Abby N. Virio, Staff Writer
On Feb. 22, Federal Judge Gray Miller in Houston, Texas ruled that the Selective Service Act, commonly known as the draft, should include both men and women. The case was brought by men’s rights group The National Coalition for Men, who hoped to overturn the historic precedent which excludes women from mandatory service in the military.
Currently, the Selective Service Act only refers to “male persons,” in stating who must register for the draft at age 18. For more information regarding the draft requirements, visit the SSS webpage.
However, in light of changing restrictions within the military allowing women to perform combat operations, men’s rights activists make the argument that women should now equally bear the burden of the draft.
The federal ruling in Texas is not the first time women’s military participation has reached the courts. In 1980, President Jimmy Carter sought the activation of the draft and advised Congress to revisit the specifications of the draft to include women in specific competences. Congress chose not to do so. In a lawsuit brought by several men in 1981, a three-judge District Court held that the decision on who to draft rightfully belonged to Congress and did not violate the Fifth Amendment. According to the case, known as Rockster v. Goldberg, Congress has the power to determine the specific needs of the U.S. military and who should fill them as a matter of military need, not equality of the sexes (read more at Cornell’s Law library). The Clinton administration also revisited the concept of a female draft but decided against, citing the exclusion of women from combat roles.
In December 2015, Defense Secretary Ash Carter announced that the Department of Defense would remove all gender-based restrictions on military service. This process is ongoing. In response, men’s rights activists assert that if women can perform all the same duties as men within the military, including combat roles, women should share equal burden of the draft. The Texas ruling specifically cites fines imposed upon those who do not register for the draft as example of this burden.
Critics of the ruling cite concerns beyond combat roles. D.C. McAllister, writer for the conservative outlet “The Federalist,” rammed political correctness and feminists in her op-ed criticizing the decision. “It’s one thing for women who want to volunteer for such service, but it is another thing entirely to require all women to do the same… Fighting to protect their homeland is their duty as men, while maintaining the homeland is the duty of women. That’s not on account of societal norms but the dictates of nature,” McAllister wrote.
Other critics question whether the decision has real-life implications, as a draft has not been issued since 1973 during the Vietnam War. To this day, drafts remain extremely unpopular. The issue is further complicated by the experiences of women currently in military service. In 2018, CNN reported on rampant sexual assault of women in the military, claiming that “1 in 4 women are assaulted by someone in their chain of command.” Such allegations support the idea that women and men do not share equal experiences within the military at this time.
Proponents of drafting women claim that expanding Selective Service registration to include women would earn respect for American women. In 2016, liberal outlet “HuffPost” listed nine reasons the draft should include women. Reasons included equal pay, leadership opportunities, a sense of community engagement, and disproving the belief that women have lesser or different capabilities from men.
Regardless of opinion, women will not be signing up for the draft anytime soon. The Houston court ruling was only declaratory, not injunctive. This means no actions will be taken to correct draft requirements, only a declaration of the rights of the plaintiff. Furthermore, the Houston court ruling will need to jump through more hoops, including certain appeals and a potential Supreme Court weigh-in. Judge Miller made clear that the separation of powers and ripeness doctrine complicate the case. Due to the fact that Congress has been vested the power to decide who to draft, and that revising the draft is under consideration in Congress, the case may not be suitable to continue through the court system. If the case does reach the Supreme Court, the ruling appears unlikely to stand. The current Roberts Court has a strong conservative leaning, in addition to precedent arising from Rockster v. Goldberg.
Read the official ruling here.