Tuesday, February 26, 2019
A federal judge in Houston has ruled that the male-only draft violates equal protection principles of the Fifth Amendment’s due process clause.
U.S. District Judge Gray Miller ruled Friday in a suit by the National Coalition for Men.... Miller granted the group’s motion for summary judgment but did not grant an injunction because the issue had not been briefed.
The U.S. Military currently relies on volunteers. But the Military Selective Service Act still requires men between ages 18 and 26 to register for the draft. Men who fail to register can be fined up to $10,000 and imprisoned for up to five years.
Miller noted that the U.S. Supreme Court had upheld the draft-registration law in 1981 in Rostker v. Goldberg. But women weren’t eligible for combat at the time, and the purpose of draft registration was to prepare for a draft of combat troops.
Circumstances have changed since that ruling, Miller said. In 2013, the U.S. Department of Defense lifted the ban on women in combat, and in 2015, the department lifted all gender-based restrictions on military service.
The government had argued that the decision to exclude women was justified by the administrative burdens of registering them. But the government did not present any evidence that Congress considered whether a female draft was unjustified because fewer women than men will be able to meet the physical standards of combat, Miller said.
“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’ judgment,” Miller wrote. “Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”
In a footnote, Miller said that combat roles “no longer uniformly require sheer size or muscle.” Women “could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required,” he said.
The Selective Service System had argued that a ruling on the case should be postponed under separation of powers principles because Congress is currently considering whether to add women to the draft. The government had argued that the congressional debate also meant the case is not yet ripe for review.
The government noted that a national commission was considering congressional recommendations.
But there is no guarantee that Congress will act, Miller said. Congress has been debating the male-only draft since at least 1980 and recently rejected a proposal to include women, he wrote. And national security concerns don’t justify a refusal to act by the courts, he said.
The decision in National Coalition for Men v. Selective Service Administration is here. The judge, Judge Gray Miller, is a 2006 George H.W. Bush appointee and has military experience, serving as a Merchant Marine and a police officer.
Next, Defendants must show that the MSSA's male-only registration requirement is "substantially related"to Congress's objective. See Miss. Univ.for Women v. Hogan, 458 U.S. 718, 724 (1982). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S. at 533; see also Rostker, 453 U.S. at 67 (noting that the Court previously struck down gender-based classifications that were based on "overbroad generalizations"). "[I]f the statutory objective is to exclude or 'protect' members of one gender because they a represumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate." Mississippi Univ.for Women, 458 U.S. at 724 (citing Frontiero v.Richardson, 411 U.S.677, 691 (1973) (plurality opinion)).
Defendants offer two potential justifications for male-only registration.5 First, Defendants argue that female eligibility to serve in combat roles "does not answer the question of whether women should be conscripted into combat roles" because conscription could lead to ''potential tradeoffs"for the military. Dkt. 80 at 27 (emphasis added). Construed liberally, Defendants appear to be arguing that requiring women to register for the draft would affect female enlistment by increasing the perception that women will be forced to serve in combat roles. Id. at 28; Dkt. 80-3 at 173.
However, this argument smacks of "archaic and overbroad generalizations" about women's preferences. Schlesinger,419 U .S .at 507---08; see also Virginia, 518 U.S. at 533; Rostker,453 U.S. at 67. At its core, Defendants' argument rests on the assumption that women are significantly more combat-averse than men. Defendants do not present any evidence to support their claim or otherwise demonstrate that this assumption is anything other than an "ancient canard" about the proper role of women." Rostker, 453 U.S. at 86 (Marshall, J., dissenting) (quotations and citations omitted). As the Court reasoned in Schlesinger:
In both Reed and Frontiero[,] the challenged classifications based on sex were premised on overbroad generalizations . . . that men would generally be better estate administrators than women . . . [and] that female spouses of servicemen would normally be dependent on their husbands, while male spouses of servicewomen would not. In contrast, the different treatment of men and women naval officers . . .reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service.
419 U.S. at 507-08. It is not a "demonstrable fact"that fewer women will enlist for fear of being conscripted into combat. This justification fails.
Moreover, this justification appears to have been created for litigation. See Virginia, 518 U.S. at 533. Defendants have not produced any evidence that Congress actually looked to this concern in declining to add women to the draft. Defendants' evidence establishes only that Congress may have considered a similar issue in evaluating the Department of Defense's decision to open combat positions to women. See Dkt. 80-3 at 171-74. Thus, although the court must give significant deference to Congress's judgment in military affairs, such deference is not implicated here.
For prior legal scholarship on the gendered draft, see Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minnesota L. Rev. 96 (2008), reprinted in Thomas & Boisseau, Feminist Legal History (NYUP 2011). Hasday argues that extrajudicial change in facts of women's admission into combat positions forms a basis for rethinking the precedent -- exactly what the court found and did in National Coalition for Men.