Federal court in Texas rules male-only draft is unconstitutional

[MillerEP 30,500]

https://www.usatoday.com/story/news/nation/2019/02/24/military-draft-judge-rules-male-only-registration-unconstitutional/2968872002/

Quote

With women in combat roles, a federal court rules the male-only draft unconstitutional

A federal judge in Texas has declared that the all-male military draft is unconstitutional, ruling that "the time has passed" for a debate on whether women belong in the military.

The decision deals the biggest legal blow to the Selective Service System since the Supreme Court upheld the draft in 1981. In Rostker v. Goldberg, the court ruled that the male-only draft was "fully justified" because women were ineligible for combat roles.

But U.S. District Judge Gray Miller ruled late Friday that while historical restrictions on women serving in combat "may have justified past discrimination," men and women are now equally able to fight. In 2015, the Pentagon lifted all restrictions for women in military service. 

The case was brought by the National Coalition For Men, a men's rights group, and two men who argued the all-male draft was unfair.

Men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits such as federal employment and student loans. Women cannot register for Selective Service.

The ruling comes as an 11-member commission is studying the future of the draft, including whether women should be included or whether there should continue to be draft registration at all.

The National Commission on Military, National and Public Service released an interim report last month giving no hints on where it would come down on those questions. But, commission chairman Joe Heck told USA TODAY, "I don’t think we will remain with the status quo."

The government had argued that the court should delay its ruling until that commission makes its recommendations. But Miller said Congress has been debating the issue since 1980, and the commission's final report won't come until next year. And because the commission is advisory, there's no guarantee Congress will act, he said.

Miller said Congress has never fully examined whether men are physically better able to serve than women. In fact, he noted in a footnote, "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."

Quoting the Supreme Court's ruling overturning bans on same-sex marriage, Miller ruled that restrictions based on gender "must substantially serve an important governmental interest today."

The judge denied the government's request for a stay of the ruling. Justice Department officials did not immediately respond to a request for comment. 

But the ruling came in the form of a declaratory judgment and not an injunction, meaning the court didn't specifically order the government how to change Selective Service to make it constitutional.

"Yes, to some extent this is symbolic, but it does have some real-world impact," said Marc Angelucci, the lawyer for the men challenging the draft. "Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do."

 

[NeverMarryAStripper 21,921]

I’m not sure why they weren’t already having women register. Since there current is no draft it wouldn’t really effect anything. Even If there is a draft in the future, having women registered wouldn’t necessarily mean they would have to be included in a draft. Also, since when has the government come down on the side of less invasion of privacy

 

[XYZ 2,154]

There’s no more draft. I don’t understand this declaration.

[TwiceHorn 31,536]

16 minutes ago, XYZ said:

There’s no more draft. I don’t understand this declaration.

50 USC 3082

Quote

§3802. Registration

(a) Except as otherwise provided in this chapter it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 1101(a)(15) of title 8, for so long as he continues to maintain a lawful nonimmigrant status in the United States.

(b) Regulations prescribed pursuant to subsection (a) may require that persons presenting themselves for and submitting to registration under this section provide, as part of such registration, such identifying information (including date of birth, address, and social security account number) as such regulations may prescribe.

As usual, the reporting is inaccurate.  There is no draft, but there is a draft registration that applies only to males.

[Earl Haffler 597]

1 hour ago, XYZ said:

There’s no more draft. I don’t understand this declaration.

There was one?

[Cajun 11,740]

Fuck, beat me to it.

[futureman 22,544]

the draft is coming up in april and I can tell you no GM is wasting their time picking some stupid woman to fight in the trenches for him. 

[Thetexashammer 1,062]

I'll shoot the fuck out of a man or woman that threatens any of me or my soldiers, don't give a shit. Unless she's hot. Then we can have a different discussion. 

[EuroHorn 3,268]

2 hours ago, futureman said:

the draft is coming up in april and I can tell you no GM is wasting their time picking some stupid woman to fight in the trenches for him. 

It’s ma’am!

[phdhorn 6,224]

I got no problems whatsoever with females in a draft:

[Nice Guy Eddie 13,523]

I was curious why the Selective Service process is still in effect.  Apparently others are as well, but here is what the govt claims:

• the current system could institute a draft within 193 days
• current system costs $24m/annually.
• They could reduce the amount to $18m to only maintain the registration listing but it would extend the draft startup to 830 days
• If they stopped altogether, they estimate a draft startup to take 920 days, and the cost would be $465m 

I probably don't appreciate the details but I find it hard to believe that it would take 2.5 years and cost that much to go from zero to a draft if this agency was eliminated.

It must be a weird job where they must be constantly planning and are prepared to rev up the draft process even though its been almost 50 years since it was needed. 

 

[SuingToGetAMessageBoard? 3,861]

From a practical standpoint, there seems to be a difference between women in combat as it has been for the last decade and women in the draft.

 

Volunteering for combat I imagine has a strong self-selection element toward the upper side of the bell curve of physical ability.  You're not getting the 90 pound pixie or the bookworm that can't operate a hammer.

With draft, you're getting a lot of chaff for a little wheat in the women.

 

I can't imagine there are enough draftable (i.e., non-officer) positions for those types.

[You don't know me 1,161]

13 hours ago, Cajun said:

Fuck, beat me to it.

That's what she said?

[Gene Parmesan 4,014]

16 minutes ago, SuingToGetAMessageBoard? said:

From a practical standpoint, there seems to be a difference between women in combat as it has been for the last decade and women in the draft.

 

Volunteering for combat I imagine has a strong self-selection element toward the upper side of the bell curve of physical ability.  You're not getting the 90 pound pixie or the bookworm that can't operate a hammer.

With draft, you're getting a lot of chaff for a little wheat in the women.

 

I can't imagine there are enough draftable (i.e., non-officer) positions for those types.

Plus they'd always be worried about their makeup and purses.

['stache 21,866]

Wars no longer need million man armies. The heavy lifting is done by long range missiles and soon drones. Our volunteer army is more than sufficient. I guess we keep registries just in case for worst case scenarios. I'm pretty sure these days kids aren't going to just say "okay" if told "hey you are hereby required by law to drop your life and go shoot people you don't know because 'murica."

[lemonlime 5,503]

1 minute ago, 'stache said:

Wars no longer need million man armies. The heavy lifting is done by long range missiles and soon drones. Our volunteer army is more than sufficient. I guess we keep registries just in case for worst case scenarios. I'm pretty sure these days kids aren't going to just say "okay" if told "hey you are hereby required by law to drop your life and go shoot people you don't know because 'murica."

That's why we should have the draft.  If we're going to send kids to war in say Iraq or Thanksgiving on the border for an "emergency" we should all have skin in the game, and it shouldn't be on the backs of the few who volunteered.  Congresspeople should be worrying about their kids getting drafted.

[Rusty Shackelford 414]

[You don't know me 1,161]

28 minutes ago, lemonlime said:

That's why we should have the draft.  If we're going to send kids to war in say Iraq or Thanksgiving on the border for an "emergency" we should all have skin in the game, and it shouldn't be on the backs of the few who volunteered.  Congresspeople should be worrying about their kids getting drafted.

I'm not sure that congresspeople would ever worry about their kids getting drafted.

I ain't no senator's son.

[High Plains Drifter 11,052]

1 hour ago, SuingToGetAMessageBoard? said:

From a practical standpoint, there seems to be a difference between women in combat as it has been for the last decade and women in the draft.

 

Volunteering for combat I imagine has a strong self-selection element toward the upper side of the bell curve of physical ability.  You're not getting the 90 pound pixie or the bookworm that can't operate a hammer.

With draft, you're getting a lot of chaff for a little wheat in the women.

 

I can't imagine there are enough draftable (i.e., non-officer) positions for those types.

 

Have looked around lately? The same would be true for men also.

[Telegraph_it 3,359]

Pretty sure I'm too fat to be drafted. At least that is what I learned from the thread with the BMI chart. 

[SDG 3,319]

It sounds like its about fairness. As a male you cannot receive financial aid or gov student loans without selective service registration (there may be other benefits that im not thinking of).  This just levels the playing field.  

[Cajun 11,740]

8 hours ago, Telegraph_it said:

Pretty sure I'm too fat to be drafted. At least that is what I learned from the thread with the BMI chart. 

You swallow a lot of aggression?

Along with a lot of pizza?

[Irwin F Fletcher 3,550]

The remake of Stripes could be interesting.......

"Guys dig me, because I rarely wear underwear and when I do it's usually something unusual."

 

[Grade of D as in David 13,253]

If we're remaking Stripes I demand we stop filming when they graduate basic training.

[NBMisha 224]

Should we need the actual draft again, the conversation will be about issues other than who's in the pool.  It will be about what the fuck?!

My draft number was 51, read in the Daily Texan right before Ph 401k, November, 1972.  Last lottery, as I recall.

[SquishMitten 10,435]

Does registering for SSS also register you to vote? If it doesn’t, it should.

Edit to remove a cloakroom-ish comment

Edited February 26, 2019 by SquishMitten

[South Austin 52,603]

"Fuck the draft." -- Cohen v. California, 403 U.S. 15 (1971).

[TwiceHorn 31,536]

One thing that's odd about this is that it shows what a shifting Constitutional standard we have in discrimination cases.  To sustain a facially (meaning right there on it's face it says 'male" and excludes "female") discriminatory law such as this, it has to survive strict scrutiny, meaning it has to be supported by a compelling government interest in the discrimination and be the most narrowly tailored way to support that interest.

This decision rested on the determination outside the context of the draft (or draft registration) that women are fit to serve in combat roles, so the earlier compelling interest is no longer compelling.  The earlier case rested on the determination that women were not fit to serve in combat roles, which was deemed at the time to be a compelling interest (of course the question remains why shouldn't women have been drafted for non-combat roles, which was the subject of a dissent by White, Marshall, and Brennan).

It seems kind of odd that the Constitutionality of a law depends on how Congress and the DOD view a separate, but related issue.  One would tend to think that Constitutional principles are a bit more universal and immutable than that.

Then again there's Dred Scott and Korematsu, among others, but even those aren't dependent on congressional findings.

I'm not saying it's a wrong decision.  Just noting an area that is somewhat open to criticism.

Edited February 26, 2019 by TwiceHorn

[Js1 85,574]

34 minutes ago, SquishMitten said:

Does registering for SSS also register you to vote? If it doesn’t, it should.

Edit to remove a cloakroom-ish comment

It does not, because green card holders and certain immigrants also have to register.  

[SuingToGetAMessageBoard? 3,861]

25 minutes ago, TwiceHorn said:

One thing that's odd about this is that it shows what a shifting Constitutional standard we have in discrimination cases.  To sustain a facially (meaning right there on it's face it says 'male" and excludes "female") discriminatory law such as this, it has to survive strict scrutiny, meaning it has to be supported by a compelling government interest in the discrimination and be the most narrowly tailored way to support that interest.

This decision rested on the determination outside the context of the draft (or draft registration) that women are fit to serve in combat roles, so the earlier compelling interest is no longer compelling.  The earlier case rested on the determination that women were not fit to serve in combat roles, which was deemed at the time to be a compelling interest (of course the question remains why shouldn't women have been drafted for non-combat roles, which was the subject of a dissent by White, Marshall, and Brennan).

It seems kind of odd that the Constitutionality of a law depends on how Congress and the DOD view a separate, but related issue.  One would tend to think that Constitutional principles are a bit more universal and immutable than that.

 Then again there's Dred Scott and Korematsu, among others, but even those aren't dependent on congressional findings.

 I'm not saying it's a wrong decision.  Just noting an area that is somewhat open to criticism.

The order discusses the tension between the Army clause of Art I and Am XIV and the deference given to Congress when acting on an Art I power.  So that may be the basis for difference between a DoD view and a Congressional view -- one is acting under an explicit Constitutional power.

[Brothahorn 10,087]

From a practical standpoint, there seems to be a difference between women in combat as it has been for the last decade and women in the draft.
 
Volunteering for combat I imagine has a strong self-selection element toward the upper side of the bell curve of physical ability.  You're not getting the 90 pound pixie or the bookworm that can't operate a hammer.
With draft, you're getting a lot of chaff for a little wheat in the women.
 
I can't imagine there are enough draftable (i.e., non-officer) positions for those types.

More women to cook and wash.

[TwiceHorn 31,536]

12 minutes ago, SuingToGetAMessageBoard? said:

The order discusses the tension between the Army clause of Art I and Am XIV and the deference given to Congress when acting on an Art I power.  So that may be the basis for difference between a DoD view and a Congressional view -- one is acting under an explicit Constitutional power.

Well, in the end, it boils down to "more enlightened" views of gender.  Just like the overruling of Dred Scott and Plessy and repudiation of Korematsu boiled down to more enlightened views of race.  I'm ok with that.

[SuingToGetAMessageBoard? 3,861]

1 minute ago, TwiceHorn said:

Well, in the end, it boils down to "more enlightened" views of gender.  Just like the overruling of Dred Scott and Plessy and repudiation of Korematsu boiled down to more enlightened views of race.  I'm ok with that.

That was half.  The other half was much more practical.  The order was, hey you don't have the evidence.  You didn't show me that enough combat roles require size and muscle, and you didn't show me that Congress was considering those things anyway when deciding on the draft.  Come back next time with a study analyzed by Congress and it might be Constitutional.  Just the intermediate scrutiny test.   That half isn't really "we are more enlightened about women."

 

"Thus, the relevant question is not what proportion of women are physically eligible for combat—it may well be that only a small percentage of women meets the physical standards for combat positions. However, if a similarly small percentage of men is combat-eligible, then men and women are similarly situated for the purposes of the draft and the MSSA’s discrimination is unjustified. Defendants provide no evidence that Congress ever looked at arguments on this topic and then made a “studied choice” between alternatives based on that information. Cf. id. at 71–72. Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.6 Thus, Defendants’ second proffered justification appears to be an “‘accidental by-product of a traditional way of thinking about females,’” rather than a robust, studied position. Rostker, 453 U.S. at 74 (quoting Califano v. Webster, 430 U.S. 313, 320, 97 S. Ct. 1192 (1977)). In short, while historical restrictions on women in the military may have justified past discrimination, men and women are now “similarly situated for purposes of a draft or registration for a draft.” Rostker, 453 U.S. at 78. If there ever was a time to discuss “the place of women in the Armed Services,” that time has passed. Id. at 72. Defendants have not carried the burden of showing that the male-only registration requirement continues to be substantially related to Congress’s objective of raising and supporting armies.

 

6 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.

[Murfdogg21 4,425]

Are you automatically registered these days or is there a penalty for not registering? When I turned 18, almost 20 years ago, a couple of my (cowardice?) friends thought they had somehow cheated the system by not registering and that they would avoid service if there was ever a reinstitution of the draft. 

[Hank Scorpio 17,731]

15 minutes ago, Murfdogg21 said:

Are you automatically registered these days or is there a penalty for not registering? When I turned 18, almost 20 years ago, a couple of my (cowardice?) friends thought they had somehow cheated the system by not registering and that they would avoid service if there was ever a reinstitution of the draft. 

Legally speaking, they can only draft you if you register. It's a pretty big loop hole. 

[Js1 85,574]

1 hour ago, Murfdogg21 said:

Are you automatically registered these days or is there a penalty for not registering? When I turned 18, almost 20 years ago, a couple of my (cowardice?) friends thought they had somehow cheated the system by not registering and that they would avoid service if there was ever a reinstitution of the draft. 

If you don't register:

No access to federal student loans or grants
For individuals who are not citizens and are required to register and don't, you will be denied citizenship
Not eligible for any federal jobs
Possible $250k fine and 5 years in jail - if they catch you I guess
 

A handful of states will automatically register you when you get a DL.  Texas is not one.  Texas will also declare you ineligible for state student financial assistance if you don't register.