HOUSTON (CN) – The government’s men-only mandate for military draft registration is unconstitutional, a federal judge ruled late Friday, declining to postpone a legal challenge until a national commission mulling changes to the draft releases its final report next year.
Although the U.S. military is now an all-volunteer force, to stay prepared for a major war the Military Selective Service Act requires men ages 18 to 25 to register with the Selective 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 Selective Service System in April 2013, claiming the male-only draft registration rule violates equal protection rights under the Fifth Amendment’s Due Process Clause.
U.S. District Judge Gray Miller denied the Selective Service System’s motion to dismiss the class action last year. Miller sided with the challengers again on Friday when he denied the government’s motions for summary judgment and for a stay.
The government argued the case is not ripe for judicial review because Congress recently established the National Commission on Military, National, and Public Service to weigh whether lawmakers should modify or abolish the current draft registration requirements.
It said a court ruling could disrupt the commission’s deliberations, which could render the National Coalition for Men’s arguments moot if the commission recommends entirely ending military draft registration. Its report is set for release in 2020.
But Judge Miller wrote the case could be stayed indefinitely if he waits for Congress to act on the commission’s recommendations, and Congress is under no obligation to follow the recommendations.
“The fact and nature of future congressional action is highly speculative. Thus, the court’s time and effort is likely best spent on the case at this stage, rather than at some indefinite time in the future,” he wrote.
Miller, a George W. Bush appointee, wrote that the “continuous and indefinite violation of plaintiffs’ constitutional rights” justifies resolving the class action without staying the case.
As of December, there were 218,864 women in the military, about 16 percent of the more than 1.3 million total members, according to the Department of Defense.
The government said the challengers are trying to intrude on Congress’ authority to oversee military affairs, arguing their claims are precluded by the U.S. Supreme Court 1981 ruling in Rostker v. Goldberg. The 6-3 majority in Rostker held that because women were excluded from combat, they were not “similarly situated” as men, and there was no need to draft them, so the male-only rule was constitutional.
But since the Department of Defense lifted bans in 2013 and 2015, women are now eligible to serve in all positions in the military, including the front lines, so they are now similarly situated in regards to combat eligibility, Judge Miller wrote in Friday’s 19-page order.
Combat jobs officially opened up for women in 2016, and they are now allowed to try to qualify for Special Forces units.
“While historical restrictions on women in the military may have justified past discrimination, men and women are now ‘similarly situated for purposes of a draft or registration for a draft.’ If there ever was a time to discuss ‘the place of women in the Armed Services,’ that time has passed,” Miller wrote.
Angelucci, the class counsel, said a ruling that the draft discriminates against men is long overdue.
Though Miller’s order did not mandate women must now register for the draft, Angelucci predicted they will eventually be required to do so.
“Even without a draft, men still face prison, fines, and denial of federal loans for not registering or for not updating the government of their whereabouts. Since women will be required to register with the Selective Service, they should face the same repercussions as men for any noncompliance,” he said in a statement.
The Pentagon did not immediately respond Monday morning to a request for comment.