Federal Judge Rules Male-Only Draft is Unconstitutional

By Austin Schoonmaker | February 27, 2019

A federal recently ruled the Selective Service System’s men-only registration to be unconstitutional, walking back a 1981 Supreme Court decision that barred from women from being included in the draft. US District Court Judge Gray Miller, based in Houston, blasted the government’s position of classifying women as unfit for the draft, saying “this argument smacks of archaic and over broad generalizations about women’s preferences.”

Miller writes “historical restrictions on women in the military may have justified past discrimination” but now, the roles of both men and women have often become one and the same. The judge’s decision, however, will have no immediate effect, nor does it block the current government policy of the draft.

If the decision were to be appealed, it would go up to the New Orleans-based 5th US Circuit Court of Appeals before reaching the Supreme Court. While it is uncertain whether it would make it all the way to that level, The Selective Service System had urged Miller to reject the case, citing it current research being conducted on a male-only registration policy.

Congress eliminated the draft in the early 1970s, but men ages 18-25 are required by law to provide information to the Selective Service System. In 1981, the Supreme Court decision of Rostker v. Goldberg ruled that women could be excluded from the draft on the grounds that they were not “similarly situated” as males are for combat purposes.

This decision has increasingly become less precedent, as women’s role in the military has dramatically expanded. In 2013, the Department of Defense lifted the ban on women in combat, which Miller cites as clear progress towards equal representation for women in the military.

Miller writes “At its core, [the Selective Service System] argument rests on the assumption that women are significantly more combat-averse than men.” He cites no evidence supporting this claim, calling it “an ancient canard.”

The National Commission on Military, National, and Public Service issued a report last month stating, “We are carefully considering and actively seeking input on this critical question.”