Photo by Israel Palacio on Unsplash
Logan Kline, Associate Member, University of Cincinnati Law Review
While the United States hasn’t implemented military conscription in nearly a half-century, the legal possibility of a military draft for American men still remains. The draft lottery and conscription may seem like the object of history books for many Americans, but registration for the draft is still mandatory to this day for all American men. Within 30 days of his 18th birthday, every man in the United States is required by the Military Selective Service Act to register with the Selective Service System, making him eligible for military conscription.
The last draft in the United States was called on December 7, 1972, and the authority to induct into the military based on this draft expired on June 30, 1973. The last draft lottery was held on March 12, 1975, assigning 366 numbers to all potential birth dates in a given year. Each birth date was placed in a blue capsule and then drawn from a container to determine the order, with the birthdates pulled from the container first being the first called to serve. For example, just one of the many birthdates called during the draft lottery was October 15, 1950. If a man was born the day before or after, he was free to go about his life, but being born on October 15th made him a soldier in the Vietnam War, whether he liked it or not.
When the draft ended in 1973, women made up only two percent of the enlisted forces in the United State military and eight percent of the officer corps. As of 2018, those numbers have grown exponentially, with women representing sixteen percent of the enlisted forces and nineteen percent of the officer corps. However, if the draft were to be called tomorrow, only men would be called to action to defend the nation, as per 50 U.S.C.A. § 3802, which proclaims that registration is the duty of “every male citizen of the United States.” Recently, in National Coalition for Men v. Selective Service System, the exclusively male draft system was challenged as unconstitutional under the Fifth Amendment right to freedom from sex discrimination.
II. Legal Background
Just last month, the United States Fifth Circuit Court of Appeals held that the male-only military draft did not violate the constitutional right against sex discrimination. The case was filed by James Lesmeister, Anthony Davis, and the National Coalition for Men who sued the Selective Service System and its director for unlawful sex discrimination in the United States District Court for the Southern District of Texas. The district court granted the plaintiffs a declaratory judgment, holding that the draft policy only requiring males to register violated the Fifth Amendment to the United States Constitution. However, on appeal, the court in National Coalition for Men v. Selective Service System reversed the holding of the lower court, holding that United States Supreme Court precedent directly contradicted this finding, and that stare decisis bound the court to find in favor of the Selective Service System.
In its decision, the Fifth Circuit recognizes the storied history behind this question. As far back as 1980, President Jimmy Carter recommended to Congress that the laws governing conscription should be extended to cover women. However, after consideration, Congress declined to follow the President’s urgings. Just a year later, the United States Supreme Court would discuss the issue in Rostker v. Goldberg. Chief Justice Rehnquist delivered the opinion for the Court, holding that the male-only registration requirement was well within the constitutional powers of Congress and therefore constitutional. In the opinion, Justice Rehnquist highlighted that only men, not women, were allowed to occupy combat positions. Rehnquist went on to write that the Court should defer to Congress on matters of how to maintain the military. However, Justice Marshall saw the inherent failing at the heart of the majority’s opinion. In his dissent, Justice Marshall wrote the following:
The Court today places its imprimatur on one of the most potent remaining public expressions of “ancient canards about the proper role of women”… It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation. Because I believe the Court’s decision is inconsistent with the Constitution’s guarantee of equal protection of the laws, I dissent.
Since the Rostker decision, the male-only registration standard has been examined by Congress several more times, with the 2017 National Defense Authorization Act representing the most recent instance. The version of this bill that passed the Senate would have included women in the mandatory registration, but by the time the bill became law, this portion was replaced.
The Fifth Circuit Court reviewed all of this history, demonstrating a thorough knowledge of the historical canvas on which it painted. However, the court held that it could not “disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key facts implicated in the Supreme Court’s decision have changed.” Therefore, the Fifth Circuit Court of appeals, bound by the Supreme Court’s decision in Rostker, upheld the constitutionality of the all-male registration requirement.
The factual basis that supported the Supreme Court decision in Rostker has all but fallen away, leaving the decision as an isolated vestige of an antiquated school of thought. Women proudly serve in the military today in ever-increasing numbers, burying Justice Rehnquist’s argument regarding women in combat positions. If the premise of a military draft is to supply the most able-bodied Americans to serve, then the logical conclusion is to include women in the registration requirement, which would more than double the size of the available draftees.
Beyond the shortcomings on a factual level, the Rostker holding also fails to uphold the Constitutional rights of both men and women. First, as Justice Marshall so eloquently opined in his dissent, a male-only draft reinforces the historical, oppressive norms regarding women’s place in society. If the United States reaches an impasse so extreme that the nation is forced to resort to the draft after a half-century dormancy, that challenge will call for the best and brightest the country has to offer. Women have a right to engage with their civic duty in the same way as men, and the Court’s failure to enforce this is a denial of women’s rights.
Further, requiring men by force of law to register for the draft violates their Fifth Amendment right against sex discrimination. If a war called for the revival of the draft, men would be forced into the service while women, who are equally capable of defending the nation and serving in all branches of the military, would not be. This is a clear violation of the Fifth and Fourteenth Amendments of the United States Constitution, as sex would be the deciding factor in eligibility for state-driven conscription.
The Fifth Circuit in National Coalition for Men v. Selective Service System applied the law presented to it properly and cannot be faulted for following the binding precedent of the Supreme Court. However, the factual underpinnings of the Supreme Court’s decision in Rostker v. Goldberg have changed drastically in the past 39 years. Now, the onus falls on the current Supreme Court to grant cert. The Court must re-evaluate the flawed premise that women should not be called upon in the same way as men to defend our nation in its greatest time of need.
In anticipating the Court’s decision, it’s hard to imagine that it would not overturn the Fifth Circuit’s holding in National Coalition. The Fifth Circuit all but says that it would rule differently if it were given the latitude to do so under stare decisis. Further, this issue is not as facially charged with the same political divisiveness that has split the Court so often in recent years. In ruling against the male-only draft requirement, the Court could eliminate a remnant of inequity and move the United States one step closer to fulfilling its foundational promise of equality.
 Vietnam Lotteries, Selective Service System, https://www.sss.gov/history-and-records/vietnam-lotteries/#:~:text=The%20last%20draft%20call%20was,suspended%20on%20January%2027%2C%201976, (last visited Sept. 11, 2020).
 Id.; 50 U.S.C.A. § 3801 (West 2020).
 Mike Varano and Josh Miller, Would Your draft number have been called? USA TODAY Networkhttps://www.usatoday.com/vietnam-war/draft-picker, (last visited Sept. 11, 2020).
 Demographics of the U.S. Military, Council on Foreign Relations (July 13, 2020), https://www.cfr.org/backgrounder/demographics-us-military.
 50 U.S.C.A. § 3802 (West 2020).
 Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546 (5th Cir. 2020); U.S. Const. amend. V.
 Id. at 550.
 Id. at 547; 42 U.S.C.A. § 1983 (West 2020).
 Id. at 549.
 Id. at 548.
 Rostker v. Goldberg, 453 U.S. 57 (1981).
 Id. at 83.
 Id. at 76-77.
 Id. at 80-82.
 Rostker v. Goldberg, 453 U.S. 57 (1981) (Marshall, J. dissenting).
 Id.; Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (Marshall, J., concurring).
 Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546,548 (5th Cir. 2020).
 Id. at 550.