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Ninth Circuit:
Males-Only Draft-Registration Requirement Is Constitutional
Panel Rejects Contention That ERA Was Adopted as 28th Amendment
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has brushed aside as meritless a man’s contention that the Equal Rights Amendment, having been ratified by three-fourths of the states, presently takes the form of the 28th amendment to the United States Constitution and that, under its terms, requiring males but not females to register with the Selective Service is impermissibly discriminatory.
Its memorandum opinion was filed Thursday.
Vikram Valame, now an undergraduate student at Georgetown, on June 20, 2023, at the age of 18—when he became obliged under the Military Selective Service Act to register, but didn’t—brought suit against then-President Joe Biden and others seeking to establish the unconstitutionality of the requirement. Valame’s action was partially dependent on the proposition that the ERA did go into effect.
The plaintiff’s position is that that the measure—which declares in §1 that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”—was activated in 2022 after a two-year delay following its ratification, as provided for in §3.
Although there was ratification by the requisite percentage of states, as specified in Article V of the Constitution, the archivist of the United States declined to certify and publish the amendment on the ground that approval occurred after a June 30, 1982 deadline set by Congress. The three-fourths mark was reached when Virginia ratified the proposed amendment—becoming the 38th state to do so—but that did not take place until Jan. 27, 2020.
2023 Decision
The Circuit Court for the District of Columbia on Feb. 28, 2023, in Illinois v. Ferriero, affirmed the D.C. District Court’s dismissal with prejudice of a mandamus action brought by Illinois and Nevada to force certification of the 28th Amendment, saying:
“[T]the States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.”
On Jan. 20, 2024, Magistrate Judge Nathanael M. Cousins of the Northern District of California cited that case as “persuasive authority” in dismissing Valame’s action without leave to amend. He wrote:
“[N]o 28th Amendment appears in the Constitution….Valame does not cite to any court authority finding otherwise….This Court finds the 28th Amendment’s lack of publication convincing evidence it does not now exist.”
Argument on Appeal
Valame argued on appeal:
“Article V states that constitutional amendments shall be valid ‘when ratified’ by three-fourths of the states…(emphasis added). The ‘when’ of an amendment’s effectiveness is thus coterminous with ratification, with no delay….Article V also explains who ratifies amendments: ‘the legislatures of three fourths of the several states’; there is no role for the Executive Branch in this process.”
The archivist, he pointed out, is “an Executive Branch official.” He wrote:
“The district court issued its decision despite repeated assurances by the United States and the Archivist himself that certification has no effect on the process of ratification. Unbroken precedent confirms that the government is correct; the Archivist’s ministerial duty to maintain federal records has never impacted the legal rights of private parties.”
Disputing the significance of the non-certification, Valame asserted:
“While the campaign for equality was hard-fought, by January 2020, three-fourths of the states had ratified the ERA. The Article V process was complete, and the ERA became valid for all intents and purposes as part of the Constitution of the United States.”
Ninth Circuit’s Opinion
The Ninth Circuit said in Thursday’s opinion, signed by Circuit Judge Patrick J. Bumatay and Senior Circuit Judges Barry G. Silverman and Richard C. Tallman:
“The district court properly dismissed Valame’s action because Valame failed to allege facts sufficient to state any plausible claim….We reject as meritless Valame’s contention that the Equal Rights Amendment was ratified as the Twenty-Eighth Amendment to the Constitution.”
Not discussed by the Ninth Circuit panel was Valame’s asserted basis independent of the ERA: the Equal Protection Clause of the Fifth Amendment.
The U.S. Supreme Court in its 1981 decision in Rostker v. Goldberg upheld the Selective Service Act against an equal protection challenge but, Valame argued, the basis of that decision has been eroded by subsequent developments.
Differentiates Decision
He wrote:
“In Rostker, the Supreme Court held that such a justification existed because ‘[s]ince women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft’….
“Since women are now able to participate in all career fields and duty positions of the military, Rostker’s own reasoning compels the conclusion that the male-only draft is unconstitutional.”
Valame’s operative pleading of Dec. 19, 2023, says:
“The United States Federal Government’s enforcement of a male-only draft is not narrowly tailored to serve a compelling governmental interest. Some women are more qualified than men subject to the draft even in combat-intensive roles. Almost 80% of U.S. military positions are non-combat roles that could be adequately filled by women.”
The case is Valame v. Trump, 24-369.
Valame said in a footnote in his brief on appeal that he “reserves the right to request that the Supreme Court directly overrule Rostker in a petition for certiorari.
Faced with the prospects of first seeking a rehearing by the panel or by the Ninth Circuit, sitting en banc, he commented on Friday:
“I will seek all legally appropriate review of the Ninth Circuit’s panel decision.”
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