An all-male draft has been ruled unconstitutional by a federal judge in Texas, declaring that the “time has passed” for debating the role of women in the army
A federal court ruling that it’s unconstitutional to require only men to register for the draft will increase the pressure on Congress to either expand the draft or eliminate it.
But as a practical matter, the decision by U.S. District Judge Gray Miller late Friday won’t change draft registration overnight. As of Monday, the Selective Service System still registers only men, and an 11-member commission appointed by Congress to study the issue is due to report back next year.
“The court ruling itself changes nothing as far as the commission is concerned,” said Joe Heck, the former Army general and congressman who chairs the National Commission for Military, National and Public Service.
That process could lead to any number of outcomes – only one of which is that women would be required to register for the draft.
Some questions and answers about women in the draft:
Q: Will the decision be appealed?
A: Justice Department spokeswoman Kelly Laco declined to comment Sunday. But lawyers involved in the issue say the government will probably have no choice but to appeal the ruling to defend an act of Congress. The next step would be the Fifth Circuit Court of Appeals in New Orleans.
Miller denied a stay of his ruling, so the government would likely seek first to temporarily block the ruling while it’s appealed.
Q: Didn’t the Supreme Court already decide this issue?
A: Yes. In 1981, the Supreme Court ruled in Rostker v. Goldberg that Congress had a reasonable basis to exclude women from the draft because at the time, combat positions were off-limits to women.
That law has not changed, Miller said. But the facts have.
“In the nearly four decades since Rostker, however, women’s opportunities in the military have expanded dramatically,” Miller said. “In 2013, the Department of Defense officially lifted the ban on women in combat. In 2015, the Department of Defense lifted all gender-based restrictions Thus, women are now eligible for all military service roles, including combat positions.”
Q: Has the draft registration process changed as a result of the decision?
A: In the short term, no.
Miller made a declaratory judgment finding that the current system is unconstitutional. But, notably, he did not issue an injunction. There is no immediate court order requiring any particular change to the Selective Service requirement.
The Selective Service System said Monday that it is continuing its operations as usual.
“As an independent agency of the executive branch, the Selective Service System does not make policy and follows the law as written,” legislative liaison Jacob Daniels said in a statement.
“As such, until Congress modifies the Military Selective Service Act or a court orders Selective Service to change our standard operating procedure, the following remains in effect: (1) Men between ages 18 and 25 are required to register with Selective Service and (2) Women are not required to register with Selective Service.”
Q: Does the decision mean women will be required to register with the Selective Service?
A: Not necessarily. If the district court’s ruling is upheld, it could mean one of three things:
► Women would have to register for the draft at their 18th birthday, just like men;
► Selective Service would be eliminated entirely, and neither men nor women would have to register; or
► Selective Service would become voluntary and men and women could continue to register, but would not lose any benefits if they fail to do so.
“There are several different potential outcomes that the commission is considering,” Heck said. “That’s why it’s so important that we talk not just to policy experts but the American public.”
The commission will hold a public hearing on the issue on April 24 and 25 at Gallaudet University in Washington, and is seeking public comment at inspire2serve.gov.
Q: What is the Pentagon’s position?
A: The Department of Defense wants to keep the Selective Service System as a backstop to the all-volunteer military. And in a report to Congress in 2017, it went on record to support including women.
“It would appear imprudent to exclude approximately 50 percent of the population – the female half – from availability for the draft in the case of a national emergency,” officials said at the time. “And, if a draft becomes necessary, the public must see that it is fair and equitable. For that to happen, the maximum number of eligible persons must be registered.”
Even if there’s never a draft, the Pentagon sees benefits to an all-volunteer force from including women in Selective Service. One such benefit: The number of recruiting leads that the Pentagon could target with direct mail would double.
Q: What is President Trump’s position?
A: Shortly before President Barack Obama left office, Obama expressed support for universal draft registration regardless of sex as “a logical next step.”
President Donald Trump has been mostly silent on the issue. In a 2017 memorandum to the commission studying the draft, Trump asked the panel to “ensure close examination of … the feasibility and advisability of modifying the Selective Service process to leverage individuals with critical skills for which the Nation has a need without regard to age or sex.”
Q: Why do we need Selective Service, and what happens to the draft if it goes away?
A: President Richard Nixon ended the draft in 1973, as the United States was attempting to wind down its involvement in the Vietnam War.
President Jimmy Carter created the Selective Service System in 1980, after Russia invaded Afghanistan. The intent was to identify a pool of young men available to be drafted in case of a national emergency.
But the United States drafted men into war even before draft registration, and could do so again.
The Constitution gives Congress the power to “raise and support Armies.” The Supreme Court has repeatedly ruled that this gives Congress the power of conscription.
Q: How are transgender people handled in the draft?
A: President Donald Trump has moved to ban transgender people from the military. According to the Selective Service System, the registration requirement is based on the sex observed at birth and not on gender identity. However, if the draft were to resume, men who had transitioned to women could file for an exemption.
While Friday’s court ruling did not specifically address the transgender issue, it made clear that men and women should be treated equally in draft registration.
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