After Court Ruling, Here's What's Next for Women and the Draft

U.S. Marine Corps recruits with Platoon 4030, Papa Company, 4th Recruit Training Battalion, execute a rifle salute during an initial drill evaluation June 25, 2018, on Parris Island, S.C. (U.S. Marine Corps photo/Dana Beesley)
U.S. Marine Corps recruits with Platoon 4030, Papa Company, 4th Recruit Training Battalion, execute a rifle salute during an initial drill evaluation June 25, 2018, on Parris Island, S.C. (U.S. Marine Corps photo/Dana Beesley)

A federal judge's decision Friday that the law requiring men -- but not women -- to register for a U.S. military draft is unconstitutional has no immediate impact on women or the U.S. Selective Service System.

But it does revive debate about whether the country needs a military draft system and, if so, whether all 18-year-olds, regardless of gender, should be required to register.

Judge Gray Miller of the U.S. Southern District of Texas ruled Friday that the Military Selective Service Act discriminates on the basis of gender. He said the U.S. Selective Service System's arguments in defense "smacked of 'archaic and overbroad generalization about women's preferences.'" The arguments, as interpreted by Miller, included concerns that a draft for both genders would have a negative impact on military recruiting because women might believe they will be forced into combat positions if they enlist.

"At its core, the defendant's arguments rest on the assumption that women are significantly more combat-averse than men," Miller wrote.

The ruling does not order the federal government to change its policy on who must register, nor does it make any recommendation to Congress, which would have to change the laws governing the Selective Service System to require women to sign up.

Miller's decision comes as a congressional commission weighs the future of national service, including draft registration for women and men. The National Commission on Military, National and Public Service is expected to release a report next year on recommendations for the Selective Service System and other opportunities for young people within the federal government.

Dr. Joe Heck, a former Nevada congressman who chairs the commission, said Monday that Miller's ruling was not unexpected, but that his 11-person commission will proceed unaffected with its mandates, which include making recommendations on the future of the draft registration system.

"The first question that we need to answer is, do we need the Selective Service System at all? We are looking at it very closely," Heck said. "[The United States is] spending $24 million a year to maintain a system we haven't used since 1973, so one of the things we want to review is, are there other ways? In a national emergency that requires a mass mobilization, are there other alternatives?"

A system for conscription has been used off and on since the Civil War. The Selective Service System was created in 1917 to ensure that the federal government had the ability to draft all eligible men as needed for war. The draft was abolished in 1973 by President Richard Nixon, and registration for the Selective Service System was suspended in 1975. However, under the administration of President Jimmy Carter in 1980, it was revived to ensure rapid mobilization in an emergency.

Support for women registering for the system gained steam after the Defense Department abolished all restrictions on women serving in combat positions in 2013. Several plaintiffs, including the National Coalition for Men (NCFM), subsequently filed lawsuits challenging the "men-only" requirement of Selective Service. In 2016, Congress created the blue-ribbon panel to study the issue.

On Monday, Harry Crouch, president of the NCFM, called Miller's decision "momentous" and said it is likely to place pressure on the commission and elected representatives to consider changing the system.

"If they want to keep the Selective Service System, we are OK with that, but it has to be fair for everybody because right now, it's not. You have men, if they fail to register, lose their right to vote; they can lose their driver's license; they can be imprisoned. I don't think they have been, but it's on the books ... they really can be disenfranchised."

In a statement on its Facebook page, the Selective Service System said no change to the process can occur without new legislation. The system "does not make policy and follows laws as written. As such, until Congress modifies the Military Selective Service Act or a court orders Selective Service to change our standing operation, the following remains in effect," referring to the requirement that men ages 18-25 register, while women are not required to do so.

Defense Department officials have told Congress they support preserving the Selective Service System and welcome the inclusion of women. In a report to Congress in 2017, they argued that a future draft likely would focus on highly technical skills that are in short supply in general and, accordingly, "targeting a draft to only 50 percent of the available population would severely limit" the department's capabilities in a national emergency.

Regarding Miller's ruling, Air Force Lt. Col. Carla Gleason, a Pentagon spokeswoman, referred request for comment on the case to the Justice Department. She added, however, that the Defense Department "needs and appreciates every qualified patriot who is willing and able to serve."

The Justice Department declined to comment on the ruling.

Heck said the ruling underscores the importance of his panel's work, adding that the group is holding public hearings throughout the country in the coming months, including meetings in Washington, D.C., on April 24 and 25.

He also encouraged Americans to weigh in on the issues via the commission's website.

"We have looked at a range of options regarding Selective Service since we began. ... What, if any, modifications are necessary to better reflect the needs of a 21st-century Department of Defense, to include whether women should register; should the registration be more skills-based; should there be periodic re-registration or updates. These are the questions we have been considering."

If the Justice Department appeals Miller's ruling, the case would be considered in the 5th Circuit Court of Appeals.

Heck said the commission's final report is expected in March 2020, and it will then be up to Congress to decide whether to implement the group's recommendations, which could include requiring all 18-year-olds to register, eliminating the system entirely or introducing volunteer registration.

A representative for the Service Women's Action Network, an advocacy group for female troops and veterans, said the organization believes the entire system should be abolished. But, added retired Navy Capt. Lory Manning, a SWAN spokeswoman, the group supports Miller's ruling as long as the Selective Service continues to exist.

"It's about time women register for Selective Service too," she said.

-- Patricia Kime can be reached at Follow her on Twitter at @patriciakime.

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