By Ken StoneEven though America hasn’t had a military draft since 1973, men — but not women — are required to register with the Selective Service.
A federal judge Friday said that must change — calling the system unconstitutional but not requiring women 18-25 to register*.
“The male-only registration requirement of the Military Selective Service Act, 50 U.S.C. § 3802(a), violates the Due Process Clause of the Fifth Amendment to the United States Constitution,” says Miller’s “final judgment.”“Women are now allowed in combat, so this decision is long overdue,” said Marc Angelucci, attorney for NCFM. “After decades of sex discrimination against men in the Selective Service, the courts have finally found it unconstitutional to force only men to register.”
Indeed, Miller wrote: “While historical restrictions on women in the military may have justified past discrimination, men and women are now ‘similarly situated for purposes of a draft or registration for a draft.’ … If there ever was a time to discuss ‘the place of women in the Armed Services,’ that time has passed.”
USA Today noted that the ruling came in the form of a declaratory judgment and not an injunction, “meaning that the court didn’t specifically order the government how to change Selective Service to make it constitutional.”
The paper quoted attorney Angelucci as calling the ruling symbolic to some extent.
“Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do,” he said.
Angelucci said that despite the absence of a draft, men still face prison, fines and denial of federal loans for not registering or for not updating the government of their whereabouts. (But in recent decades, no man has been prosecuted for failing to register.)
“Since women will be required to register with the Selective Service,” he said Saturday in a statement, “they should face the same repercussions as men for any noncompliance.”
Angelucci, a Los Angeles attorney, previously worked as a family law attorney for the Men’s Legal Center in San Diego.
On Monday, a spokesperson for the Department of Justice said it declined to comment. Rep. Duncan Hunter, the Alpine Republican who once made an effort to require women to register for the draft, did not respond to a request for comment.
The New York Times reported at the time: “Representative Duncan D. Hunter … 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.”
Miller was appointed a federal judge by President George W. Bush on April 25, 2006.
Last April, Miller dealt the government a blow by saying NCFM could proceed with the case even though the coalition’s co-plaintiffs, James Lesmeister and Anthony Davis, had never been drafted or risked being prosecuted, because they both registered for the draft.
“Regardless, both have a continuing obligation to update SSS with changes to their information. That obligation, paired with the requirement to register with SSS, constitutes an injury sufficient for Article III standing,” Miller wrote.Courthouse News reported: “In its dismissal motion, the government said the challengers are trying to intrude on Congress’s authority to oversee military affairs, and their claims are precluded by the U.S. Supreme Court 1981 ruling in Rostker v. Goldberg, involving men who made similar sex-discrimination arguments about draft-registration rules.
“Justices Byron White wrote a dissent, joined by Justice William Brennan, who also joined a separate dissent by Justice Thurgood Marshall. The 6-3 majority in Rostker held that because women were excluded from combat, there was no need to draft them, so the male-only rule was constitutional.”
But since the military now allows women to fight alongside men, that reasoning didn’t hold.
“Regarding Rostker’s holding that the male-only draft did not violate the Constitution, the factual circumstances of this case are different. … Now, women can serve in combat roles,” Miller wrote.
The lawsuit dates to April 2013 in Los Angeles federal court. But since Lesmeister was not a coalition member, the case was transferred to the Southern District of Texas — Lesmeister lives near Houston.
In August 2017, the NCFM added member Anthony Davis as a plaintiff.
“Judge Miller found the addition of Davis was enough for the coalition to establish ‘associational standing,’” said Courthouse News.
In his 19-page judgment Friday, Miller added: “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’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.”
Miller says the government didn’t prove that the male-only registration requirement continues to be substantially related to Congress’s objective of raising and supporting armies.
According to government figures, 9 percent of U.S. men 18-25 weren’t registered for the draft in 2017.
The Selective Service System had nearly 17 million registrant names and addresses on file.
*Correction: An earlier version of this story incorrectly said the judge ordered the government to have women register for the draft.
Updated at 9:45 a.m. Feb. 25, 2019
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