Future of the Draft: Could men’s rights and feminists groups score a shared victory?

By Rafael Santa Maria (PO ’20)

A Texas court ruling might end the Military Selective System’s male-only draft policy.

In a potentially groundbreaking decision, Judge Gray H. Miller of the federal court for the Southern District of Texas ruled that the military draft’s exclusive targeting of men is unconstitutional. In his opinion, Judge Miller notes that, “Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles” when the Military Selective Service Act (MSSA) was created and signed into law.

Highlighting the Department of Defense’s opening of combat roles to women in 2013, Miller dismissed the male-only draft policy of the MSSA as obsolete. Miller notes that Congress did not explicitly use the physical eligibility of women as a reason for excluding them from the draft when the MSSA was originally passed. Arguing that the Selective Service system operates under assumptions of traditional gender roles as well as poor substantive evidence, Miller reasons that there is no constitutional reason to categorically exclude women from the draft provided they can meet the requirements for combat.

The court’s decision contradicts the ruling of the 1981 Supreme Court case Rostker v. Goldberg, which determined that the MSSA did not violate equal protection. However, unlike the decision in Rostker, the Southern District Court’s ruling does not establish any sort of binding legal precedent.

Instead, the ruling simply functions as a declaratory statement and not an injunction (a formal court order mandating or banning a specific action). Miller’s decision, while undoubtedly significant, does not require the government to take action nor does it suggest any action that the government should take. Furthermore, the ruling coincides with congressional efforts to reevaluate the future of draft registration.

The National Commission on Military, National and Public Service, an organization established by Congress, has already conducted extensive research on mandatory draft registration for women. However, the commission’s findings have not yet been finalized into a proposal. In fact, the commission’s chairman Joe Heck, a former general, questioned the need for mandatory military service altogether, stating that the youth “overwhelmingly want to serve, they just don’t want to be told to do it.”

Although the legal ruling does not provide concrete implications for the MSSA, chairman Heck suggested that the current draft system would most likely be changed in some undetermined way by Congress. Moreover, while the ruling and Heck’s comments do little to clarify the legal future for a gender-inclusive draft, they do even less to quell the ongoing conversation about female compulsory service. This disputed topic will likely garner more attention considering that the victorious plaintiffs of this case were none other than the National Coalition for Men (NCFM), a controversial men’s rights group.

Unsurprisingly, the NCFM celebrated the ruling with a press release that proudly stated, “women will be required to register with the Selective Service.” That is, despite the fact that the court denied the NCFM’s request for an injunction, limiting the ruling to a mere declaratory status. The group’s attorney Marc Angelucci presented the case as an emphatic defeat of “discrimination against men in the Selective Service.”

Interestingly, the NCFM’s victory does not necessarily contradict preexisting aims of feminist scholars and organizations. In a 1984 article published in the Oregon Law Review, Santa Clara University Law Professor Stephanie M. Wildman argued that the aforementioned Rostker case led to a “sex discriminatory result.” This view is reflected by the National Organization for Women, an activist group that in 2016 announced support for “equal treatment for women and men when it comes to military service,” including gender-equal conscription.

However, despite the unexpected common ground between men’s rights groups and feminists regarding the draft, studies suggest that women in the military actually disapprove of mandatory drafts in general. A 1998 article in the journal Gender Studies found that most servicewomen neither sought gender-equal opportunities for combat roles nor believed that the draft should be mandatory for any gender. Instead, many servicewomen acknowledged that men and women possess different physical attributes and therefore find themselves in different military roles. Also, servicewomen in the article argued that only those who meet the criteria should serve in combat, regardless of gender.

Altogether, this lack of consensus among both legal and social sector organizations regarding the MSSA means that the consequences of Judge Miller’s ruling remain indeterminate. However, the ruling does call into question the efficacy of the compulsory draft, which has declined in both military and political relevance since it was last used in 1973. Again, judging from reports collected by the National Commission on Military, National and Public Service, it appears unlikely that the MSSA will stay intact.

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