HOUSTON (CN) — The National Coalition for Men can proceed with its class action lawsuit challenging the government’s men-only mandate for registering for the military draft, a federal judge ruled on Friday.
Although the U.S. military is now an all-volunteer force, to stay prepared for a major war the Military Select Service Act requires men age 18 to 25 to register with the Select Service System.
The government held its last draft, for the Vietnam War, in 1973.
All men, including undocumented immigrants, who do not register and keep their contact information current can be sentenced to five years in prison, fined up to $250,000 and be disqualified from federal financial aid and citizenship, though no man has been prosecuted for failing to register since the 1980s.
The National Coalition for Men, represented by Marc Angelucci in Los Angeles, sued the Select Service System in April 2013, claiming the male-only draft registration rule is unconstitutional gender discrimination. The Pentagon in January 2013 lifted a ban on women serving in front-line combat positions.
The coalition seeks an injunction ordering the government to make both men and women register for the draft.
As of February there were 213,851 women in the military, about 16 percent of the 1.3 million total members, according to the Department of Defense.
U.S. District Judge Gray Miller on Friday denied the government’s motion to dismiss the coalition’s class action.
The government claimed the coalition’s co-plaintiffs, James Lesmeister and Anthony Davis, lack standing, as neither has been drafted, nor are they at risk of being prosecuted, because they have registered for the draft.
“Regardless, both have a continuing obligation to update SSS with changes to their information. That obligation, paired with the requirement to register with SSS, constitutes an injury sufficient for Article III standing,” Miller wrote.
In its dismissal motion, the government said the challengers are trying to intrude on Congress’s authority to oversee military affairs, and their claims are precluded by the U.S. Supreme Court 1981 ruling in Rostker v. Goldberg, involving men who made similar sex-discrimination arguments about draft-registration rules. Justices Byron White wrote a dissent, joined by Justice William Brennan, who also joined a separate dissent by Justice Thurgood Marshall.
The 6-3 majority in Rostker held that because women were excluded from combat, there was no need to draft them, so the male-only rule was constitutional.
But Miller ruled that the coalition has made a viable gender discrimination claim under the Fifth Amendment’s equal protection clause, due to the military’s new policy of letting women fight on the front lines.
“Regarding Rostker’s holding that the male-only draft did not violate the Constitution, the factual circumstances of this case are different. … Now, women can serve in combat roles,” Miller, a George W. Bush appointee, wrote in an 8-page order.
The coalition filed the lawsuit in April 2013 in the Central District of California. U.S. District Judge Dale S. Fischer dismissed it, but the Ninth Circuit reversed and remanded. Fischer again nixed the coalition’s claims in November 2016, finding it lacked standing since its only co-plaintiff, James Lesmeister, was not a coalition member.
Fischer transferred the case to the Southern District of Texas because Lesmeister lives near Houston.
The coalition filed an amended complaint in August 2017, adding class claims and its member Anthony Davis as a plaintiff. Judge Miller found the addition of Davis was enough for the coalition to establish “associational standing.”
The coalition, founded in 1977, is based in San Diego, California. It helped bring a lawsuit in 1985 against Hancock International Airport in Syracuse, New York, for having diaper-changing tables only in the airport’s women’s restrooms.
Settlement of that case led to the placement of changing tables in men’s bathrooms throughout the United States, the coalition says on its website.
Its attorney, Marc Angelucci, is vice president of its board. He started its Los Angeles chapter in 2001.
Angelucci said in a statement Sunday the coalition is pleased with Miller’s order. But he said its goal is not necessarily to force the government to make women sign up for the draft.
“NCFM takes no position on whether the best approach is to end mandatory draft registration or to require both men and women to register. Nor does NCFM take any position as to whether women should be in combat, as the draft can include noncombat positions. As a men’s rights organization, NCFM’s concern is with the unconstitutional sex discrimination against men. How to resolve the illegality is up to the federal government,” he said.
The Department of Justice did not respond Sunday to an email seeking comment on Miller’s order.