SALT LAKE CITY — A Texas federal judge ruled Friday that the United States’ all-male military draft is unconstitutional, marking the biggest challenge the Selective Service System has faced since 1981, USA Today reported.
“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,” U.S. District Judge Gray Miller of the Southern District of Texas wrote in his opinion.
The ruling, however, did not directly order Congress to alter the draft policy, so it may be limited in terms of the change it can effect, according to USA Today.
The National Coalition for Men, a self-described “civil rights organization that aims to address the ways sex discrimination affects men and boys,” brought the case against the Selective Service System, arguing that an all-male draft is unfair to men.
Men are currently required to register for the draft within 30 days of their 18th birthday or risk losing eligibility for student loans, job training, and government jobs, as Fox News reported. Failure to register can also result in fines and imprisonment, The New York Times reported. Women can choose to serve in the military, but they are not required to register for the draft.
The draft was last invoked in 1973, toward the end of U.S. involvement in the Vietnam War, NBC News reported. The U.S. military is now volunteer-based, with the understanding the draft would only be invoked in the future in the case of a national emergency.
Marc Angelucci, attorney for the National Coalition for Men, told USA Today, “Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do.”
However, Angelucci said the Texas decision was largely “symbolic,” because Miller delivered his decision in the form of a declarative judgment and not an injunction, as USA Today reported. In other words, Miller didn’t order Congress to make specific changes to the draft system in order for it to be constitutional.
Background
The case is the latest development in an ongoing debate over whether the draft is necessary, and if it is, whether women should be included. After the House shot down a 2016 Senate bill that would have included women in the draft, Congress formed an 11-member National Commission on Military, National, and Public Service that same year to provide guidance on these two questions. The commission released an interim report in January, but didn’t clarify its stance on either of the issues, according to USA Today.
As USA Today reported, the issues have been hotly contested since 1945, when President Franklin D. Roosevelt proposed drafting women into the military due to a shortage of nurses. After the U.S. pulled out of the Vietnam War in 1973, the draft was discontinued in favor of an all-volunteer military. However, President Jimmy Carter relaunched the Selective Service System in 1980 to ensure the U.S. would be prepared in the case of a military emergency. Carter also suggested that women be drafted, but Congress rejected the proposal.
Either it’s yes, women should have to register just on the basis of equality, or no, women should not have to register because they have a different role in American society. – Joe Heck, chairman of the National Commission on Military, National, and Public Service
The issue came up again in the 1981 case Rostker v. Goldberg, in which the Supreme Court ruled that an all-male draft was “fully justified” because women weren’t eligible for combat roles, USA Today reported. However, after the Pentagon lifted all restrictions for women in military service in 2015, that justification can no longer be used.
In 2017, women made up 18.6 percent of the Department of Defense’s active enlisted members, according to a report from the Office of the Under Secretary of Defense, Personnel and Readiness.
“If there ever was a time to discuss ‘the place of women in the Armed Services,’ that time has passed,” Miller wrote in his ruling.
Reaction
However, this isn’t a sentiment everyone shares.
Joe Heck, chairman of the National Commission on Military, National, and Public Service, told USA Today that many people have a “visceral” reaction when asked if they think women should be required to register for the draft.
“When we pose this question to people, it’s not like they say, ‘Oh, let me stop and think for a minute.’ They have an answer,” Heck said. “Either it’s yes, women should have to register just on the basis of equality, or no, women should not have to register because they have a different role in American society.”
Although not all women support the idea of a mandatory draft, others see it as a long-overdue nod to equality and acknowledgment of women who already serve in the military, the Dayton Daily News reported.
Kate Germano, a retired Marine who served for 20 years, told The New York Times that requiring women to register for the draft "would be an advantage to the country, and also for men, who have bore the preponderance of the burden since the draft was established."
The Pentagon wrote in a 2017 report that the Selective Service System should be maintained and that women should be included in the draft.
“It would appear imprudent to exclude approximately 50 percent of the population — the female half — from availability for the draft in the case of a national emergency,” the report reads.
Still, everyone will have a chance to weigh in on the issue. The commission has already received more than 3,000 comments from the public and will continue to accept them through the end of 2019, USA Today reported.
The commission is set to release its final report in March 2020, but its recommendations are advisory. Ultimately, Congress and the president will have to decide whether the draft should continue and whether women should be included. It's unclear what that decision would be.