“This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the law”
Back in 2016, the U. S. Senate considered a military spending bill that would require women to register for the draft when they turn 18. The measure was ultimately removed from the bill, but a Texas federal judge ruled Friday that the male-only military draft is unconstitutional.
In 2015, the Obama administration opened military combat roles to women, and in 2016, the Obama White House announced his support for women registering for the draft.
Following these moves, Representative Duncan Hunter (R-CA) introduced a Selective Service registration requirement for women. It was ultimately not included in the final bill, but a commission was set up to determine the future of the Selective Service system.
The New York Times reported in 2017:
The Obama administration opened combat roles to women back in December 2015, stirring a national conversation that, as demonstrated by the article’s resurgent popularity, has continued to this day.
Representative Duncan D. Hunter, Republican of California, introduced the initial amendment to expand the draft to women in April 2016, but voted against it. Mr. Hunter introduced it to “force the conversation” in Congress about the administration’s new policy, said his chief of staff, Joe Kasper.
Though the amendment passed 32-30 in the House Armed Services Committee, Claude Chafin, a spokesman for the committee, told The Times it was clear it would not survive a vote by the full House. So the provision was taken out of the House version of the bill. And while the amendment passed the Senate, it was ultimately stripped out of the final Senate version of the bill as well. Instead, the final law, as passed in December, established a national commission to study the draft’s “utility and future use.”
A San Diego-based men’s advocacy group, the National Coalition For Men, joined a Texas man in suing the federal government over the male-only military draft registration requirement.
A federal judge has ruled that a men-only draft is unconstitutional, but he stopped short of ordering the Selective Service System to register women for military service.
The Houston judge sided with a San Diego men’s advocacy group that challenged the government’s practice of having only men sign up for the draft, citing sex discrimination in violation of the Fifth Amendment’s equal protection clause.
“This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the law,” wrote U.S. District Judge Gray Miller of the Southern District of Texas.
The lawsuit was filed in 2013 against the Selective Service System by Texas resident James Lesmeister, who later added San Diego resident Anthony Davis and the San Diego-based National Coalition for Men as additional plaintiffs.
The two men had standing to sue the government because they were within the age range of 18 to 26 in which men in the United States are required to register with Selective Service.
The ruling is a declaratory judgment, not an injunction, so the judge did not stipulate that the Selective Service system must now include women.
Quoting the Supreme Court’s ruling overturning bans on same-sex marriage, Miller ruled that restrictions based on gender “must substantially serve an important governmental interest today.“
The judge denied the government’s request for a stay of the ruling. Justice Department officials did not immediately respond to a request for comment.
But the ruling came in the form of a declaratory judgment and not an injunction, meaning the court didn’t specifically order the government how to change Selective Service to make it constitutional.
“Yes, to some extent this is symbolic, but it does have some real-world impact,” said Marc Angelucci, the lawyer for the men challenging the draft. “Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do.”
The commission studying whether or not to discontinue Selective Service registration and to determine, if it is retained, whether or not to include women in the military draft is due to Congress and the White House in March, 2020.
USA Today continues:
Men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits such as federal employment and student loans. Women cannot register for Selective Service.
The ruling comes as an 11-member commission is studying the future of the draft, including whether women should be included or whether there should continue to be draft registration at all.
The National Commission on Military, National and Public Service released an interim report last month giving no hints on where it would come down on those questions. But, commission chairman Joe Heck told USA TODAY, “I don’t think we will remain with the status quo.”
The government had argued that the court should delay its ruling until that commission makes its recommendations. But Miller said Congress has been debating the issue since 1980, and the commission’s final report won’t come until next year. And because the commission is advisory, there’s no guarantee Congress will act, he said.
Miller said Congress has never fully examined whether men are physically better able to serve than women. In fact, he noted in a footnote, “the 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.”
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