because of its possible effect
    in diminishing the voice of adventurists in American foreign policy,
    because of the probable reluctance of the “silent majority” to see
    women in traditional military roles, and because of the approximate
    doubling of the pool of eligible draftees, the extension of the draft
    to women would be a strong force for expanding the focus of draftee
    services to include a broad range of non military services such as are
    presently performed by VISTA volunteers, Peace Corps and Public
    Health Service people.” (p. 217)

  10. Interesting that now that the draft is politically dead that leftists are willing to entertain the idea of civic responsibilities for women in addition to civic rights.

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