NEW ORLEANS -- Weeks before a government commission weighs in on the subject, a federal appeals court panel was urged Tuesday to rule unconstitutional the military's all-male draft registration system.
But the three members of the 5th U.S. Circuit Court of Appeals appeared skeptical that they should do so in light of a 1981 Supreme Court ruling that upheld the men-only draft registration system.
Judges Carl Stewart, Don Willett and Jacques Weiner questioned whether the 1981 precedent could be disregarded, even when the military decided in 2015 to allow women into combat roles.
“That doesn't free us to engage in anticipatory overruling does it?” Willett asked during Tuesday's hearing. The session was held before an audience of roughly 50 students, faculty members and other observers at Tulane University.
Marc Angelucci, an attorney arguing for the National Coalition for Men and two men challenging the male-only draft, said the 1981 case was decided at a time when women were largely absent from combat.
Having women in combat roles now significantly changes the circumstances, Angelluci said. And, he said, lower courts are not bound to outdated precedents when the facts change so significantly.
Arguing for the government, U.S. Justice Department lawyer Claire Murray said lower courts don't have the authority to overturn the Supreme Court precedent.
She added that the courts must defer to Congress in matters governing the military draft. Congress has not moved to require women to register.
She said Congress has legitimate considerations in determining whether to draft women in the event of a wartime emergency necessitating the return of conscription. Those considerations include anticipated mortality rates for women in combat, and the need for equipment and facilities for women drafted in equal numbers to men.
Those arguments are of little consequence, Weiner said, if the court holds that the 1981 Supreme Court ruling constitutes an insurmountable precedent.
The appeals panel is considering whether to uphold a Texas-based federal judge's 2019 ruling that the men-only draft is unconstitutional. It did not indicate when it would rule.
The U.S. government stopped drafting young men into the military in 1973. But every male must still register for the draft when he turns 18.
On March 25, a federal commission is scheduled to release a final report and recommendations on the draft — including whether the nation still needs a draft registration system, whether women should be required to register and whether other changes are needed.
The commission's chairman, former Republican U.S. Rep. Joe Heck of Nevada, has publicly supported requiring women to register for the draft.
“The Commission has been following this case as it progresses, making our work all the more relevant and important," Heck said in an emailed statement Monday.
Angelucci told the court Tuesday he will pursue the case no matter what the commission recommends.