By Ashley Willard
As it stands, the Military Selective Service Act (“MSSA”) only impacts males.[1] The MSSA gives the President authority to issue a proclamation requiring all male citizens and most male noncitizen residents between the ages of eighteen and twenty-six to register with the Selective Service.[2] The current registration period began when President Carter issued Presidential Proclamation 4771 in 1980.[3] The registration process facilitates conscription in the event that a national emergency necessitates a military draft.[4] Any man who knowingly fails to register may face criminal penalties of up to five years in prison and up to $10,000 in fines.[5] Other penalties include ineligibility for federal student aid or federal job training.[6]
Nearly forty years ago, the Supreme Court upheld the constitutionality of the MSSA in Rotsker v. Goldberg.[7] The Court emphasized then recent congressional findings in which Congress considered extending the MSSA to include women, but ultimately declined to do so.[8] In these findings, Congress highlighted two main facts—(1) the purpose of the draft is mass mobilization of combat troops, and (2) women were ineligible for combat roles at the time.[9] Therefore, the Court held that men and women were not similarly situated with regard to the draft because of the combat restrictions on women, and therefore there was no Fifth Amendment violation.[10]
However, in February 2019, a federal district court judge in Houston found that the male-only draft registration requirement was indeed unconstitutional on Fifth Amendment equal protection grounds.[11] The court reasoned that “Rotsker is factually distinguishable” because of the substantial changes in the facts underlying that decision.[12] Women’s opportunities in the military have greatly expanded since 1981.[13] In fact, the doors opened completely for women in 2015 when Defense Secretary Ash Carter rescinded the combat-exclusion policy that had previously kept women from serving in combat roles.[14] The district court highlighted that “women are now eligible for all military service roles, including combat positions.”[15] Applying intermediate scrutiny, the court held that the government did not meet its burden to show that the male-only registration requirement continues to be substantially related to the admittedly important governmental interest of raising and supporting armies.[16]
The government appealed, and in August 2020, the Fifth Circuit reversed, holding that Rotsker controlled until the Supreme Court itself decided to reverse its precedent.[17] The court of appeals echoed the lower court’s assertion that “the factual underpinning of the controlling Supreme Court decision has changed,” but emphasized that appeals courts do not have “license to disregard or overrule that precedent.”[18] Yet, while the MSSA remains binding precedent, the winds of change have clearly started to blow.
In 2017, Congress tasked the National Commission on Military, National, and Public Service to conduct a review of the military selective service process.[19] In their report, issued in March 2020, the Commission concluded that it was time to extend the registration requirement to women.[20] First, there are prudent reasons for including women in the draft—seven out of every ten young Americans would not meet the physical, moral, educational, and health standards required for service.[21] Department of Defense research indicates that women are equally likely to qualify for service as men, and excluding half the pool of eligible individuals would be “imprudent.”[22] Second, there are ethical and moral reasons for doing so—the “current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women.”[23]
If Congress is persuaded by this recommendation and passes legislation amending the MSSA, there will be no need for the Supreme Court to revisit the issue.[24] There have been several failed legislative attempts to amend the MSSA and require women to register with the Selective Service.[25] The most promising attempt began with the Senate Armed Services Committee recommending that Congress amend the MSSA to require women to register; it ended instead with the creation of a commission to report on the issue, as discussed above.[26] A different report, published by the Congressional Research Service, proposed three routes that Congress could take to wade into the debate.[27] First, Congress could amend the MSSA to require women to register for the Selective Service.[28] Second, Congress could simply amend the MSSA to provide a new justification for why women should not be required to register, to preempt judicial review.[29] Third, Congress could repeal the MSSA altogether.[30] It is highly unlikely that Congress will pursue this final route.
If Congress takes no action, then resolution of this issue rests with the judicial system. As discussed above, the facts relied on by the Rotsker Court have changed substantially and the circumstances no longer seem to support the constitutionality of the MSSA. The Court has demonstrated a willingness in the past to overrule prior decisions based on subsequent factual developments.[31] Therefore, if the Court takes up the issue, it is likely that it will overturn Rotsker and declare a male-only draft unconstitutional.
Whether the issue is tackled in Congress or by the Court, we can expect a resolution in the not-so-distant future. Ladies, get ready.
[1] 50 U.S.C. § 3802 (“[I]t shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who . . . is between the ages of eighteen and twenty-six, to present himself for and submit to registration) (emphasis added).
[2] Id. See also Jonathan M. Gaffney, Cong. Rsch. Serv., LSB10491, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft 1 (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10491.
[3] Proclamation No. 4771, 3 C.F.R. § 82 (1981), reprinted in 50 U.S.C. § 3802 app. at 742 (2018).
[4] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).
[5] 50 U.S.C. § 3811(a)–(b).
[6] Id. § 3811(f).
[7] 453 U.S. 57 (1981).
[8] Id. at 73.
[9] Id. at 77.
[10] Id. at 78–79. The MSSA, a federal law, implicates the Fifth Amendment rather than the Fourteenth because the Fifth Amendment applies to actions of the federal government. See Barron v. Baltimore, 32 U.S. 243 (1833).
[11] Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), rev’d, 969 F.3d 546 (5th Cir. 2020). Marc Angelucci, counsel for the National Coalition for Men, was killed earlier this year by fellow men’s rights activist Den Hollander, a former member of NCFM who had been ousted from the group in 2015 after making threats on NCFM’s president for passing him over as co-counsel in this case. Sonia Mohge & Paul P. Murphy, Friend of Slain California Attorney Says Suspect in Attack on Judge’s Family Had a Grudge Against Him, CNN (Jul. 22, 2020), https://www.cnn.com/2020/07/22/us/hollander-angelucci-judge-salas-shooting/index.html.
[12] Nat’l Coal. for Men, 355 F. Supp. 3d at 575.
[13] Id. at 576.
[14] Nat’l Comm’n on Mil., Nat., and Pub. Serv., Inspired to Serve: The Final Report 114 (2020), https://inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf [hereinafter Inspired to Serve]. See also Cheryl Pellerin, Carter Opens All Military Occupations, Positions to Women, DOD News (Dec. 3, 2015), https://www.defense.gov/Explore/News/Article/Article/632536/carter-opens-all-military-occupations-positions-to-women/#:~:text=Defense%20Secretary%20Ash%20Carter%20announced,open%20to%20women%2C%20without%20exception.&text=%E2%80%9CThey’ll%20be%20allowed%20to,into%20combat%2C%22%20Carter%20added.
[15] Nat’l Coal. for Men, 355 F. Supp. 3d at 576.
[16] Id. at 581.
[17] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).
[18] Id. at 549-50.
[19] Gaffney, supra note 2, at 3.
[20] Inspired to Serve, supra note 14, at 115.
[21] Id.
[22] Id. Actually, the reported statistics indicate that women are slightly more likely to qualify for service (29.3 percent) than their male counterparts (29 percent). Id.
[23] Id.
[24] While the National Coalition for Men has not yet petitioned the Supreme Court for review, its website indicates that it plans to, as it is currently “exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.” Nat’l Coalit. for Men, https://ncfm.org/ (last visited Oct. 6, 2020).
[25] Gaffney, supra note 2, at 3.
[26] See supra notes 19–23.
[27] Gaffney, supra note 2, at 4.
[28] Id.
[29] Id. The government offered two such justifications in National Coalition for Men: (1) the requirement of female conscription into combat roles might reduce female enlistment by increasing the perception that women would be forced to serve in combat roles; and (2) the administrative problems of drafting women, who are treated differently with regard to “dependency, hardship, and physical standards.” 969 F.3d 546, 579–80 (5th Cir. 2020). The court outright rejected the first as an “archaic and overbroad generalization” that women are more combat-averse than men, so that justification will unlikely be used to support future legislation. Id. at 579. While the court ultimately also rejected the second, they did so in part because of the standard of review. The court indicated that if Congress were to make a “studied choice” based on male and female rates of physical eligibility, the administrative justification might stand in the future. Id. at 581. However, as discussed in supra note 22, women are actually more likely to be physical eligible than men. Thus, while Congress might be able to find a satisfactory administrative justification, they probably will not be able to justify the continued exclusion of women based on rates of physical eligibility.
[30] Gaffney, supra note 2, at 4.
[31] Cong. Rsch Serv., R45319, The Supreme Court’s Overruling of Constitutional Precedent 17–18 (2018), https://www.everycrsreport.com/files/20180924_R45319_3cafb6dc6b134c9a1c83eff9bfb780a3b904bd3a.pdf.
