While the Supreme Court has not decided whether or not they will hear this challenge, this article discusses how the American Civil Liberties Union and the National Coalition For Men have submitted a petition for a writ of certiorari regarding the all-male draft as well as opens up discussion regarding the future of national draft registration. The petition can be read here.
In Rostker v Goldberg (1981), the court found that the all-male draft was constitutional in a 6-3 ruling stating that “the primary function of the draft was to form combat-ready forces… At the time, women were excluded from combat roles.” Since, women have been included in all military roles since 2015, and the military is 17% women. In 2019, US District Judge Gray H Miller ruled that draft registration requirements are unconstitutional due to the fact that “women are no longer barred from combat roles” and that the justification from 1981 is not currently valid. “The government appealed, and a three-judge panel of the U.S. Court of Appeals for the 5th Circuit overturned Miller’s decision, citing Rostker as the beginning and ending of the matter.” This writ calls for the overturning of Rostker.
While the draft hasn’t been actively used in decades, registration is still an enforced action upon the 18th birthday of all males. It is also noted that military action has changed in the past 40 years, and that “Noncombat positions comprise nearly 80 percent of today’s military occupations.” The writ, however, also specifically states that “Congress has considerable latitude to decide how to respond. It could require everyone between the ages of eighteen and twenty-six, regardless of sex, to register; it could rescind the registration requirement entirely; or it could adopt a new approach altogether, such as replacing the [draft] registration requirement with a more expansive national service requirement.” It will be interesting to see whether or not the court decides to hear this case as well as hear justices' positions on it, and what possible changes could arise in the future regarding this topic.
3 comments:
I don't think this case is a high priority, but if the Supreme Court chooses to hear it in the near future, I agree that there should be no discrimination based on gender with respect to the draft. Like you said, this case will certainly be an interesting argument based on the equal protection clause of the 5th amendment vs. rational basis analysis. To begin, perhaps it made sense in recent history to exclude women from compulsory draft registration because they emphasized “combat ready roles.” Here, rational basis analysis would point to men being more suited toward combat and the current society’s incorrect belief that women are not meant to fight (and if we have enough men to fill the draft, no need for women). However, now it appears that society has developed in many ways that should include women in the draft. One, weapons and wars in general use such advanced technology that actual combat requiring strength and sometimes coordination is far less frequent. As a result, men being more suited for combat should not be a sizeable enough concern for the rational basis analysis. It is also likely (due to the proliferation of nuclear weapons) that the 80% of non-combat roles would likely remain relatively constant if the U.S. ever does need the draft again. So, a draft might not even require combat roles. Finally, society has progressed to a point where we can treat women and men with far more equality (under 5th amendment) because we realize they are actually virtually equal. This is why women were not ultimately given the lower drinking age in Craig v. Boren--that intermediate strict scrutiny still didn’t hold. Now, it just seems unfair to subject men to more military service (and the possibility of harm) when we don’t need brunt strength and coordination to dominate our military.
With women now making up 17% of the military, it makes sense why groups would want to declare an all-male military draft unconstitutional. It is true that the number of women in military is disproportionate compared to the number of their male counterparts, however, as the years progress, this number is only going to increase. A military draft would be terrifying for anyone, which is why I don't see why men should be the only ones included in it. Women don't have to be drafted only as soldiers, but rather as medical assistance, strategists, and other crucial roles that are required in the event of a war. However, I do believe there are more pressing issues to addressed at this point in time, and while there is a case to be made that the draft is unconstitutional, it is not an urgent matter. For now, I believe we should gear our focus towards current problems and address this one when needed.
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