Trial Judge Declares Male-Only Selective Service System Unconstitutional

By Sarah Grant, Lawfare

26 February 19

n Feb. 22, a federal judge in the Southern District of Texas ruled that it is unconstitutional for the government to require only men to register for the draft. Judge Gray Miller found that the male-only Selective Service System (SSS) violates Fifth Amendment Equal Protection principles and granted summary judgment in favor of the National Coalition for Men (NCFM) and two individual plaintiffs who brought suit challenging the constitutionality of registering only men and not women for the military draft system.

Currently, the Military Selective Service Act (MSSA), most recently amended in 1971, requires all male citizens and residents of the United States ages 18 to 25 to register with the SSS, which would run the military draft if it were ever reinstated. Women are not required to register, nor can they register voluntarily. Transgender women must register and transgender men cannot register, as the “Selective Service bases the registration requirement on gender at birth and not on gender identity or on whether they’ve had a sex change”—though the Trump administration’s ban on transgender individuals serving in the military makes this a bit of a moot point at the moment. For those assigned male at birth, failure to register with the SSS or update the system with address and exemption or deferment status changes can result in denial of federal student loans, fines up to $10,000 and five years of imprisonment.

NCFM, a men’s rights organization, and one of the plaintiffs, James Lesmeister, first filed suit in 2013 in the Central District of California. They claimed that the male-only draft system is unconstitutional because men are required to register but women are not, in violation of the guarantee of equal protection of the laws implicit in the Fifth Amendment Due Process Clause. The first trial judge dismissed the case as not ripe for review, but on appeal the Court of Appeals for the Ninth Circuit reversed and remanded, holding that the plaintiffs’ claims were sufficiently concrete and ripe. On remand, the judge granted the defendants’ motion to dismiss on the ground that NCFM lacked associational standing to represent the interests of its members, and determined that the proper venue for the case was the Southern District of Texas, where Lesmeister resides.

NCFM, Lesmeister, and a new plaintiff, Anthony Davis, filed an amended complaint in the Southern District of Texas in August 2017. Early on, Judge Miller denied the defendants’ motion to dismiss, finding that all three parties had standing and a plausible claim for relief, and allowing the case to proceed. In August 2018, the plaintiffs moved for summary judgment, asking Judge Miller to find in their favor as a matter of law. Judge Miller did so in his ruling on Feb. 22, and denied a defense motion to stay proceedings pending the results of congressional study into whether women should be added to the draft, currently being undertaken by the congressionally established National Commission on Military, National, and Public Service.

The primary precedent with which the court grappled is Rostker v. Goldberg, a 1981 case in which the Supreme Court held that the male-only Selective Service System did not violate the Fifth Amendment and that Congress was within its authority to decide to statutorily exclude women from the draft. At the heart of the Supreme Court’s analysis was the principle that it should defer to the relative institutional competence of Congress in setting military personnel policy. Because Congress had recently engaged in extensive debate about whether to include women in the draft and decided against it, the court was loath to second-guess that judgment. The key factor distinguishing Rostker from the NCFM case, in Judge Miller’s opinion, was the fact that at the time of Rostker, women were formally excluded from combat roles. The purpose of the draft, the government argued in Rostker, was to enlist combat soldiers. Women could not fill that role, so there was no reason to enlist them, and doing so would cause great administrative inconvenience. In the Rostker court’s view, for purposes of Fifth Amendment Due Process analysis, men and women were not similarly situated such that excluding women would have denied them equal protection of the laws.

In reaching an outcome contrary to Rostker, Judge Miller emphasized that the facts on the ground have changed such that deference to Congress’s views from the 1980s is no longer warranted. Specifically, the Department of Defense lifted all gender-based restrictions on military service in 2015, and women, who have long served unofficially in combat roles, may now formally join combat units. The justification on which the Supreme Court’s decision in Rostker depended—that there was no reason to have women register for a combat draft system if they couldn’t serve in combat—no longer holds. Interestingly, in a footnote, Judge Miller also remarked that “[t]he average woman could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required. Combat roles no longer uniformly require sheer size or muscle” (emphasis in original). The persistence of a male-only draft cannot therefore be said to serve Congress’s legitimate objective of raising and supporting armed forces.

In also rejecting the defense’s arguments for a stay of proceedings while the commission develops recommendations for Congress, Miller noted that “the Commission is not set to release its final report until 2020,” and “[t]here is no guarantee that the Commission will recommend amending or abolishing the MSSA—and, even if it does, Congress is not required to act on those recommendations.” Because there is no guarantee that Congress will act, regardless of what the commission recommends, it is proper for the judiciary to step in to resolve the constitutional infringement. “Even constitutionally mandated deference does not justify a complete and indefinite stay when parties allege that the federal government is presently violating their constitutional rights.”

Judge Miller’s order was for declaratory, rather than injunctive, relief, meaning that he provided a legal conclusion but did not direct the defendants or any other government body to do anything in response. The government will likely appeal the ruling to the Court of Appeals for the Fifth Circuit.