Group Sues Over Lack of Draft Registration for Women

Friday, April 5, 2013

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Group Sues Over Lack of Draft Registration for Women

By a MetNews Staff Writer

A group dedicated to eliminating what it says is unjust discrimination against men filed suit yesterday to end the federal government’s practice of requiring men, but not women, to register for a possible future military draft.

The National Coalition for Men sued the U.S. Selective Service System in the U.S. District Court of Appeal for the Central District of California. It contends that limiting draft registration to males violates the Fifth and Fourteenth Amendments.

While military conscription ended in the United States 40 years ago as the Vietnam War was coming to an end, male citizens and immigrants between the ages of 18 and 25 living in the United States, still must register with Selective Service.

A challenge similar to the NCFM’s was rejected in Rostker v. Goldberg (1981) 453 U.S. 57. The court there held that men and women were not similarly situated in the U.S. military because women were excluded from combat, therefore women did not have to register.

Dissenting Justice Thurgood Marshall wrote:

“The Court today places its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women.’”

The NCFM, represented by Los Angeles attorney Marc Angelluci, who is vice president of the organization, contends that Rostker is no longer binding in light of then-Defense Secretary Leon Panetta’s announcement in January that women would be eligible to serve in all roles within the military, including combat positions at every level, unless the Pentagon is persuaded to exclude specific positions.

The changes—which followed the first comprehensive review of the role of women in the military since 1994—are to take effect in 2016.

The NCFM asked for injunctive and declaratory relief, in the form of orders requiring that the government either extend the registration requirement to women or eliminate it.

While there have apparently not been any criminal prosecutions for violations of the registration requirement since actual conscription ended, failure to register can still result in fines of up to $250,000 and a prison term of up to five years under Sec. 462 of the Military Selective Service Act.

Men who fail to register can also be denied eligibility for federal and state benefits including jobs, financial aid, citizenship, loans, and job training.

In a statement, NCFM urged the president and lawmakers “to end the institutional sex discrimination that requires only men to register for the draft.”

The group said:

“The ancient canard is gone, because women are now eligible for combat roles in all branches of the U.S. military. There is no longer any legal justification for continuing the unequal treatment of our draft age population based solely on their gender. The Selective Service System should treat men and women equally, including imposing penalties against both men and women for failing to register.”

Eugene Volokh, who teaches constitutional law at UCLA School of Law, said the recent policy changes are unlikely to result in an immediate change in the attitude of the courts.

“I’m inclined to say [the lawsuit] probably isn’t going to go far,” Volokh told the MetNews. “Courts are likely to defer to the government’s judgment about what works for the military,” as they traditionally have, he suggested.

Changes in societal attitudes, he commented, have forced the military to make “political decisions that Congress can go back on at any time.” The judiciary is unlikely to wade into the area too deeply because the political branches could decide in the future that the “experiment” of having women serve in combat “hasn’t worked out very well.”

Even if women succeed in previously all-male positions, Volokh said, Congress might still decide that it wants something less than “full-on sex integration” of the armed services. In that event, the burden of having women register for the draft, even though large numbers might be deferred or found unfit for duty in the event that conscription actually became necessary, might be considered a needless expense, he said.

The case is National Coalition for Men v. U.S. Selective Service System, 13-cv-02391-DSF-MAN.