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Federal judge rules male-only draft is unconstitutional

A federal judge who ruled the Selective Service System's men-only registration unconstitutional late Friday rejected the reasoning of a 1981 Supreme Court decision, opting for the recent women's rights rationale of Justice Ruth Bader Ginsburg and the contemporary court.

Posted: Feb 25, 2019 4:42 PM

(CNN) -- A federal judge who ruled the Selective Service System's men-only registration unconstitutional late Friday rejected the reasoning of a 1981 Supreme Court decision, opting for the recent women's rights rationale of Justice Ruth Bader Ginsburg and the contemporary court.

US District Court Judge Gray Miller, based in Houston, spurned the government's argument about excluding women, based partly on their interest and readiness for combat, by declaring, "this argument smacks of archaic and overbroad generalizations about women's preferences."

Miller said that while "historical restrictions on women in the military may have justified past discrimination," men and women now have many similar roles.

"If there ever was a time to discuss the place of women in the Armed Services, that time has passed," he wrote. Miller said the Selective Service had not shown that the male-only registration requirement was "substantially related to Congress's objective of raising and supporting armies."

Congress eliminated the draft in the early 1970s, but all men ages 18-25 are required by law to provide basic personal information to the Selective Service System.

The judge's decision, favoring a group known as National Coalition for Men and two men of registration age, would have no immediate effect. It did not block the government's current policy. Any appeal by the agency would go to the New Orleans-based 5th US Circuit Court of Appeals before it would reach the Supreme Court.

It is uncertain whether it would reach that level. The Selective Service System had urged Miller to reject the case, largely because the National Commission on Military, National, and Public Service, appointed by Congress, is now studying the male-only registration policy.

Irrespective of the fate of the case on appeal, National Coalition for Men v. Selective Service System recalls practice and precedent of another era.

The government agency relied heavily on a 1981 Supreme Court decision, Rostker v. Goldberg, that said women could be excluded from the draft because they were not "similarly situated" with men for draft purposes. That decision highlighted the fact that women could not serve in combat.

"In the nearly four decades since Rostker, however, women's opportunities in the military have expanded dramatically," Miller observed. "In 2013, the Department of Defense officially lifted the ban on women in combat."

He cited Ginsburg's majority opinions in equal rights cases since then for greater scrutiny on the military policy, the 1996 US v. Virginia and 2017 Sessions v. Morales-Santana.

"Typically, the defender of legislation that differentiates on the basis of gender must show 'at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.'"

He acknowledged the governmental objective of raising and supporting armies but did not accept arguments that requiring women to register might affect female enlistment "by increasing the perception that women will be forced to serve in combat roles."

"At its core, [the Selective Service System] argument rests on the assumption that women are significantly more combat-averse than men," Miller wrote, adding that no evidence was offered to support that claim, which he deemed "an ancient canard" about women.

"Further, under Rostker, the dispositive issue is whether men and women are similarly situated in regard to the draft," Miller wrote. "Thus, the relevant question is not what proportion of women are physically eligible for combat -- it may well be that only a small percentage of women meets the physical standards for combat positions."

But Miller added, a similarly small percentage of men may also be eligible for combat, which would offer no reason to discriminate against women.

CORRECTION: This story has been updated to correct a quote from the judge's order.

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