Judge Rules Male-Only Military Draft Is Unconstitutional

A federal court judge in Texas has struck a blow for “feminism,” ruling Friday that a men-only draft is unconstitutional and represents an instance of “gender-based discrimination” under the Fifth and Fourteenth Amendments.

The San Diego Union-Tribune reports that “sided with a San Diego men’s advocacy group that challenged the government’s practice of having only men sign up for the draft” though the judge “stopped short of ordering the Selective Service System to register women for military service.”

Two men in Texas, who were then of age to register for the Selective Service System, filed suit against the government over the draft back in 2013, claiming that it was unfair to discriminate against women in the draft, particularly given that women now serve in front-line combat roles in the military, and are competing with men for some of the military’s most difficult roles.

A San Diego “men’s rights” group, the National Coalition for Men, eventually joined in the suit.

“This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the law,” the judge wrote in his decision. He added that a decision was needed because Congress has been debating the issue of drafting women for decades with no result.

According to the Supreme Court in the Obergfell case legalizing gay marriage across the country, the judge noted, the government has an obligation to make decisions on issues of gender equality quickly, and must determine immediately whether such discrimination serves “an important governmental interest today.”

The judge believes the time has come to rectify the problem, justifying his decision to upend 1980s guarantees exempting women from the Selective Service with a 2015 Defense Department order lifting all gender-based restrictions on military service and combat roles, noting that the DOJ’s intent, with the order, was clearly to eliminate all gender-based restrictions in the military across the board, USA Today reports.

He even went so far as to suggest that women may be better suited to some combat roles, giving the military an even greater excuse to explore bringing more women into the fold. “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,” the judge’s decision read.

Feminists have long fought for equal access to military roles once restricted to men only, but have stopped short of pushing for a gender-neutral Selective Service, even though other countries require both genders to register and serve equally.

The judge’s decision here does not require the government to make major changes to the Selective Service system just yet, and the plaintiffs seem to have won more of a symbolic decision than one that will make any real impact on women in the military, but the decision does signal a sea change in how courts could view the issue.

The National Commission on Military, National and Public Service is currently studying the issue and is expected to render a more concrete decision soon. That commission is also considering doing away with the draft altogether, given that the draft has not been used for decades, and its use was highly controversial during the war in Vietman.