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The Military Draft is Sexist

By Tyler Bauer

Late last month, a federal judge in Texas ruled that the military draft – which requires all eighteen-year-old American men to register with the Selective Service System (which is authorized by the Military Selective Service Act) – is unconstitutional. Interestingly, the judge didn’t find an issue with the concept of the draft itself. Instead, the judge found that requiring only males to register for the draft is the issue. Since this is a new, groundbreaking case, I think it’s necessary to take a deeper look at why the Selective Service System may need to change – or perhaps even do away with – the draft.

The Draft’s History of Gender Discrimination

This wasn’t the first time the draft has come under scrutiny for gender discrimination. In fact, back in 1980, a number of men challenged the Military Selective Service Act (MSSA). This challenge was upheld by the district court, and eventually made its way up to the Supreme Court as Rostker v. Goldberg. The men who brought the complaint argued that, since only men were required to register for the draft, the draft was unconstitutional under the Due Process Clause of the Fifth Amendment, which provides that no one shall be “deprived of life, liberty, or property without due process of law.” In other words, under the Fifth Amendment, everyone must be treated the same by the federal government, regardless of their race, sex, etc. In this scenario, the men contended that they were being treated differently due to sex.

While the men were technically correct (objectively speaking, men and women were being treated differently by the federal government), the Supreme Court held in 1981 that the draft did not violate the Fifth Amendment because women were not permitted to serve in combat roles. Therefore, women were ineligible for the draft.

This has been settled law for quite some time, but it has not gone unchallenged in the nearly four decades since this case. There have been a number of challenges based on sex, including many by the plaintiffs in last month’s case, the National Coalition for Men. All of these cases have fallen short of ruling the draft unconstitutional, though.

It is worth noting that there have also been a number of challenges based on the Thirteenth Amendment, which outlawed slavery and involuntary servitude. Although this argument has never been recognized to the point where the draft was in jeopardy, I think it’s a good legal argument. However, since this isn’t relevant to the case at hand, I’ll save this for another day.

The Legal Reasoning Behind this Decision

As I mentioned earlier, the legal basis for the judge’s decision in National Coalition for Men v. Selective Service System is the Due Process Clause of the Fifth Amendment.

To avoid all of the boring legalese, it basically comes down to this: If the government is discriminating, it has to be for a very good reason. Additionally, the discrimination has to be necessary to achieve the government’s goal, whatever it may be.

First, what’s the government’s goal? In this case, the government’s goal is a simple, important one – to raise an army. Any court would accept this goal as a valid one, so there’s no issue on this point.

Second, what is the discrimination? The discrimination in this case is having a male-only military draft. While this is clearly discriminatory on its face, it is necessary to go further into exactly why this is discriminatory. Men who fail to register for the draft may be fined, imprisoned, and denied certain federal benefits, such as federal student loans or obtaining employment with the federal government. Women, on the other hand, face no penalty for failing to register for the draft, and are not at risk of receiving any of the aforementioned penalties.

Third, we must consider whether the discrimination is necessary to achieve the government’s goal. Is requiring only men to register for the draft necessary to raise a military? Judge Gary Miller correctly said no, that requiring only men to register for the draft is not necessary to raise a military. Logically, one may wonder why. To spare you from countless pages of legal analysis, Judge Miller held that, since women can – and do – serve in combat roles, having a male-only draft is not necessary to raise an army. Therefore, the discrimination has no valid purpose, and shouldn’t be allowed. As a result, Judge Miller ruled that the male-only military draft is unconstitutional.

What’s Next?

Seeing as Judge Miller made his decision just a few weeks ago, it’s hard to say what’ll happen next. In the past, every attempt to challenge the draft on the basis of gender discrimination has been shot down by a higher court. This is still a possibility, as the Court of Appeals for the Fifth Circuit and the Supreme Court could still reverse Judge Miller’s decision. I would expect the Court of Appeals to reverse Judge Miller’s decision and, in the event the Court of Appeals affirms, I would expect the Supreme Court to reverse the decision.

Of course, there is an alternative to continuing the legal battle – the Selective Service System could be changed to require the registration of men and women for the draft. I think this is also unlikely, though, since the Selective Service System has been reluctant to change in the past.

Additionally, Judge Miller didn’t order the Selective Service System to change their practice in any way. Therefore, I get the feeling that Judge Miller’s decision isn’t meant so much to be enacted than it is to read and circulated. I may be wrong, though. The judicial branch has a long history of giving deference when it comes to the military, so it’s entirely possible that Judge Miller didn’t order any action because he wanted to give the Selective Service System a chance to right its wrong.

In other words, it’s impossible to tell what will happen next. Will the Selective Service System appeal Judge Miller’s ruling? Will the Selective Service System require women to register for the draft? If so, will women who are now required to register for the draft seek legal action to avoid having to register? If they do, what legal basis would they have for resisting?

As you can see, this issue is far from over, and the possible results are too numerous to count.

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