Male only draft declared unconstitutional

  • 25 February 2019
  • NormanL

A U.S. District Court judge ruled the nation's all male military draft is unconstitutional, and that the time has come for a serious discussion on whether women should be included in any selective service scheme:

The case was brought by the National Coalition For Men, a men's rights group, and two men who argued an all-male draft was unfair.

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 Selective Service System, including whether women should be included or whether there should continue to be draft registration at all. The U.S. has maintained an all-volunteer military after the draft was discontinued in 1973, but the Selective Service System was reactivated in 1980 as a contingency in case military conscription becomes necessary again.

The federal government is still debating whether selective service should continue to exist at all:

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."

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.

The all volunteer force helped win the Cold War, and has been deeply engaged in fighting the War on Terror for almost 19 years, with women playing increasingly essential, and increasingly dangerous, roles. Does all of that mean the men-only selective service system should end? Perhaps it's time has passed.