Must Annie get her gun? Women, draft registration, and the Constitution

The U.S. military welcomes women who volunteer to serve in the infantry, but does the Constitution require the government to be ready to conscript unwilling women to serve in ground combat roles even if objective science shows that, as a group, they are significantly less physically-suited than men for those particular duties?  I grapple with this issue (and more) in Annie Get Your Gun: The Constitution, Women, and Involuntary Service in Combat,” an article just-published in a truly awesome issue of the Duke Journal of Gender Law & Policy (DJGLP) (found here) in which I was honored to participate.

What makes this discussion so timely is that earlier this month the Court of Appeals for the 5th Circuit heard oral argument in a case (that I’ll explore a bit below) which challenges the constitutionality of the U.S.’s male-only Selective Service registration process.

Some context:

Back in 2016 I wrote “Register Women for the Draft?  Not so fast” in which I essentially argued that the Constitution would not require registering women for the draft if the purpose was to obtain troops for ground combat, and if the data shows that only a small percentage of women will actually qualify for that role, and if the facts also show that all needed combat troops can be much more efficiently and effectively obtained from a male-only draft.  I said this as well:

I doubt the courts would override Congress’ determination as to the best conscription scheme to fill infantry billets, especially in the midst of the kind of serious national emergency which would necessitate a draft in the first place. 

After all, historically the judiciary has been reluctant to second-guess the findings of the elected branches of government in these sorts of issues.  In Gilligan v. Morgan (cited with approval in Rostker) the Court noted:

“[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.”

Judge Miller

Is the male-only draft still Constitutional?  The litigation…

Nevertheless, in 2019 U.S. District Judge Gray H. Miller held in National Coalition for Men et al v. Selective Service System et al, that the male-only draft registration process was unconstitutional.

He did so even though the Supreme Court in the 1981 case of Rostker v. Goldberg had upheld the constitutionality of a male-only draft.  The Rostker Court concluded that men and women were “simply not similarly situated for purposes of a draft” aimed at providing combat soldiers because there were then existing “combat restrictions” on women’s military service.

Judge Miller believes that since the policy restrictions excluding women from combat positions have since been removed, women are now “similarly situated” for purposes of the draft.

However, simply removing a policy restriction does not necessarily mean that the genders are truly “similarly situated” as to their respective ability to undertake the full scope of ground combat responsibilities. Whether a given group is “similarly situated” as another one involves more than merely assessing a policy.  Biological differences do matter and they can obviously determine if a group’s “situation” is factually similar or not.

For example, those in their twenties are, as a group, more physically-capable than septuagenarians for most ground combat tasks, so the two groups are not, in fact, “similarly situated” – irrespective of any policy restriction (or absence of the same).

Judge Salas

As I noted in the DJGLP piece, there was another related case in 2019, Kyle-Labell v. Selective Service.  In it Judge Esther Salas wrestled with a different permutation on the draft registration issue. It involved a female plaintiff who claimed various Constitutional injuries by not being allowed to register for the draft.

Although Judge Salas did permit the suit to go forward on an equal protection claim (because, like Judge Miller, she reasoned that women can now “serve in combat roles”), she nonetheless dismissed the plaintiff’s due process claim finding that “joining the military is not a personal right, and by inference neither is registration for the draft.”

Role of the courts

In light of Gilligan v. Morgan and other cases involving national security, I also don’t think it’s the appropriate role of the judiciary to second-guess the assessment made by Congress in this instance, particularly since it has chosen not to alter the statute in the years since the policy change.

Indeed, just a few weeks ago, the Supreme Court cited a number of previous rulings in reiterating in Hernandez, et al. v. Mesa that: “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy’ for which ‘the Judiciary has neither aptitude, facilities[,] nor responsibility.’”  Although Hernandez is not a draft registration case, it does support the view that some issues in the national security arena are best determined by the elected branches of government.

What about all the women who are physically-suited for ground combat?

Of course, it’s absolutely true some women can qualify for ground combat roles, but as the article details, there’s ample data to show the percentage is much smaller than for men.

Does that mean the Constitution would mandate, particularly in a time of crisis, that the government go through the bureaucratic process of drafting women to serve in ground combat units?  Here’s part of what I say in DJGLP :

But, yes, women ought to be required to register for the draft!

Consider this from the DJGLP article:

So, yes, I do think draft registration ought to be extended to women even though I don’t think doing so is constitutionally-mandated if the purpose is to obtain ground combat troops as is currently the case.

The National Commission

Could a change in the law happen?  Importantly, the Congressionally-mandated National Commission on Military, National, and Public Service is due to release its final report on March 25th.  It was tasked to mainly address these two issues:

  • First, do we still need the Selective Service System and, if so, does the current system require modifications?
  • Second, how can we, as a nation, create an ethos of service and increase participation in military, national, and public service?

Here’s what I wrote in my DJGLP essay:

 Please read the article – and the whole issue!

This post has only a few of the highlights from the full essay (found here) – and I hope you’ll read it, along the rest of the scholarship in what really is a terrific DJGLP issue (found here).  I also want to thank Denise Go, the Journal’s editor-in-Chief, and the rest of her superb team for the truly fantastic job they did!

With respect to my essay, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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