The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.